Lawyers are a pugnacious breed. Cooperation is contrary to the nature of most lawyers. They prefer to be engaged in fisticuffs. They sling a lot of mud and curse like Marines. As an expert, I've sat in on phone conferences where the language was loud, obscene and defamatory - and I was profoundly glad that the parties were not in the same room because I feared that someone's blood would end up on the floor.
How many times have I witnessed professional, courteous cooperation in e-discovery? A handful of times, not more. It's only the degree of combativeness that has varied.
Many lawyers think that civility has deteriorated faster recently, but let's face it, civility in the legal profession has been on the decline for a long time, even in the paper world.
I recently enjoyed reading an article in the ABA Section of Litigation's Newsletter by Michael Berman. He cited a 1994 case where a lawyer remarked that opposing counsel "could gag a maggot off a meat wagon." Nice. He cites a number of other examples of unprofessional remarks which made me shake my head, though the maggot line was really a corker.
He goes on to discuss The Sedona Conference's Cooperation Proclamation, a document which most of us in the e-discovery world cherish for its common sense approach to EDD. As Michael says, we'll have to see how much of a difference this publication will make in the real world.
My own take is that the courts have embraced the Proclamation, many of them explicity endorsing the Proclamation and taking attorneys to the woodshed when they fail to cooperate. They need, of course, to build a much bigger woodshed.
Over time, I suspect that the draconian sanctions that courts are beginning to issue will have some impact, but I have to say that I haven't seen it yet. In a single case where the judge gets angry with the parties for the failure to cooperate, that anger may find its mark and result in more cooperation. But until the sanctions reach some kind of critical mass and attorneys as a whole are educated about the consequences of failing to cooperate and the benefits of true cooperation, I suspect (sadly) that it will business - and pugilism - as usual.
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