The Cooperation Proclamation: Way of the Future or Ideal Never to Pass?

When the Sedona Conference issued its Cooperation Proclamation in 2008, the concept was simple: collaborate with the adverse party to make the electronic discovery process transparent, effective, and efficient.  Work together to reduce costs.  Cooperate to fulfill the true spirit and intent of the rules.  But is this possible?  Is this an ideal world that will never be, in an age when individualism and “advocacy” is perhaps at its peak?

The rules require parties to meet and confer about discovery issues, including production format and ESI issues.  The rules promote the “just, speedy, and inexpensive determination of every action and proceeding.”  But are practitioners doing this?  The devil is in the details, but does someone really need 5 years' worth of backup tapes to prosecute a small case?  Or is the request to force the other side to settle on costs and not on the merits?

This practitioner submits that cooperation is not just the right way, but the only way.  In business, it is natural (if not required) to collaborate and find the most effective and efficient solution with the least amount of pain.  Is electronic discovery so different?  Nay, is the legal profession so different?  I say no.  Cooperation shows strength, not weakness.  It demonstrates loyalty to the client, not disregard to the system we intend to serve.

Will the cooperation proclamation succeed?  The Sedona Conference thinks so.  And so do numerous courts across the county.  Will practitioners agree?  Too soon to tell.  But to truly move into the technology phenomenal we’re all experiencing today, something has to change.  Proportionality, budgets, and clients demand it.  Change, or fall behind.  The choice is yours.