This is a peculiar post in that it’s not an essay with a takeaway so much as a cerebral beach ball tossed to the crowd in hope that readers might enjoy batting it around (in comments below or over cocktails at the next e-discovery confab). My proposition is that error, particularly inadvertent production occurring as a consequence of human carelessness, is a useful hedge against obstruction. Put another way, producing parties have become so adept at or inured to confounding e-discovery that a producing party’s mistakes are now our main–and perhaps only–means to uncover abuse. I further posit that, although the shift to technology-assisted review is driven principally by cost savings, its incidental “benefit” to producing parties lies in its ability to stem inadvertent productions serving to reveal discovery abuse.
I concede that’s a cynical proposition, and I dearly wish it weren’t so dour; but, I’ve been litigating for 35 years, a third of that time dedicated to unspooling failed and abusive e-discovery efforts as Special Master. Judges don’t ask me around to admire discovery efforts done right; I’m invited to disaster areas. When I was counsel for injured parties in products liability and negligence matters, I lived the grind of forcing opponents to surrender information that helped my clients. It was never easy; it can shake your faith.
Then and now, opponents fancifully characterized damaging information as privileged or decided that the author of the inculpatory e-mail or memo didn’t really mean what he or she plainly said. Lawyers and clients will withhold damaging responsive data based on a tortured interpretation of a request or by the slender reed of a boilerplate objections: “Vague!” “Overbroad!” “Unduly burdensome!” Lawyers have a remarkable capacity to rationalize failures to produce responsive material in discovery. Continue reading