Proficient representation of a client in federal court requires cooperation with opposing counsel in the discovery of electronically stored information (ESI). Cooperation may seem contrary to the zealous advocacy practiced (but no longer ethically required) by attorneys, but it is not. Zeal in advocacy does not mean that the lawyer must press for every tactical advantage for her client in a case. Rather, lawyers must protect the client by preserving its position in the case in the most efficient and effective way possible. With the high cost of electronic discovery, practitioners are obliged to cooperate with their adversaries in the interest of saving their clients' resources, money and time.

In August 2013, the United States District Court for the District of Kansas issued guidelines for cases involving ESI. The purpose of these guidelines is to facilitate the just, speedy and inexpensive resolution of disputes involving ESI. The principle underlying these guidelines is cooperation. The District of Kansas is not alone in encouraging cooperation between litigants. In fact, proposed revisions to the Federal Rules of Civil Procedure on discovery and case management were developed in response to the need for increased cooperation in discovery.

Other courts have initiated pilot programs or have issued standing orders that are designed to foster cooperation between parties in an effort to reduce e-discovery costs and inefficiencies. These courts include the:

Counsel should check whether their local district court has implemented any rules or pilot programs requiring cooperation. However, parties should be prepared to cooperate even if the court's rules do not mandate cooperation. Courts favor early and meaningful cooperation between parties, particularly when addressing e-discovery issues. The failure to cooperate may be costly and lead to sanctions (see, for example, E.I. DuPont de Nemours & Co. v. Kolon Indus., Inc., 911 F. Supp. 2d 340, 348 (E.D. Va. 2012) (awarding attorneys' fees to the plaintiff for the defendant's failure to cooperate throughout the litigation, including its dilatory approach to discovery)).

For information about e-discovery, see the E-Discovery Toolkit. For information on drafting a request for the production of documents, see Practice Note, Requesting Parties: Drafting and Serving the Request and Standard Document, Requesting Parties: Request for the Production of Documents (RFP) (Federal).