In 2008, the Sedona Conference Cooperation Proclamation called for “cooperative, collaborative, [and] transparent discovery” in response to opposing responses to eDiscovery that had needed to be addressed for some time. The proclamation makes good sense. Despite much opposition claiming cooperative advocacy is unreasonable or impossible, there was a remedy served: presumptive limits to be negotiated at the beginning of the discovery process.
However, ardent cooperation is key in a successful discovery process for both sides. Not only will there be consequences legally for those who are not cooperative, trying to game the system can leave one side surprised by presented evidence in trial. While it is a frequently used trope in movies to have surprise evidence, such evidence can derail a court case and cause a lot of frustration.
Obstructionism is a common issue during the discovery process and is often an attempt at a countermove against an opponent that refuses to cooperate or acts in bad faith. While it can be a good move against an unmotivated or inexperienced opponent, it can also backfire and undermines the litigation process. In most cases, the part attempting an obstructionist tactic loses more than they gain.
By being cooperative, you are more likely to win over a judge, especially when your opponent is taking the obstructionism approach. It will not bode well for them with a judge. Further, there are three tips to get more out of discovery.
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