While the truce in Kleen Products v Packaging Corporation of America has cooled off the parties’ predictive coding dispute until next year, eDiscovery motion practice in this case is just now intensifying. In response to the current round of motions surrounding plaintiffs’ interrogatories and document requests, US Magistrate Judge Nan Nolan has issued 9-28-12 Discovery Order emphasising that the parties’ discovery efforts should be collaborative and not combative. In particular, Judge Nolan has highlighted the significance of both cooperation and proportionality in conducting discovery.
Just as she did to resolve the parties’ disagreement over the use of predictive coding, Judge Nolan relied on a Sedona Conference publication to decide the instant dispute. Citing The Sedona Conference Cooperation Proclamation, Judge Nolan urged counsel to not “confuse advocacy with adversarial conduct” in addressing discovery obligations. In that regard, the plaintiffs were singled out for propounding an interrogatory that “violated the spirit of cooperation that this Court has encouraged.” The interrogatory was particularly troublesome because it requested information about defendant Georgia-Pacific’s organisational structure that plaintiffs agreed not to seek since defendant voluntarily provided plaintiffs with the names, titles and company division of the 400 employees who received litigation hold notices. Given that the court itself had brokered this arrangement, Judge Nolan opined that plaintiffs’ tactic “could have a chilling effect on both litigants and courts to engage in candid discussions.”
