2. In this presentation we will
cover…
Where did this “duty” come from?
What ever happened to zealous
advocacy?
What should my outside counsel be doing
in this situation…
3. Where did this ‘duty’ come
from?
Genesis: The Sedona Conference
Cooperation Proclamation
What judges are saying/being told
Waxse, “Cooperation – What Is It and Why
Do It,” XVII Rich. J. L. & Tech. 8 (2012)
FJC “Managing Discovery of Electronic
Information: A Pocket Guide”
Standing order/pilot programs
Case law about cooperation
4. What ever happened to
zealous advocacy?
Ethical rules – what do they actually say?
Commentariat: ethics and cooperation
can be reconciled
Court view: use of e-discovery games (or
discovery games at all) as part of
“advocacy” is improper because
advantage gained is merely time/money,
not “on the merits”
5. What should my outside counsel be
doing?
The Rule 26(f) conference – do I have to disclose…
…preservation steps?
…custodians?
…legacy systems?
…search terms?
What if the opposing party misspells a search term?
What if they don’t ask for the right custodian?
I have a lot of data, the plaintiff has almost zero…
6. Kleen Products, LLC, et al. v. Packaging
Corporation of America, et al. , Case: 1:10-cv-
05711, Document #412 (ND, Ill., Sept. 28, 2012).
Dispute over use of “TAR” (aka predictive
coding
Two day evidentiary hearing – then
conferences
Take away: the degree to which a party
needs to proactively disclose information
depends on the issue raised. In some cases, a
party will need to disclose facts not known to
the opponent in order to fulfill the duty to
cooperate
7. Other cases discussed…
In Re: National Association of Music
Merchants, Musical Instruments and
Equipment Antitrust Litigation, MDL No.
2121 (S.D. California, December 19, 2011)
(search terms)
Chura v. Delmar Gardens of Lenexa, Inc.,
No. 11-2090-CM-DJW, 2012 WL 940270 (D.
Kan. Mar. 20, 2012) (preservation)
Vasudevan Software, Inc. v. Microstrategy
Inc., No. 11-cv-06637-RS-PSG, 2012 WL
5637611 (N.D. Cal. Nov. 15, 2012) (search)