Yesterday the Sedona Conference (a nonprofit research and educational institute dedicated to the advanced study of law and policy in the areas of antitrust law, complex litigation, and intellectual property rights) issued its Cooperation Proclamation — click here to read the Proclamation and click here for the slides from the related press conference.* Every litigator knows that she has a duty to be a zealous advocate for her client. The Cooperation Proclamation focuses on the litigator’s other main duty, the one that is sometimes forgotten in the quest for zealous advocacy — the attorney as an officer of the court. As an officer of the court the Federal Rules of Civil Procedure require that we cooperate to fully and properly complete the discovery process. Unfortunately, the discovery process (just like code pleading that open discovery was created to fix) can become a ritualized fight focused on procedural rules and technicalities, instead of exchanging the necessary facts so that the case can be pared down and prepared for trial, mediation or settlement.
The Sedona Conference suggests that litigators first focus on their roles as officers of the court to cooperatively define the scope of and complete discovery in a case. Then, once all of the facts have been made available to the extent possible, the attorney focuses on the role of zealous advocate, working the produced evidence to make the client’s case. The Sedona Conference bills this as a somewhat radical proposal that will require fairly extensive awareness campaigns and retraining. But my experience suggests that the change may not be as radical as the Sedona Conference thinks. In many cases (although not all) the parties do try to produce the relevant documents and witnesses, and to resolve discovery disputes reasonably. I think what needs radical change is a pervasive lack of trust between litigators. Everyone is afraid their opponent is gaming the system and hiding the smoking guns. What most needs change is trust among the officers of the court. Perhaps the Sedona Conference’s plan of educating attorneys to perform cooperative discovery will begin to generate that trust.
And if you are disregarding the Cooperation Proclamation as you read this, click here to see if any of the judges you are currently appearing before have endorsed the Proclamation. I bet a few have; it is a long list.
Finally, I have to pay tribute to my former colleague, Gary Hood (now at McDonnell Boehnen Hulbert & Berghoff) who arguably called for the Cooperation Proclamation several years before the Sedona Conference. In 2004, Hood wrote an excellent article arguing for a reasonable discovery plan in patent cases: Refuse to Play the Game: An Alternative Document Production Strategy in Intellectual Property Litigation, Intellectual Property & Technology Law Journal, Volume 16, Number 5, May, 2004. Unfortunately, the article is not currently available in electronic form and I do not have rights from the publisher to make my own electronic copy. So, for now, if you would like to read it, you can go here to buy a reprint from the publisher.
* Hat tip to ediscovery info for directing me to the Proclamation. And thanks to Victoria Pynchon at the IP ADR Blog (and on Twitter @vpynchon) for anticipating this post while traveling through France.