The Judicial Mandate for Early Case Assessment and Cooperation – Mancia v. Mayflower Textile Services Co.

(as published by Fios, Inc.)

“If there is a hell to which disputatious, uncivil, vituperative lawyers go, let it be
one in which the damned are eternally locked in discovery disputes with other
lawyers of equally repugnant attitudes”

Oklahoma Western District Judge Wayne Alley’s words, written in the “BDD” era (1989, “before
data deluge”) have recently been elevated to a call for action by Magistrate Judge Paul Grimm (D.
Md.), who cited them in his opinion in Mancia v. Mayflower Textile Services Co., 2008 WL 4595175
(D. Md. Oct. 15, 2008). The Federal Rules of Civil Procedure, he wrote, require counsel to actively
cooperate on the parameters of ESI discovery demands and responses. In a discussion of the
burdens of extended discovery disputes on the courts and litigants, Judge Grimm, citing the
Sedona Conference Cooperation Proclamation and a plethora of federal decisions bemoaning
how discovery disputes have become a very expensive tail-wagging-the-judicial-process dog,
served notice that – to paraphrase the late Paddy Chayefsky in the movie Network – the federal
bench is mad as hell and isn’t going to take it anymore. Counsel will be required, under threat of
sanctions, to assess each case at a very early stage, hone their discovery demands and
responses according to the value of the case and requirements of its merits, and be prepared to
agree with their adversaries on how to tailor the discovery process to provide for an expeditious
resolution of the case.

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