The first rule of successful lawyering is that one must be a zealous advocate for his or her client. While this mantra is essential to best practice, it should not be followed to the exclusion of traditional trial etiquette. This was the message propounded by the Honorable Nan R. Nolan of the United States District Court for the Northern District of Illinois in her recent order calling for collaboration and cooperation during eDiscovery.
In Kleen Products, LLC v. Packaging Corp. of America, Plaintiffs brought a class action suit against manufacturers of containerboard charging antitrust violations under Section 1 of the Sherman Act. The first of many disputes in the litigation concerned the use of predictive coding technology, a form of computer-assisted review used to aid document search and production. Plaintiffs sparked this debate when they asked Judge Nolan to order Defendants to revamp their system of production to employ a specific kind of content-based analytics. Judge Nolan signed a joint Stipulation and Order in August, in which Plaintiffs agreed to withdraw their demand that Defendants apply this particular methodology with respect to any requests for production served prior to October 1, 2013.
In response to the current flood of motions pertaining to interrogatories and document requests, Judge Nolan's order emphasizes cooperation and proportionality, quoting the Sedona Conference's Cooperation Proclamation at the outset: "Lawyers have twin duties of loyalty: While they are retained to be zealous advocates for their clients, they bear a professional obligation to conduct discovery in a diligent and candid manner. . . . Cooperation does not conflict with the advancement of their clients' interests—it enhances it." These words of wisdom were directed predominantly at Plaintiffs' most recent set of interrogatories, which, according to Judge Nolan, "violated the spirit of cooperation that this Court has encouraged." Only three days after one of the defendants, Georgia Pacific, went above and beyond to produce certain requested information pertaining to individuals within its corporate structure who had received the litigation hold notice, Plaintiffs issued a Sixth Set of Interrogatories demanding extensive background information on each person identified. Judge Nolan referred to the proportionality standards of FRCP 26(b)(2)(C)(iii) in granting Georgia Pacific's motion for a protective order.
Judge Nolan did, however, grant Plaintiffs' motion to compel the production of additional document custodians directed at two particular defendants, concluding that "in an antitrust case such as this, Plaintiffs are at least entitled to a sample of lower-level and plant-level employees to determine if they possess significant and non-duplicative information." Judge Nolan stated that while certain production requests can be found to violate the proportionality standards of FRCP 26(b)(2)(C), the party objecting to discovery must provide specific evidence to demonstrate the burden, which the defendants here failed to do.
Judge Nolan capped off the final order of her judicial career with some parting guidance to the parties, as well as the legal community at large, regarding eDiscovery propriety and protocol:
First, the approach should be started early in the case. It is difficult or impossible to unwind procedures that have already been implemented. Second, in multiple party cases represented by separate counsel, it may be beneficial for liaisons to be assigned to each party. Finally, to the extent possible, discovery phases should be discussed and agreed to at the onset of discovery.
Kleen Products instructs that practitioners should take heed of Judge Nolan's suggestions and attempt to comply with the spirit of collaborative and proportional eDiscovery. While zealous advocacy remains a hallmark of legal representation, vigorous client activism and cooperative litigation are certainly not mutually exclusive.
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