High Noon in DC: Judge Facciola Lays Down the Law on Discovery Cooperation

Anyone who thought that the concept of cooperation among counsel in discovery matters under the mandates of the Federal Rule of Civil Procedure 26(f) and The Sedona Conference® “Cooperation Proclamation” was a hollow platitude or aspirational goal, might want to review the latest word on this from one of the pre-eminent ediscovery Judges in the Country, Magistrate Judge John Facciola, of the United States District Court for the District of Columbia. As he is wont to do, Judge Facciola took the opportunity presented by a rather pedestrian discovery dispute among counsel to make clear that the watchword in litigation discovery is cooperation among counsel, at least in his court.

The case is Taydon v. Greyhound Lines, Inc. and involves pro se plaintiff Taydon’s claims that Greyhound infringed on a certain patent of his by utilizing the patented technology on their buses. Addressing dueling claims of discovery deficiencies and delays by the parties, Judge Facciola deftly dealt with the claims for sanctions and motions to compel by his typically careful analysis of the rules and precedent in DC and Federal Circuits.

In closing his June 6, 2012 opinion, however, the Judge laid down the law on the discovery cooperation mandate:

"III. High Noon

As explained at the discovery status hearing held on April 30, 2012, there is a new sheriff in town—not Gary Cooper, but me. The filing of forty-page discovery motions accompanied by thousands of pages of exhibits will cease and will now be replaced by a new regimen in which the parties, without surrendering any of their rights, must make genuine efforts to engage in the cooperative discovery regimen contemplated by the Sedona Conference Cooperation Proclamation. (citation omitted) First, the parties will meet and confer in person in a genuine, good faith effort to plan the rest of discovery. They shall discuss and agree, if they can, on issues such as the format of any additional productions, the timing and staging of all depositions, the submission to each other of discovery reports, and the scope and timing of any Federal Rule of Civil Procedure 30(b)(6) depositions. The parties will then jointly submit their discovery plan for my approval. I commit myself to work with them in resolving any disagreements, whether they arise initially or during discovery. To that end, I will schedule a telephonic status conference every two weeks in which I will ask the parties about their progress (or lack thereof) and try to resolve any disagreements they have."

We can only hope that more judges will follow “Sheriff” Facciola’s lead in not only pressing parties to cooperate, but in making themselves readily available to assist cowboys that have difficulty understanding that Wild West ways of litigation may be coming to an end.

Mark S. Sidoti Chairs the Gibbons E-Discovery Task Force.
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