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Duty of Cooperation In E-Discovery: What Does It Really Mean


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Presentation on e-discovery, the "duty of cooperation" case law and rules, in federal civil litigation, under United States law.

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Duty of Cooperation In E-Discovery: What Does It Really Mean

  1. 1. The ‘Duty’ ofCooperation inE-DiscoverySeth H. RowParsons Farnell & Grein LLPPortland, Oregon
  2. 2. In this presentation we willcover… Where did this “duty” come from? What ever happened to zealousadvocacy? What should my outside counsel be doingin this situation…
  3. 3. Where did this ‘duty’ comefrom? Genesis: The Sedona ConferenceCooperation Proclamation What judges are saying/being told Waxse, “Cooperation – What Is It and WhyDo It,” XVII Rich. J. L. & Tech. 8 (2012) FJC “Managing Discovery of ElectronicInformation: A Pocket Guide” Standing order/pilot programs Case law about cooperation
  4. 4. What ever happened tozealous advocacy? Ethical rules – what do they actually say? Commentariat: ethics and cooperationcan be reconciled Court view: use of e-discovery games (ordiscovery games at all) as part of“advocacy” is improper becauseadvantage gained is merely time/money,not “on the merits”
  5. 5. What should my outside counsel bedoing? 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. 6. Kleen Products, LLC, et al. v. PackagingCorporation of America, et al. , Case: 1:10-cv-05711, Document #412 (ND, Ill., Sept. 28, 2012). Dispute over use of “TAR” (aka predictivecoding Two day evidentiary hearing – thenconferences Take away: the degree to which a partyneeds to proactively disclose informationdepends on the issue raised. In some cases, aparty will need to disclose facts not known tothe opponent in order to fulfill the duty tocooperate
  7. 7. Other cases discussed… In Re: National Association of MusicMerchants, Musical Instruments andEquipment 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. MicrostrategyInc., No. 11-cv-06637-RS-PSG, 2012 WL5637611 (N.D. Cal. Nov. 15, 2012) (search)
  8. 8. For more information, please contact:Seth Row,