Careful readers of the revised Sedona Canada Principles will note the demise of the “meet and confer” in favour of a more shapeless process called “co-operation.” In my comments on the public draft I didn’t complain about this, as it had been proposed at a Sedona Conference meeting in Toronto and discussed quite thoroughly.
The issue is that lawyers felt that being shoehorned into a specific procedure is unduly restrictive. Being lawyers they start asking questions like – does the meet and confer have to be face to face? What about an exchange of emails – does that qualify as a meet and confer? Concerns about delay and cost relating to organizing in-person meetings I think are legitimate. Why have a face to face when agreement on discovery scope in a routine matter can be reached over the phone?
Of course the original meet and confer concept never required a face to face meeting and I don’t think there’s any reason to interpret it that way – at least not in 2015, when videoconferencing, web conferencing and conference calling are mature technologies.
To me, if eliminating the meet and confer was a way of making the process less restrictive, I was in favour. Let’s eliminate as many excuses and roadblocks as possible. Adding more formal procedures to the already overburdened civil litigation process is a bad idea. On the other hand, asking litigators to “co-operate” with each other at the outset of a lawsuit without any formal process for doing so has led to failure. Co-operation and litigation do not naturally go together.
In Ontario the fallback position is that since a joint discovery plan is mandatory, the parties have no choice but to co-operate. Ultimately this means that with or without a formal meet and confer the parties must devise some method of coming to agreement on scope and format of disclosure, identity and timing of oral discoveries. But in practice this has met with resistance from the bar – so much so that some believe rule 29.1 (the Ontario rule mandating discovery plans) should be revoked.
Without a mandatory joint agreement there would be no apparent incentive whatsoever to co-operate in e-discovery matters. Of course there are real incentives – like saving the client a great deal of money or getting to the truth more quickly. But for many lawyers those are secondary considerations to the prime directive – fight and win.