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Court Finds Cooperation in Discovery to Be an Ethical Obligation

By Michael D. Berman, Litigation News Associate Editor – February 3, 2009

In Mancia v. Mayflower Textile Services Co., ethical principles and discovery rules, combined with the Sedona Conference’s “Cooperation Proclamation,” [PDF] led the court to resolve difficult discovery issues using a common sense, real-world approach.

Faced with excessive discovery requests and inadequate responses, the U.S. District Court for the District of Maryland directed the parties to develop a solution in light of the economic value of the lawsuit. In short, the decision demonstrates that following ethical principles can also be economically advantageous.

Background of the Case
Mancia presented a Fair Labor Standards Act claim by six collective action plaintiffs against seven defendants. The plaintiffs asserted irregularities in their pay, and propounded wide-ranging interrogatories and document requests. The defendants responded with boilerplate objections of overbreadth, undue burden, and relevance. Faced with motions to compel, the court applied ethical and procedural principles to resolve the issues in a novel way.

Application of Rule 26
The court raised Federal Rule of Civil Procedure 26(g) on its own, describing the rule as “[o]ne of the most important, but apparently least understood or followed, of the discovery rules.” Known as the “stop and think” rule, it is the discovery analog to Rule 11, mandating a reasonable inquiry before signing a disclosure, discovery request, or response.

Among other things, the rule states that a signature on a discovery request or response certifies that it is neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery, the amount in controversy, and the importance of the issues. Promulgated in 1983, Rule 26 also figured prominently in the $8.5 million sanction in Qualcomm Inc. v. Broadcom Corp.

Ethics and Discovery
The ethical implications of the rule are clear. By signing a discovery request, a lawyer certifies that it is warranted by the rules and existing law. The Mancia court noted that Model Rule of Professional Conduct 3.4(d) parallels Rule 26(g) and provides that a lawyer cannot make a frivolous discovery request. Similarly, under Rule 26(g), a responding party cannot obstruct a proper request, and Model Rule 4.4 provides an analog, requiring reasonable diligence in responding to discovery.

“Cooperation Proclamation”
The court also cited to the Sedona “Cooperation Proclamation.” The Sedona Conference is a charitable research and educational institute that sponsors mini-think tanks for the advancement of law and policy. Its “Cooperation Proclamation” states that discovery cooperation and the “just, speedy, and inexpensive determination of every action” is one of the “the fundamental ethical principles governing our profession.” In short, compliance with Rule 26(g) is both a procedural and an ethical obligation.

Court Directive
Under Mancia, counsel cannot meet the obligations unless they act with “cooperation rather than contrariety” and “communication rather than confrontation.” “[K]neejerk discovery requests,” as well as objecting “reflexively—but not reflectively” with boilerplate objections, present ethical problems.

Quoting Professor Lon Fuller, the court wrote that a lawyer’s “highest loyalty” is to democratic institutions and procedures; the attorney is a trustee for the fundamental processes of government; and hindering those processes violates the duties that the adversary system was designed to serve. Similarly, the Sedona Conference has concluded that attorneys “bear a professional obligation to conduct discovery in a diligent and candid manner.”

The court directed counsel to evaluate the range of possible outcomes and develop a “discovery budget.” Counsel were directed to confer, discuss what discovery was needed in light of the budget, attempt to reach agreement, consider “phased discovery,” and report back to the court. The court noted that cooperation in discovery avoids wasteful disputes and is both ethically mandated and good business.

Analysis of the Decision
Michele D. Hangley, cochair of the Section of Litigation Ethics and Professionalism Committee feels that the court did an “admirable job of managing the litigation” and should be “applauded” for its “very sensible” directions. While all discovery requests should be narrowly tailored, she also noted the duty to one’s client and pointed out that attorneys should not be sanctioned based simply on a disagreement over the value of a case.

The decision “is a wakeup call for all of us that ethics permeates discovery in all of its phases,” according to Paul Mark Sandler, cochair of the Section’s Litigation Institute for Trial Training. “If we fail to progress in diminishing costs and time of discovery, the invisible hand over time will eviscerate the civil justice system. Trial lawyers will be relics of the past,” he says.

“Who then will be available and trained to fight for justice in the civil courts?” Sandler asks. “Following ethical precepts in discovery, the most costly part of most cases, will help save the system by helping to reduce costs and expedite the process of reaching trial,” he says.

Keywords: Discovery, ethics, Mancia v. Mayflower Textile Services Co., Sedona Conference, “Cooperation Proclamation,” FLSA, Federal Rules of Civil Procedure, Model Rules of Professional Conduct


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