Mention “cooperation between parties” to a group of litigators and you usually get facetious exhortations to hold hands and sing “Kumbaya” or “We Are the World.” Respond that you are not talking about utopian fantasies, but ways for both sides to get what they want (or, at least, paying props to Mssrs. Jagger and Richards, what they need), the group will usually respond that cooperation in litigation, like communism, always looks great in theory but never works in practice.
When dealing with e-discovery, however, cooperation can and does work. Once the parties understand what is at stake, skeptical posturing can give way to steps that actually benefit both sides.
WHAT’S AT STAKE
Interestingly, the economic philosopher who best understood the benefits of cooperation was not Karl Marx but Adam Smith, who explored in “The Wealth of Nations” his postulate that economic actors act in their enlightened self-interest and so the free marketplace was the best setting for them. The same holds true here; so what is key is that the parties understand what their enlightened self-interest is.
Absent exceptions, producing parties bear the costs of preservation, collection, processing, searching, reviewing, and producing e-discovery. As has caught the attention of one, two, or several million people over the last number of years, those costs can be considerable. Thus, it is in the enlightened self-interest of the producing party to minimize e-discovery costs. Minimizing such costs in improper ways, however, can lead to dire consequences. In the “poster child” spoliation case of Zubulake v. UBS Warburg, the failure to preserve, collect, and produce e-discovery properly led first to increased e-discovery costs as the producing party had to try to find later, at a much higher cost, what it did not preserve earlier at a lower cost, and then to dire sanctions for spoliation.
