W hile they may have expressed it a little differently, Albert and - PDF document

SPECIAL ADVERTISING SECTION How Important Is It To Cooperate With Opposing Counsel After In Re Seroquel ? Mark S. Sidoti and Phillip J. Duffy* Gibbons P .C. “Every kind of peaceful cooperation among men is primarily based on mutual trust and only secondarily on institutions such as courts of justice and police.” ~ Albert Einstein (1879 - 1955) “Can’t we all just get along?” ~ Rodney King, (1965 - ____) W hile they may have expressed it a little differently, Albert and Rodney both had the concept down. Unfortunately “getting along,” while among our most noble ideals, is the epitome of something far easier said than done. This is especially true for litigants. The problem with this — now well into the era of electronic discovery, new rules and new judicial expectations — is that litigants and their counsel now face increasingly more painful consequences for failing to sit down with their adversaries, exchange information, and carefully plan for the stark realities of conducting complex discovery. If the published decisions over the past two years are any indication, the amendments to the federal rules that address e-discovery obligations, and their state counterparts have clearly provided courts with newly sharpened teeth that Judges have not been reluctant to sink into those who remain set in the old way of doing things. The saga of e-discovery non-cooperation that occurred in the acceptable plan for preservation and production of electroni- Seroquel multidistrict litigation is instructive. In re Seroquel cally stored information (“ESI”). However, as deadlines and Prods. Liab. Litig. , 244 F.R.D. 650 (M.D. Fla. 2007). In court dates quickly approached, the parties failed to even dis- Seroquel , plaintiffs successfully moved for sanctions based on cuss some of the key elements of the discovery plan, including defendant AstraZeneca’s (“AZ”) failure to comply with certain ESI format and metadata production. The parties eventually discovery obligations set forth in a Case Management Order prevailed on the Court to enter a CMO detailing the parties’ e- (“CMO”). Magistrate Judge David A. Baker’s decision to discovery obligations which the Court regarded as “unduly grant the motion was influenced by the protracted failure of the cumbersome.” The Court’s concerns proved prophetic; scarce- parties to cooperate from the earliest stages of the case. ly three months later, plaintiffs moved to compel compliance After an initial discovery conference, which included “sub- with the order. The Court denied the motion, ordered the par- stantial discussion” of the Court’s expectations for the progress ties to again confer extensively, and set a date for an eviden- of discovery, the parties were directed to arrive at a mutually tiary hearing and issued this ominous warning: Article Continued on Page 6 e - discovery T3 4

SPECIAL ADVERTISING SECTION ANY PARTY WHOSE CONDUCT NECESSITATES tation of plaintiffs’ opportunity to examine the information THE EVIDENTIARY HEARING SHOULD EXPECT and follow-up as necessary. The Court emphasized AZ’s THE IMPOSITION OF SANCTIONS FOR ANY “tardy” and other inappropriate conduct, including its failure UNREASONABLE OR INAPPROPRIATE CON- to use proper key word searches or confer with plaintiffs on DUCT OR POSITION TAKEN WITH RESPECT TO search terms, “mysterious” de-duplication efforts, non-pro- THESE MATTERS. duction of attachments, omission of relevant emails and pro- This dire warning prompted AZ to make further promises to duction of 10 million pages of “unaccessible, unsearchable comply with the CMO, but these went unfulfilled and plaintiffs and unusable” electronic documents. Moreover, it found eventually successfully moved for sanctions. In his decision, AZ’s efforts to prevent and solve technical problems were Judge Baker indicated his prior warning provided AZ with “woefully deficient” and rejected AZ’s efforts to blame its e- more than sufficient notice that failure discovery vendor based on the T he problem to resolve its non-compliance with the Sedona Principle providing that par- CMO could result in sanctions. ties are responsible for the errors of Accordingly, he refused to allow AZ to with this . . . their vendors. “gain an advantage by agreeing to cure Seroquel and other decisions like it is that litigants and the discovery violation, then fail to have ushered in a brave new world of their counsel now face implement the cure, and hope to avoid discovery ground rules in litigation. increasingly more a sanction by forestalling the sanctions While litigants and their counsel con- painful consequences ruling.” Chastising both parties for tinue to find their way through the for failing to sit down “posturing and petulance,” the Court minefield, some valuable lessons affirmed the need for cooperation in with their adversaries, regarding the need to cooperate, and unequivocal terms: how to deal with adversaries who do exchange information, Identifying relevant records and not, are beginning to emerge from and carefully plan working out technical methods these decisions. for the stark realities Do your homework. for their production is a coopera- It is no of conducting tive undertaking, not part of the longer an option to go into a Rule complex discovery. adversarial give and take. … It is 26(f) meet and confer without first not appropriate to see an advan- fully understanding your client’s IT tage in the litigation by failing to cooperate in the infrastructure and ESI practices. The rules and the courts identification of basic evidence. demand that you have a working understanding of these mat- Grounding its decision upon authorities that have guided ters. Without it you cannot begin to effectively advocate for courts on e-discovery issues for the past several years, includ- ESI preservation and production protocols (in either direc- ing the Manual for Complex Litigation and The Sedona tion) that serve your clients interests. Be prepared to meet your obligations, even if your Principles , the Court held that AZ was “purposely sluggish” adversary is not. In many situations, your adversary will in its production to plaintiffs. It further found that prejudice was to be presumed based upon the delay and resulting limi- not be as well prepared as you to deal with ESI issues. Make T3 6 e - discovery