During the development of the New Framework, plaintiff lawyers urged mandatory cooperation between parties as the best solution to the discovery problem. The defense lawyers urged cost-shifting. Each proposal was anathema to the other side.
The Center is working on a voluntary protocol, which would accommodate both proposals and include the following provisions:
Mandate cooperation between the plaintiff and defense sides
Allow the requesting party in discovery to direct what information and how that information is to be searched
Set a cap on the amount of money expended by the producing party on discovery
Allow discovery beyond the cap only if the requesting party pays for it (cost-shifting)
The proposed protocol is intended to be of mutual benefit to both parties. The requesting party can direct what information and how and by what method that the producing party can search for discoverable information. To make informed decisions, the producing party will need to fully consult and cooperate with the requesting party on where discoverable information may be located.
The drafting team will develop practices ensuring that information needed to make decisions about what should be subject to discovery and how to search it are well informed. In return for full cooperation and consultation, the producing party is guaranteed a maximum spend on discovery. Any discovery request that exceeds the maximum amount will be paid by the requesting party (cost-shifting).
The costs of discovery will be estimated on a per-gigabyte and objective basis under the New Framework’s cost calculators, as adjusted by party agreement. And the requesting party will be authorized to direct which custodians and which data sources as well as the volume of data that will be subject to discovery subject to the cost cap.
Among the many details that the protocol will need to address are the following:
The timing of the production of requested discovery, which will need to provide phased production to allow the requesting party to better understand which information to search
The extent of the producing party’s disclosures without revealing privileged matter
The adjustment to individual elements of the New Framework’s cost calculators to account for local conditions and circumstances
The setting of the cap on the discovery spend, grounded on the New Framework’s estimates, which are based on the amount in controversy
Providing exceptions, if necessary, under clear limitations
If you are interested in joining the team, please advise the Center at firstname.lastname@example.org. Team members can serve as team leaders, drafters of language, editors, and reviewers. Members will be accepted during all phases of the project.