Tuesday, July 13, 2010
Time to work together
In the old days of litigation, a lawyer representing a company with lots of information might take a huge collection of documents and produce them knowing that the other side would have a hard time finding the relevant stuff from the crud. In other words, the strategy would be “hide the relevant needle in a big hay stack” . With the change to the Federal Rules of Civil Procedure and the need to “meet and confer”, that has changed. Can’t hide the ball as a plan; need to work together to disclose what you have (we have built RulesMapper to help), need to tell the other side what is “not accessible” and generally work together to focus the discovery process. If there was confusion about working together with your adversary, read Mancia v. Mayflower Textile Services Co. [2008 WL 4595275 (D. Md. Oct. 15, 2008)]. In the case Judge Grimm makes clear that Fed. R. Civ. P. 26 now requires lawyers to cooperate in e-discovery and if they fail it might be considered a violation of the duty of "reasonable inquiry". Money, time, collegiality and law all require working together. What’s stopping you?