Cooperation in eDiscovery: Why Do It and Why It’s Important
Editor’s Note: Artificial intelligence is reshaping many aspects of legal discovery, but it has not changed one of the profession’s most enduring requirements: cooperation. Courts continue to expect parties to engage in meaningful discussions that narrow disputes, promote proportionality, and avoid unnecessary motion practice, regardless of the technologies used to manage discovery. As this article by Phil Favro explains, recent case law reinforces that unreasonable positions and a failure to collaborate can increase costs, delay proceedings, and undermine credibility with the court. Effective discovery depends not only on sound technology and defensible workflows, but also on transparent communication and practical problem-solving between counsel. For organizations maneuvering in increasingly complex litigation, cooperation remains a strategic advantage that can improve efficiency while reducing risk. Learn why cooperative advocacy continues to matter, and the lessons practitioners should take from recent judicial guidance.
Cooperation in eDiscovery: Why Do It and Why It’s Important
By Phil Favro, Contributing Author for HaystackID
With all of the talk and attention focused on artificial intelligence (AI), it would be easy to overlook a topic as pedestrian as cooperation. After all, shouldn’t advances in AI be able to help parties and their counsel handle discovery without resorting to disagreements over preservation, search, and production issues?
Simply put, no.
Technology innovations, though helpful for addressing complexities in identifying responsive information, can only do so much to facilitate discovery compliance. Ultimately, human conduct is still a significant driver of discovery disputes—and resolutions. And the secret to unlocking resolutions is frequently found in the time-honored method of cooperation.
Cooperation is not a topic that many counsel wish to discuss. It’s difficult, is often time-consuming, can be costly, and is certainly not an elixir for all disagreements. Indeed, many lawyers view cooperation as being a toxic notion; a weapon brandished to coerce a producing party into turning over far more information than is proportional to the needs of a case.
One example of this type of cooperation is found in Dale v. Deutsche Telekom AG, where a court rejected a demand for additional custodial discovery after the defendants had agreed to produce responsive information from 50 custodians after initially proposing just 29.[1] While the defendants “cooperated” by significantly increasing custodial discovery, the plaintiffs refused to drop their demands that responsive information be produced from at least three of the defendants’ in-house lawyers. The court could not countenance such a proposition, finding the request was disproportionate and reasoning that “plaintiffs got the better of the deal” during the parties’ negotiations. The court even observed that the discovery concessions the plaintiffs extracted from the defendants were excessive: “fifty custodians is a lot. And, it’s really a lot when they are essentially all of the requesting parties’ choosing . . . some might even say it is too many.” (emphasis in original)
Despite Dale and other negative case examples, cooperative advocacy is still a key approach in discovery. The Federal Rules of Civil Procedure call for some level of cooperation between the parties. In addition, local rules and standing orders often memorialize judicial expectations of cooperation on certain issues in discovery. Moreover, there are benefits for parties who pursue a path of cooperation.
In contrast, parties who shun cooperation in discovery could face negative consequences. Some of the adverse impacts that can result from a lack of cooperation were on display in the recent case of Flexport, Inc. v. Freightmate AI, Inc. where a court criticized each side for failing to engage in cooperative advocacy.[2] It is apparent from the court’s order in Flexport that the parties incurred increased costs, delays in getting disputes resolved, the potential for additional expenses, and—perhaps most significantly—a loss of credibility with the court. Thus, Flexport exemplifies both actual and opportunity costs that may impact parties who fail to cooperate or engage in otherwise unreasonable conduct.
Flexport—Resolving Various Discovery Disputes
Flexport involves trade secret and related claims, with the plaintiff (Flexport) alleging that two of its former employees “exfiltrated thousands of documents” from Flexport to start a competing product line for a new enterprise, Freightmate.[3] In its complaint, Flexport sued the two former employees, along with Freightmate, and sought documents and other information in discovery to substantiate its claims. The defendants, in turn, requested documents from Flexport to bolster their defenses. Several requests for discovery relief were pending before the court when it issued its April 1, 2026 omnibus order resolving the outstanding matters.
