Cooperation in E-Discovery – Would Brandeis Agree with Rule 16 Efforts?

Cooperation, E-Discovery, Federal Rules of Civil Procedure (FRCP) 0 July 31, 2017 36 Aaron Taylor

While reading the numerous blogs and articles emphasizing increased efforts to have attorneys be more cooperative in their “meet and confers” and ongoing conferences, I happened to recall some legal work of Louis Brandeis before he ascended to the US Supreme Court.  Not that I’m a legal scholar, but I enjoy reading of the works of the great constitutional law judges – Brandeis, Holmes, Hand, etc.  In the wonderful Brandeis biography by Melvin Urofsky pictured here, he mentions Brandeis’s work in negotiating agreements for Interstate Commerce Commission (ICC) around 1910 between railroad owners and shippers.  Mr. Brandeis, perhaps one of the great idealists who lived his beliefs, had become enamored of what he called “scientific management”, first known as “Shop Management”, by Frederick Winslow Taylor.  This idealistic view basically proposed that management and workers could attain fair working conditions and productivity through cooperation – that is, management would provide decent waging, working hours and conditions; labor would be happy and would be willing to work harder and ultimately be more productive, leading to profits and success for the company and a satisfying life for workers.  Mr. Brandeis was successful his stance that companies and shippers could utilize this management system before the ICC at one point, but failed in following situations.  However, the scientific management system fell out of favor, being seen as simply a way to get more out of workers on the one hand, and too costly on the other.  The actual fault, as seen by Brandeis, was lack of commitment to the idealism on both sides needed for this to work.  Some companies were successful, some labor unions were also; but too often, corporate capitalism and labor both succumbed to greed and self-serving ends…perhaps, as many have said, they ran headlong into reality.  Brandeis himself admitted throughout his career that idealism may have been too strong a force oftentimes for him to see reality.

So, what the heck does this have to do with cooperation in E-Discovery?  My path here may be a bit obvious, but the conversation about cooperation – how to do it, will it work or fail, is it realistic – is hot and ongoing, especially with the implementation of the Amended Federal Rules of Civil Procedure (FRCP) – in this instance Rule 16.  The entire law profession has as one of its foundations, the fact of advocacy – that an attorney fights for the client’s position, arduously and continuously.  Everyone is familiar with the arguments, comments…sometimes snide comments, and observations that attorneys may sometimes carry advocacy to extremes.  That is part of the discussion around discovery that Rule 16, and the over-arching Rule 1, are there to alleviate.  Rule 1 states that parties are “to secure the just, speedy, and inexpensive determination of every action and proceeding”.  Pretty straightforward so far.  Rule 16(a) provides for the court to “order the attorneys and any unrepresented parties to appear for one or more pretrial conferences” (emphasis mine), basically to outline the matter and ensure proper and quick actions to resolve the matter in due course.  A bit more involved, but the intent is still clear – work together to get through this issue as quickly as possible in a manner fair to all.

Now comes the tricky part – idealism vs reality.  There are two attorney/client conversations that one can imagine (since they are privileged, we can only imagine): 1)Attorney and client agree that “we must work to find a resolution that is fair to us, but also fair and equitable to the opposition…it’s the right thing to do”; or 2)”We’re going to fight this thing to the bitter end – damn the torpedoes, full speed ahead!”  A quick time-out for a test here – which scenario is more likely?  Ok, time-in…from all responses I received (imagined), some version of #2 is more likely – surprise, surprise!  Attorneys just don’t like to compromise; but there’s more to the story…clients don’t like to lose, and expect not to lose if they’re throwing around big bucks, so they will pressure attorneys to not concede anything, but push forward.  And, of course, attorneys are ethically bound to provide the best representation they can.  But does that preclude “cooperation”, especially when prolonged matters keep the cash register ringing at the law firm?  And doesn’t “ethical and responsible representation” include advising clients of the best path, even if it isn’t the one the client envisions or desires?

So how can we expect the idealism as shown by Brandeis to prevail?  After all, he is considered one of the most accomplished jurists in our history; he was even described as “the attorney of the people” at one time (I went back and surfed through my highlights of his bio).  Or was his idealism misplaced in the give-and-take, rough-and-tumble world of litigation, where reality doesn’t recognize the supposed “weakness” of cooperation?  How then, did he succeed so greatly and so admirably?

There are two avenues that may help here:  First are the courts themselves – they are overwhelmed with discovery matters and cases, cannot for the most part even get a finger in the dike to stop the flood.  So they are pressing attorneys to meet, and meet again if necessary, to conclude matters in something close to a timely manner…if for no other reason than to avoid this.  Courts have increasingly told the parties to go back and work it out, as often as it takes.  They (courts) are relieved that the FRCP has seemingly intended to move the burden for cooperation off the bench and onto the shoulders of counsel.

The second incentive is the most obvious: the increasing and out-of-control costs of discovery.  Sooner or later, clients are going to say, “Enough…I can’t bleed anymore!”  An attorney who possesses that bit of idealism mixed with reality will provide the client with options that will most probably include some sort of cooperation (or give-and-take, to include my hyphen tendency).  So, perhaps with a mixture of client burnout and court nudging, cooperation may be the norm rather than the exception.  As Louis Brandeis so wisely envisioned in his idealism, there are possibilities for win/win…or at least, ok/ok situations.  It takes effort and a bit of that great idealism.

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