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Trust But Verify — What E-discovery Should Be

This article by John Hopkins of Searcy Denney Scarola Barnhart & Shipley appearing in JD Supra, addresses the trend toward adversarial behavior by lawyers engaged in the discovery process. The author notes that if a lawyer requests discovery related from the opposing party, the most likely response is “a quickly erected brick wall.” Mr. Hopkins writes that “(d)efense lawyers complain their adversaries want to take advantage of cooperation and plaintiffs lawyers sometimes have trouble finding a hint of cooperation in most of the discovery process.” The article addresses exactly what discovery is permitted under Rule 26(b)(2)(i), (ii), and (iii) and notes that the Rule’s wording, “encourages broader cooperation in at least the area of disclosure and should particularly apply that way in today’s complex e-discovery world.” . The author questions why parties can examine the basis of expert opinions, but are precluded from questioning the methods used by opposing counsel as part of their TAR process, noting that forms of TAR can be “heavily influenced by the party employing it.” While parties can now employ a host of experts to verify the adversary’s discovery methods, the author suggests that everyone’s candor can be kept in check “by simply cooperating and starting out on the same page in the discovery process.”

Read the full article here.

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