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.
Note that I say “rationalize.” I don’t think I’ve known many lawyers who would acknowledge, even in their own hearts, that they’ve crossed lines withholding responsive information. Lawyers enjoy a host of coping mechanisms enabling us to conclude that our actions are justified. Like Trump’s tax avoidance, we are entitled to do anything the law allows, even when the stench is unbearable and the optics awful. Some decide, “Discovery is a game, and everyone uses cheat codes, right?“
Litigants don’t even bother to rationalize. They think the system’s rigged, their opponents are greedy opportunists and they (the “good guys” and “the real victims”) have every right to fight back in any way they can. Some fight back by obstructing discovery. It occurs individually, institutionally and as a corrupt corporate culture. It can be clothed in “repeatable processes” or manifest as data sources studiously forgotten or searches of the unsearchable. It occassionally shows up as plain ol’ deceit or smug, smarter-than-you decisions to supress.
Of course, I’m not talking about me or you or your partner, Lou. Dear Reader, we are above reproach and labor mightily to locate and turn over the information our opponents seek, no matter how much it will hurt our client’s position. I’m talking about them. And there’s a whole lot of them on both sides of the docket.
But before I write another word, let me pay homage to the lawyers who do unflinchingly locate and produce evidence against their clients’ interests despite a full appreciation of what they do and its consequences. You make me proud to be a lawyer. I hope you have not been made to pay too dearly for your integrity in terms of clients and cases lost. You are a credit to our profession, the justice system and the nation. Both of you. ;-))
Although only one side tends to be called the defendant in litigation, our adversarial justice system obliges all parties to be defensive. Discovery is omnidirectional, and both sides probe for weaknesses in the other’s position. Defendants seek grounds to impeach and to shift responsibility, prove contributory negligence or demonstrate failure to mitigate. Business litigation routinely prompts counterclaims putting both sides in plaintiffs’ shoes. So, my raising this ugly business of obstruction isn’t aimed at defendants and corporations. Everyone’s a responding party in a lawsuit. Every lawyer should want discovery to work without thumbs on the scale, and want it more than the win.
In discovery, most of the cost and effort is expended in review. Staggeringly so. Estimates put the cost of review at 75-90% of the overall cost of discovery. Most of that goes to lawyers.
What is the purpose of that expensive review? Here, opinions diverge. Some would say that the pure motive is to find non-privileged, responsive material and produce it. That’s the duty we owe, and we must be prepared to defend our actions to the Court when challenged. But, can we also admit that a commensurate, sometimes ignoble purpose is to find and forestall production of privileged communications, embarassing content, fodder for new claims and material tending to support the other side’s position or undermine ours?
I’d like to say that we devote all that expensive effort to discovery because we genuinely want to get to the bottom of what happened and do justice; but, who am I kidding? We do it because the law makes us do it; and we do it–lawfully, we hope–in the way that most undermines our opponent’s interests. Sometimes lawyers lose their objectivity, forget their duties to the justice system and get so adversarial that we squint until the line becomes blurry and tell ourselves we haven’t crossed it. Else, we reason, “the ends justify the means,” and that we are “only fighting fire with fire.” Claiming the system is “rigged” seems to justify the most abhorrent behavior.
So where do discovery analytics fit into this troubling tableau? The insightful work done by researchers like Ellen M. Voorhees at the National Institute of Standards and Technology oblige us to confront something we’d rather ignore: the quality of linear human review of information items in discovery is abyssmal. Granted, we’ve built a huge and profitable industry around the practice; but when you measure the variability in assessment across reviewers and the incidence of mischaracterization by reviewers, it takes your breath away. Human beings are terrible at reviewing documents in discovery! They suck at it (not me, you or Lou, remember; them).
Using linear manual review, we are also all thumbs when it comes to preventing inadvertent production of incriminating material. If the other side is paying attention, inadvertent production is the thread pulled to unravel the Ken Bone Red Cable Knit Sweater of Obstruction. Errors in review are like random drug tests. We want to believe everyone plays by the rules; but, when we check, it turns out not everyone does.
A better system of review and culling will be a better system for shielding abuse. Computer-aided review is wonderfully consistent and throrough. If the system is better at flagging probative material, then parties and counsel will be better at producing it…and some, in supressing it. “Better” is defined by your goals.
The fact that superior analytics will make it harder to uncover corruption isn’t an argument against superior analytics. Superior analytics are essential and inevitable. We must use better tools to lower discovery costs, improve consistency and speed workflows. Yet, we must insure that “better” not manifest as “better hidden.” Discovery abusers, like criminals, are brought to justice by their mistakes. Error has its silver lining in protecting the integrity of discovery. As errors are reduced by technology, we need new ways to detect and deter discovery abuse. Let’s talk frankly about those needs, too, as we extol the virtues of advanced analytics.
What do you think?