The skyrocketing cost of litigation has some in the legal community calling for increased cooperation between opposing counsel in the early stages of e-discovery.

A July 1st story on Law.com poses the question, “Should lawyers play nice in e-discovery?”

Common sense dictates we should. Aside from the general need for professionalism and civility in everything, there’s no denying that uncooperative e-discovery can exponentially increase the cost of litigation. Likewise, there’s no indication that the growing tide of data will slow. It will grow and grow fast.

However, I’m skeptical that lawyers will be inspired to cooperate any more than they have in the past simply because they’re worried about the rising costs of litigation. The way I see it, lawyers will only become more cooperative when they are compelled to do so by a judge and the real threat of court-ordered sanctions.

The existing Federal Rules of Civil Procedure already provide an ample framework for cooperative e-discovery. Rule 26(f) dictates that opposing counsel must meet and confer early during litigation to agree upon the scope of e-discovery. It’s a good rule. We don’t need new rules. What we need is the existing rules to have teeth. An unenforced law is a useless law.

Here’s an example, albeit in an unrelated area of the law: Here in Washington state, we have a law that prohibits the use of a cell phone while driving. Drivers may only talk on their mobile phones while driving if they use a hands-free device.

The problem with this law, however, is that the threat of enforcement is too weak. The police are not empowered to stop motorists for talking on their mobile phone unless the motorist commits another offense, like running a red light. They can’t just pull someone over and ticket them because they were talking on a handheld phone. Not surprisingly, recent reports show this law has had little effect on the number of drivers using cell phones.

Likewise, the justice system can’t simply rely on a sense of fair play or concern over rising litigation costs to make attorneys more cooperative with one another. A bigger stick is needed.

The courts seem to be moving in this direction. Several judges in state and federal courts have levied severe fines against attorneys and their clients when it’s become clear the discovery process was being abused. In the future, I think judges will continue along this path, as they should.

It will take more than pie-in-the-sky axioms about the good of the justice system to get attorneys to change. They need a reason. And if that reason comes in the form of the real threat of severe sanctions, we may all find that the urge to cooperate will grow.