Surviving the Discovery Process of Litigation with Cooperation

discovery processIn 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.

Getting What You Need in Discovery

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.

  • Ask only for what you need. When you ask for too much, you will get pushback regardless of the context. The more reasonable a request, the more unreasonable it will appear if they refuse t be cooperative. However, an unreasonable request will make other reasonable requests easier to overlook by a judge since there will appear to be a bigger picture issue.
  • Understand the importance of eDiscovery. Through modern technology comes new obstacles and new tools for the discovery process. By embracing the technology, you can have an easier and more successful discovery. Ignoring technology will have you lagging behind the competition.
  • Keep as much out of court as possible. It’s not always possible to settle issues out of court but when you can, it makes the process easier on both sides. Further, the judge will be happier to work with you since you have been prudent in your discovery process.

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