Lawyers and Cooperation: The Ongoing Hurdle
How can two adversaries learn to cooperate? That has been the burning question amongst litigators over the past seven years. On Dec. 1, 2015, significant amendments to the Federal Rules of Civil Procedure (FRCP) became effective. While the word “cooperation” was not expressly included in the amended rules, it was understood through the notes and drafting discussions that the changes encourage parties to work together earlier and more often to reach a resolution. This seemed like an impossible feat. The thought of cooperative adversaries is quite the oxymoron. Surprisingly, some strides have been made – but there is still a long road ahead.
Now that seven years have passed, it is an opportune time to analyze where litigators stand today with cooperation. Has anything changed? Will the rules need further clarification to truly push cooperative strategies? How have the courts weighed in on this topic? How is technology playing a role in cooperation? Read on to delve deeper into these questions and for predictions on what is to unfold by the ten-year anniversary of these amendments.
Looking Back: A Recap of the Rule Changes
The 2015 amendments encourage discovery proportionality, party cooperation, and earlier court engagement. Some key changes included parties sharing responsibility with the court to reach just resolutions quickly and inexpensively, emphasizing proportionality at every step of the discovery process, stipulation on discovery sequencing, and the ability to send production requests before a Rule 26(f) conference. The goal was to better control costs and reach outcomes more efficiently. With litigation being adversarial in nature, there was immediate confusion on how two adversaries can cooperate. Putting these terms together does not seem to mesh, but adversarial cooperation has been the standard that the judicial system is striving to reach.
Although the amendments were meant to foster party cooperation, this was not expressly included in the rules, making it unclear how far a party needs to go to be deemed cooperative. Some guidance came in the form of a note to FRCP 1, which required the just, speedy, and inexpensive determination of every action. The note stated that parties share responsibility to employ the rules and most cooperate to achieve those ends. Additionally, it is key to stray away from over-use, misuse, and abuse of procedural tools that can be costly and delay the case.
The Current State of Cooperation
With little guidance on where strategy and cooperation merge, many in the legal community predicted that ambiguity would remain as to how much cooperation is required. Initial questions surfaced around when parties need to cooperate, necessary technology disclosures, availability of sanctions, and more. Almost a decade later, where do things stand? As with most legal issues, the answer is unclear. After so many years, the legal community as a whole appears to be working towards more cooperative practices but is still plagued with defining a standard to drive such cooperation. Here are three key observations to note:
Recurring case law themes each year have centered around defining proportionality, aligning sanctions with the realities of emerging technology, and leaving eDiscovery protocols and technology usage up to the parties. Since the pandemic, more courts have also ordered parties to work together to solve discovery issues and avoid motions wherever possible. A surfacing trend appears to be judges issuing sanctions for delaying matters by failing to solve discovery issues efficiently without court intervention. This comes as no surprise as many judges are trying to tackle heavy backlogs. Cooperation definitely plays a role in all of these scenarios.
The pandemic forced party cooperation which could help pave the way for future clarity and best practices. Lawyers essentially had no choice but to embrace collaborative tools and work together to make remote proceedings successful. The 2022 supplement to the Sedona Conference Cooperation Proclamation noted: “Successful remote and hybrid proceedings require an even greater degree of cooperation between the parties than is strictly required by the rules. No longer can opposing counsel appear at a deposition and blithely agree to the ‘usual stipulations,’ whatever those might be. In the remote or hybrid environment, all pretrial proceedings require advance planning and agreement on the platform to be used, the persons to be involved, the handling of evidence, etc.”
The rules will need to undergo further amendments to create an actual duty to cooperate. It is true that the needle has moved and more lawyers seem at least willing to collaborate and continue to find value in working together. More courts are endorsing the Sedona Conference Cooperation Proclamation and are encouraging parties to handle discovery conflicts out of court. However, without an affirmative duty to cooperate the issue will continue to remain ambiguous and merely be weaved into court decisions without clear definition of what cooperation entails under the rules.
So, what does this all mean? From a case law perspective, cooperation is an element of recurring themes even if not specifically stated. The courts will likely continue to order parties to resolve issues amongst one another and agree to technology protocols. It will be interesting to see how sanctions continue to unfold in this regard. However, it is unlikely that a court will affirmatively create a “cooperation standard” until it is expressly embedded in the rules. Will this happen before the ten-year anniversary of the 2015 amendments? Or will it ever happen? This remains uncertain. On the one hand, lawmakers had major reservations about the backlash that could result which is definitely still a concern. On the other hand, more parties are willing to cooperate, technology is fostering better collaboration, and courts are getting increasingly fed up with counsel advancing discovery tactics that cause unnecessary delays. One thing that is for certain is that if further amendments occur, the courts will play a major role in defining the cooperation standard – so stay tuned.