Skip to main content

Haggle in Discovery at Your Own Risk

Attention has recently been paid to the duty of competence outlined in comment 8 to ABA Model Rule of Professional Conduct 1.1, which requires lawyers to understand the “benefits and risks associated with relevant technology.” Although this rule clearly implicates e-discovery, lawyers may arguably (though inadvertently) operate around the edges of other ethical rules, such as Rule 3.2, which obligates lawyers to “make reasonable efforts to expedite litigation consistent with the interests of the client,” and Rule 3.4, which prohibits lawyers from “unlawfully obstruct[ing] another party’s access to evidence” and from “fail[ing] to make reasonable diligent effort to comply with a legally proper discovery request by an opposing party.”

According to many judges, parties would be well advised to heed these rules. Indeed, judges are seemingly losing patience with parties that take an adversarial rather than collaborative stance in discovery, and two recent decisions illustrate that the risks of a refusal to cooperate are rising. In both cases, the judges ordered the parties to use technology-assisted review (TAR), although none of the parties had suggested it.

First, in Aurora Cooperative Elevator Co. v. Aventine Renewable Energy, the magistrate judge issued a detailed discovery protocol for two parties that could not agree on search terms. The order included a mandate to agree upon and “consult with a computer forensic expert to create search protocols, including predictive coding as needed, for a computerized review of the parties’ electronic records.”

Likewise, in Independent Living Center of Southern California v. City of Los Angeles, the magistrate judge issued an order requiring the defendant to use TAR to identify and prioritize the 10,000 most relevant documents in its databases, as it was not feasible to conduct manual review or keyword searches on its collection of 2 million documents. The judge also ordered the parties to meet and confer to agree on the protocol to implement TAR and directed that the defendants include the plaintiffs and their experts “in the relevance screening process and the training process” for the TAR system. Two weeks later, recognizing that the parties could not agree on a protocol, the court issued a follow-up order, demanding that the parties:

  • Reach an agreement within twenty-four hours;
  • Set a recall threshold of 75 percent to resolve a dispute over quality assurance; and,
  • Provide for cost-shifting.

These opinions harken back to Judge Paul Grimm’s groundbreaking opinion from 2008 in Mayflower v. Mancia, which explained that “[c]ounsel cannot ‘behave responsively’ during discovery” unless they cooperate and communicate rather than confront. Good faith collaboration throughout the discovery process would obviate the need for many disputes, and it certainly would conserve time, resources, and money. Moreover, it should allow for parties to litigate cases on their own terms.

Sheila Mackay is vice president at Conduent. She can be reached at