In part 2 of this series, we described the proposed amendments to the Federal Rules of Civil Procedure that are intended to promote active and early judicial case management. In part 3, we described the proposed amendments that are intended to promote increased proportionality in discovery. In this part, we will describe the proposed amendment that is aimed at increased cooperation among litigants and their counsel.
In the previous article regarding proposed Rule amendments that would foster proportionality, we noted that the word “proportionality” is a word of great substance, not to most or even many litigators, but in the more rarefied atmosphere of e-discovery blogs and the occasional discovery ruling. The same can be said of the word “cooperation.” If you aren’t a lawyer who follows the Sedona Conference®, and who therefore knows about the Conference’s Cooperation Proclamation, you may not be fully engaged with the weight of the word “cooperation” as some judges and parties use it today.
At the Duke Conference, “cooperation” had center stage. The Duke Conference attendees lamented that excessively adversarial behavior drives up the costs of litigation. Although cooperation is a concern in all aspects of litigation, it is the failure of cooperation in discovery that appears most lamentable. Not surprisingly, therefore, it is the failure of cooperation in discovery that has, arguably, caused some judges (and particularly, in the case of discovery, magistrate judges) to take forceful action to influence and require that lawyers cooperate. Some United States magistrates have included requirements in discovery rulings that the lawyers read the Sedona Conference® Cooperation Proclamation and report back on their efforts to cooperate. This might actually do some good. Lawyers might be embarrassed to explain to their clients why they have billed additional fees for court-ordered efforts at cooperation, or why a published judicial opinion contains a requirement that lawyers read something that sounds more like All I Really Need to Know I Learned in Kindergarten than a professional exhortation. Why not simply incorporate that behavior into one’s standard operating procedure in all cases?
That increased cooperation sounds obvious, or even simplistic, many lawyers state a concern that some behavior that might be judged by one person as strong advocacy might be viewed by another as uncooperative. Stated another way, is a more cooperative lawyer somehow a lesser advocate who is not discharging his or her duties of professional responsibility? There are some who think so, or fear disciplinary consequences for failure to advocate as rigorously as possible.
As the Committee states, a “modest addition” is proposed to Rule 1. Now, the parties are explicitly called upon to share in the responsibilities imposed by that Rule with the following additional language: “[T]hese rules should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” “Modest” is an appropriate word to describe this change, as it is to describe the Committee’s aspirations for the proposed amendment: “It cannot be expected to cure all adversary excesses, but it will do some good.” Not exactly a ringing endorsement.
Perhaps most tellingly, there is almost no mention of the amendment to Rule 1 in the comments we have reviewed. Although one may draw the conclusion that this proposed change is not controversial and will therefore be approved, one may also question whether it will succeed in causing lawyers to become more cooperative. This may be a change that must be, and can only be, judge-driven.
Although the Committee included changes proposed for Rule 34 in the section on cooperation, those changes seem more appropriate for inclusion in a discussion on proportionality. Two changes are proposed for Rule 34. First, Rule 34(b)(2)(B) would require that the grounds for objection to a request for production be stated with specificity. This language is already found in Rule 33, and for that reason, should not be provocative. Rule 34(b)(2)(C) would require that an objection “state whether any responsive materials are being withheld on the basis of that objection.” These changes address a concern that parties responding to document requests set forth a laundry list of boilerplate objections, produce a large volume of documents, but then state that the production is “subject to the objections,” leaving the receiving party with no sense of whether anything was actually withheld on the grounds of any of the objections.
Second, Rule 34(b)(2)(B) will require that a party electing to produce documents rather than making them available for inspection must state that documents will be produced, and will also require that production must be completed no later than the time for inspection state in the request or a later reasonably time stated in the response.
In the next article in this series, we will discuss proposed Rule 37(e).