Historical ESI Highlights – Part VIII – Cooperation and The Cooperation Proclamation

Like many of its other publications, The Sedona Conference’s “Cooperation Proclamation” was an inflection point. The Cooperation Proclamation was published by The Sedona Conference in 2008.[1]

It was followed by a number of publications, endorsed by Mancia v. Mayflower Textile Services. Co., 253 F.R.D. 354 (D. Md. Oct. 15, 2008), and by more than 100 judges.  The basic thesis of the Proclamation is that “hiding the ball” must be replaced by cooperation and transparency.

Sedona was not the first to suggest cooperation.  President Abraham Lincoln wrote in 1850: “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].” [emphasis added].

A 1941 Maryland law review article stated that the discovery rules must be “applied by lawyers and judges, and a cooperative and liberal attitude on the part of the bar . . . will do much to insure a smooth transition from old ways to the new. . . . The matter of expense, for instance, is one in which a cooperative attitude may mean all the difference between success and failure.” J. Pike and J. Willis, The New Maryland Deposition and Discovery Procedure, 6 Md. L.Rev. 4, 32 (1941) (emphasis added).

The need for cooperation was also discussed in the seminal article, George L. Paul & Jason R. Baron, Information Inflation: Can the Legal System Adapt?, 13 Rich. J.L. & Tech. 10, 16–21 (2007).

However, Sedona’s Cooperation Proclamation, judicial decisions, such as the landmark case of Mancia v. Mayflower Textile Services. Co., 253 F.R.D. 354 (D. Md. 2008), in a time of increasing sanctions,[2] combined with the prestige of The Sedona Conference, catapulted cooperation to the forefront.

“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.

Where parties have failed to cooperate, they have been ordered to do so.  Mancia, 253 F.R.D. 364–65. For additional detail, see P. Grimm, Practical Ways to Achieve Proportionality During Discovery and Reduce Costs in the Pretrial Phase of Federal Civil Cases, 51 Akron L. Rev. 721, 736–37 (2017).

History is important.

_______

[1] See The Sedona Conference Cooperation Proclamation, 10 Sedona Conf. J. 331 (2009).

[2] . Dan H. Willoughby, Jr., et al., “Sanctions for E-Discovery Violations: By the Numbers,” 60 Duke L.J. 789 (2010).