In his order, Magistrate Judge Peter Kang expressed a mix of concern and frustration regarding the parties’ inability to handle many of their discovery disputes short of motion practice. Judge Kang explained that most of the issues the Parties raised were premature, moot, unnecessary, or otherwise involved overreaching discovery conduct. Repeatedly, Judge Kang opined that “experienced counsel” from both sides of the litigation “v” should have resolved the disputes without the court’s intervention.
Flexport’s Interrogatories
By way of example, the court highlighted Flexport’s motion to compel the defendants to provide further responses to two of Flexport’s interrogatories. According to the court, Flexport sought a broad range of information that the defendants apparently deleted, lost, or destroyed. However, because the interrogatories were so broad in their nature and scope, Judge Kang reasoned that they “would sweep in a wide range of deleted documents which have nothing to do with this case or the trade secrets asserted in this case.” Judge Kang found that the additional information Flexport requested was neither relevant nor proportional to the needs of the case.
In so doing, Judge Kang observed that Flexport apparently raised this discovery issue with the court because it “distrusts Defendants’ prior representations” that their response to one of the interrogatories was complete. In response, Judge Kang explained that distrust alone is “not a sufficient basis to show that [judicial] relief is warranted.” Without evidence to show that the defendants’ responses were somehow incomplete, Flexport’s motion was both premature and unsubstantiated. While the court ordered the defendants to perform a further investigation to confirm that their interrogatory response was complete, it was only after the defendants offered to conduct the additional investigation.
The Jira Tickets
Another instance the court spotlighted involved Flexport’s motion to compel the defendants to produce over 400 Jira “tickets.”[4] Judge Kang found—as he did with Flexport’s interrogatories—that Flexport had overreached by seeking information outside the scope of discovery. Most of the requested tickets post-dated the pertinent timeframe surrounding the source code at issue in the litigation and accordingly were not relevant or proportional. Again, in response to an offer of compromise by the defendants, the court ordered them to produce relevant Jira tickets, but only from the period that would be pertinent to the source code.
When Flexport’s counsel suggested that there would be further motion practice over the disputed Jira tickets, Judge Kang admonished counsel for ignoring his directive that the parties “work diligently to resolve disputes through compromise and negotiation.” He then ordered the parties to “work diligently and cooperatively on any further disputes regarding Jira tickets promptly and use their best efforts to resolve” those disputes.
Evidentiary Sanctions
The court also found fault with the defendants for “repeatedly” seeking evidentiary sanctions against Flexport. As an initial matter, Judge Kang observed that the defendants’ sanctions motion was both procedurally defective and premature since they sought this relief in connection with a motion to compel and had failed to establish that Flexport violated a predicate discovery order.[5] Moreover, the defendants neglected to cite authority suggesting that Judge Kang could issue the requested sanctions since his charge by the district judge was for “mere discovery relief.” In dismissing this request, Judge Kang concluded that both sides were ultimately at fault and highlighted “the evident failure by counsel for both Parties to adequately meet and confer to narrow and resolve these disputes.”
“Sophisticated, experienced lawyers should know better”
Judge Kang finished his order with a four-paragraph admonishment, urging the parties to engage in cooperative conduct. In expressing his disappointment over the parties’ course of dealing, he emphasized the need for counsel to be more “diligent, transparent, and collaborative” in their meet and confer efforts. To substantiate those views, Judge Kang spotlighted multiple procedural rules and the court’s standing discovery order, which required adversarial cooperation while eschewing “overreaching” and “intransigence.” Capturing his concerns about the current state of discovery in the litigation, Judge Kang concluded that: “Sophisticated, experienced lawyers should know better how to resolve discovery disputes such as these, without the need for Court intervention.”
