Ediscovery has re-introduced in a powerful way an old and often dismissed concept in litigation: cooperation among adversarial parties. Lawyers, and litigators in particular, are bred to fight, to rebuff and to confront their opponents. To be managed effectively, the ediscovery process requires at least some level of cooperation. Ediscovery sets the stage for a collision of these two forces.
Balancing these two behaviors was the subject of a lively panel discussion at the PREX15 Conference on Preservation Excellence. An impressive panel was assembled for the discussion in which all parties were represented. Panelists included:
- Ariana Tadler, Partner, Milberg LLP, moderator
- Michael Arkfeld, Director of the Arkfeld eDiscovery and Digital Evidence Program, Sandra Day O’Connor College of Law, Arizona University
- Robert Owen, Partner, Sutherland Asbill & Brennan LLP
- Justin Underwood, Global Head of eDiscovery for Teva Pharmaceuticals
- Hon. Dave Waxse, U.S. Magistrate Judge, District of Kansas
All panelists agreed, at least to a degree, that cooperation throughout litigation is healthy and can lead to an expeditious and judicious resolution of a case that can save the client time and money. However, their discussion brought to the fore the many pressures that argue against a cooperative approach to resolution.
Download Balancing Adversarial Strategy and Ediscovery Cooperation or the entire PREX15 Proceedings: 2016 Legal Holds and Data Preservation