Ethical Contours of Discovery Sanctions and the Duty to Cooperate

Craig Brodsky has written Taking discovery obligations seriously – Maryland Daily Record (thedailyrecord.com)(September 6, 2023).  The article explains the application of the Maryland Attorneys Rules of Professional Conduct (“MARPC”) to the discovery rules, cites recent Maryland case law, summarizes the sanctions in Freeman v. Giuliani,[1] and concludes that full and timely discovery disclosures are the foundation of just results.

Mr. Brodsky states that discovery is “supposed to be an equal exchange.”  He writes that “the Maryland Supreme Court has disciplined lawyers for discovery violations and for ethical violations leading to default judgments against clients.” Mr. Brodsky adds that “it seems that the entry of discovery sanctions as a consequence of the attorney’s conduct is a violation of the MARPC.”

Kudos to Mr. Brodsky for a thorough and well-written article.

The Maryland Supreme Court has reiterated the duty to cooperate in a decision suspending an attorney, as well as enunciating that duty in Rodriguez v. Clarke, 400 Md. 39, 60 (2007).

Cooperation is one key to avoiding sanctions, as well as reducing the costs of discovery while increasing its productivity.  It is clear that a failure to cooperate can cost a client money. In fact, the District of Maryland wrote that: “This case is yet another paradigmatic example of how the inability of counsel to work cooperatively creates vexatious litigation for the courts, and wastes a client’s money.” [emphasis added].

In his 2015 Year-End Report (supremecourt.gov), Chief Justice Roberts wrote:

Joseph Conrad’s novella “The Duel” tells the tale, taken from fact, of two gallant French cavalry officers, D’Hubert and Feraud. Estranged by a trifling slight, they repeatedly duel over a 15-year period. According to newspapers of the era, the real-life antagonists, Dupont and Fournier, would cross swords and draw blood whenever their military service brought them near to one another. Conrad’s characters, like the real ones, relentlessly persist in their personal feud through the rise, fall, reemergence, and ultimate exile of Napoleon, as the world transforms around them. In the end, these soldiers, who should have been comrades in a patriotic cause, spent much of their adult lives focused on a petty squabble that left them with nothing but scars. We should not miss the opportunity to help ensure that federal court litigation does not degenerate into wasteful clashes over matters that have little to do with achieving a just result.

“Cooperation” as a requirement was recognized in Maryland in J. Pike and J. Willis, “The New Maryland Deposition and Discovery Procedure,” 6 Md. L. Rev. 4, 32 (1941).  President Abraham Lincoln wrote in his July 1, 1850, , notes for a law lecture:

Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser — in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man [or woman]. There will still be business enough.

Nevertheless, cooperation is sometimes absent.  Maker’s Mark: What Happens When Neither Party Cooperates?

The Sedona Conference’s “Cooperation Proclamation” published in 2008 was an inflection point. See Historical ESI Highlights – Part VIII – Cooperation and The Cooperation Proclamation.  Sedona argues that “[o]ver-contentious discovery has outstripped any advantage in the face of ESI and the data deluge.” See “The Sedona Conference Cooperation Proclamation,” 10 Sedona Conf. J. 331 (2009).

There is substantial support for cooperation.  “[H]undreds of judges have signed onto the Cooperation Proclamation.”  Kelly Twigger, The ROI Of Cooperation – Above the Law (Apr. 3, 2018). Steve Gensler argues for rifle-shot, focused discovery and suggests that cooperation brings an end to the era of the “silent gunslinger.”  S. Gensler, “A Bull’s-Eye View of Cooperation in Discovery,” 10 Sedona Conf. J. 363, 365 (2010).  Ralph Losey argues that cooperation can significantly reduce costs.  R. Losey, “Mancia v. Mayflower Begins a Pilgrimage to the New World of Cooperation,” 10 Sedona Conf. J. 377 (2009).

What is cooperation? “As properly defined, ‘cooperation’ requires focused discovery requests, specific discovery objections, negotiation, discussion, flexibility, transparency, and often an iterative process. It does not require that a litigant forego any meritorious discovery or other position.”  M. Berman and The Hon. Paul W. Grimm, “The Duty to Cooperate in Discovery” in M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020), 338-39.

“Cooperation is not capitulation.” Id. at 340 (citation omitted).  It includes consideration of proportionality. Id. at 342.

The Hon. Steve Leben wrote of a law firm that advertised “that going against it in discovery matters would be like meeting Genghis Khan on the steps of the courthouse.” S. Leben,”We All Have a Role in Protecting Our Justice System: Promoting Procedural Fairness,” 46 ABA Litigation 6, 8 (2019).  The judge noted that the law firm’s advertisement was effectively used in a sanctions motion against the firm.

In his 2015 Year-End Report on the Federal Judiciary, Chief Justice Roberts wrote:

I cannot believe that many members of the bar went to law school because of a burning desire to spend their professional life wearing down opponents with creatively burdensome discovery requests or evading legitimate requests through dilatory tactics. The test for plaintiffs’ and defendants’ counsel alike is whether they will affirmatively search out cooperative solutions, chart a cost-effective course of litigation, and assume shared responsibility with opposing counsel to achieve just results.

Similar to Fed.R.Civ.P. 1, Md. Rule 1-201(a) provides: “These rules shall be construed to secure simplicity in procedure, fairness in administration, and elimination of unjustifiable expense and delay.”

Mr. Brodsky’s article ties the discovery rules and the ethical rules together.  There is a compelling case for cooperation.

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[1] For more on that case, see Sanctions Sought in “Murky Mess.”