Judge Kang went on to suggest that he could draw upon several methods to help the parties be more cooperative and reach reasonable outcomes in discovery. Those approaches could include any or a combination of the following: (1) requiring in-person negotiations rather than phone calls or virtual meetings; (2) mandating that client representatives attend in-person meet and confer discussions; (3) directing that such negotiations take place in Judge Kang’s courtroom in San Francisco, California; (4) requiring the use of a court reporter to create a record of party discovery negotiations; and (5) imposing discovery or other sanctions.
Considerations Surrounding Cooperation
Flexport emphasizes the need for cooperative advocacy in litigation and discovery. Adopting a cooperative approach does not mean that parties must surrender merits-based positions without seeking judicial relief. Instead, Flexport teaches that parties and their counsel should address certain issues without resorting to motion practice.
While easier said than done, intransigence and overreaching can be costly. Motion practice is typically expensive. Coupling it with any or a combination of the five measures Judge Kang delineated in his order would significantly increase the cost of discovery. Moreover, it appears the parties lost credibility with the court. This could be problematic when the parties return to the court seeking relief, whether in discovery, pretrial proceedings, or trial.
Ultimately, Flexport should not be seen as just another judicial jeremiad against discovery abuses. Instead, parties should view Flexport as a directive to examine their discovery conduct and consider methods for cooperatively handling discovery issues. Those methods could lead to reaching accommodations with adversaries that reasonably prevent the occurrence of disputes or that dispense with existing disputes. For example, parties in general should be able to reach agreements on form(s) of production, non-waiver orders, and privilege logging. Scope of discovery, search methodologies and workflows, and validation procedures, though more complex in nature, are not out of the realm of possibility in terms of either reaching agreements or resolving disputes. Indeed, many courts (like Flexport) anticipate that parties will handle these issues without judicial intervention. Even in high-stakes matters, parties have often navigated their way through these issues without the overreaching and intransigence that Flexport found so problematic.
And yet, it would be naïve to think that every disagreement could be cooperatively resolved. Some advocates feign cooperative behavior while trying to extract concessions without ever yielding on issues from their own side. Moreover, there are adversaries that will simply not cooperate, requiring motion practice no matter how trivial the issue. The possibilities for uncooperative or unreasonable conduct are seemingly limitless. The converse is also true. Since negotiation is “the art of the possible,” parties and their counsel should consider approaching discovery in like manner. The results could be surprising in terms of their effectiveness in addressing disputes.
[1] Dale v. Deutsche Telekom AG, No. 22 C 3189, 2024 WL 4416761 (N.D. Ill. Oct. 4, 2024). [2] Flexport, Inc. v. Freightmate AI, Inc., No. 25-CV-02500-RFL (PHK), 2026 WL 931525 (N.D. Cal. Apr. 6, 2026). [3] Flexport, Inc. v. Freightmate AI, Inc., No. 25-CV-02500-RFL, 2025 WL 2399666 (N.D. Cal. July 10, 2025). [4] Jira is an enterprise project management system that tracks internal service requests through the issuance of a so-called ticket. [5] See Fed. R. Civ. P. 37(b)(2)(A).
About Phil Favro
Phil Favro is the founder of Favro Law PLLC, where he counsels clients on ESI, AI, and discovery issues and serves as a special master, mediator, and expert witness. Phil is nationally recognized for his expertise on ESI, discovery, and information governance, with courts acknowledging his credentials. See, e.g., Oakley v. MSG Networks, Inc., No. 17-CV-6903 (RJS), 2025 WL 2061665 (S.D.N.Y. July 23, 2025). This background makes Phil particularly well-suited to counsel clients and advise courts on information-related issues. As a special master, Phil is acclaimed for his collaborative approach, working with parties to find stipulated solutions to complex issues. For disputes that require adjudication, he is renowned for the clarity and vigor of his written dispositions, which are available on legal search engines.
About HaystackID®
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