This isn’t a post about e-discovery per se, but it bears on process and integrity issues we face in cooperating to craft e-discovery expectations.  Still, it’s more parable than parallel.

My home in New Orleans sits at the intersection of two narrow streets built for horse and mule traffic.  It’s held its corner ground since 1881, serving as abattoir, ancestral home of a friend and now, my footprint on the ground in the Big Easy.  New Orleanians are the friendliest folks.  You can strike up a spirited tête-à-tête with anyone since everyone has something to say about food, festivals, Saints football, Mardi Gras, the Sewage and Water Board and the gross ineptitude of local government in its abject failure to deliver streets and sidewalks that don’t swallow you whole or otherwise conspire to kill or maim the populace.

That’s not to say the City does nothing in the way of maintaining infrastructure.  Right now, New Orleans is replacing its low-pressure gas lines with high pressure lines.  Gas is a big deal where everyone eats red beans on Mondays, but it’s also useful for heating and, even now—still—for lighting.  So, every street must have new subterranean lines installed and new risers brought to gas meters.  I knew nothing of this until I awoke to find a crew with an excavator on my property destroying the curbs and antique brick sidewalks I’d lately installed at considerable expense.

To be precise, some of the workers were on my property and some on city property.  No matter.  There would be an easement giving the City access to utilities and doubtlessly a clause in the fine print of every utility service agreement that grants the power company unfettered access to private property (and probably sodomy on demand)  But talk about a contract of adhesion!  Electricity and gas are hardly edgy lifestyle choices, even in New Orleans.

I dashed out to stop the destruction until I could get an assurance that the demolished brickwork would be replaced.  The flummoxed crew stopped and summoned David, the sub-sub-contractor’s supervisor.  Nice guy.  I explained the peculiarities of my property’s metes and bounds and notified David that the brickwork was not the City’s property, but my own; my private personalty situated on my private property.

David earnestly assured me that someone would make everything right once the lines were in.  He promised they would replace the bricks they’d broken with matching bricks as needed, and when it was over, it would look as good as…old.  So, we struck a deal: They would cease work until I received a letter reiterating David’s promise.

Enter Danial, David’s Division Manager.  Nice guy.  We had a pleasant visit about kids, commutes and careers.  Danial upped the restoration ante, assuring me that, if I wasn’t happy with the way they restored the property, I could pay my own contractor to fix it to my satisfaction and his company would reimburse me for it.  Impressive!  Incredible!  Yet, I simply asked that they give me a something in writing saying they’d fix it as it was (i.e., what David promised).  Danial agreed, everyone stood down, and I waited for the letter.

That was a week ago.  I returned home last night from four days at Relativity Fest in Chicago and was roused at 7:00am by the sound of men and machinery.  These guys start early, I’ll give them that.

When I saw them digging up my sidewalks again, I was pissed.  They’d committed to stop work until they put their promise to restore in writing; but here they were, just forging ahead.  David was onsite and looked sheepish, now claiming he said he would “try” to get a letter.  So, I called Danial on speakerphone with crew assembled.  Danial confirmed David’s promise of the letter and reiterated that the restoration remained assured, that I’d be satisfied, etc. etc.  But when I asked when the writing reflecting what was promised would arrive, he replied, “Well, that’s tricky.”  TRICKY!?!  Danial explained that they couldn’t put what they orally promised in writing because if the company put promises made to homeowners in writing, then they could be forced to do what they promise.  Here, I thought, is a man utterly free of guile and honestly trying to help me.  Accordingly, I tamped down my urge to scream, “YES, That’s the WHOLE @#$% POINT!”

I’m too late in the Baby Boomer demographic to chain myself to an excavator, so I made clear my disenchantment, cautioned them against trespass and retreated.

Minutes later, a knock on my old red door revealed one of the crew handing me a cell phone connected to the sub-contractor’s Grand Poobah, Brett.  Brett was calling from his fishing cabin in Mississippi (poobahs need vacations, too).  Brett was simply the nicest good ol’ boy in the world and I have no doubt, he is a God-fearin’ man of his word.  Brett showered me with assurances that they would put the bricks back masterfully, even vouchsafing that he would personally be fine if I demanded they rip it all out upon completion and use a different color grout if they didn’t obtain a good match.  The sidewalk bricks aren’t set in grout, but no matter; Brett was going to personally make sure I was happy with the work.  I could take his word for it…as long as he didn’t have to put it in writing.

I thanked Brett and assured him that I had no doubt of his genuine good faith, but that I still needed someone to put in writing what he was fervently promising on the phone.  “Well,” he drawled, “we can’t do that.  It’s the City.”  Blaming “the City” is a safe bet in New Orleans.  I assured my new BFF Brett that I wasn’t looking for anything fancy or complicated.  I just wanted someone to make the same “we will put it back like it was” commitment that everyone was offering, but in the form of a letter, note or e-mail.  Brett said their policy wasn’t to put things in writing, but offered to get me over to Michelle, the power company’s project engineer.  Getting to the power company was moving up three tiers!  My nose nearly bled from the increase in altitude.  And I was going to talk to an engineer!

I have the utmost respect and admiration for engineers.  Truly.  My lifelong dream has been to be an engineer, but just now, my dream was that Michelle would understand why unequivocal oral promises from people who blanch at the notion of putting anything in writing undermines my confidence.

Instead, Michelle dispatched Clint the Peacemaker from the Power Company (though  officially Clint’s title is Gas Operations Coordinator).  Clint came to my home sporting a well-worn hard hat, signaling to me that Clint’s word was his bond (or at the very least Clint was less prone to closed head injuries).  Clint had blueprint-sized charts in hand, and Clint had an honest-to-goodness posse in tow, composed of delegates from the subcontractor and sub-subcontractor.  Possibly even U.N. Secretary-General António Guterres, but as not all were introduced, I can’t be certain. They were there to watch the Peacemaker at work.  Clint even brought a brick mason and photos of the brick mason’s prior work, like baby pictures for me to admire and coo over.  I admired.  I cooed.

Clint and I chewed the fat over property lines, easements and masonry.  Nice guy, and a seasoned pro justifiably confident in his ability to soothe the ruffled feathers of agitated homeowners.  They were absolutely going to make it right if I would just let the work proceed.  Clint even gave me his business card–something he allowed he doesn’t do for everyone–and invited me to call him directly.  Wow!

That’s not sarcasm; being able to call someone at the power company would shortcut several levels of sub-sub middle managers in my quest for (cue Harlem Nocturne) sidewalk justice on the mean streets of the City That Care Forgot. 

I once more related my conviction that everyone meant what they said and confided my certainty that the outcome would be so magnificently true to the original that I’d be speechless in admiration of their artisanship.  Truly, everyone was nice, all were sympathetic and I have no doubt all are honorable men (perhaps even Michelle, for it could have been ‘Michel’ here in Cajun country, and none shared her/his/their preferred pronoun).

But I made it clear to Clint that I wasn’t going to get out of the way until someone put it in writing.

To his everlasting credit, Clint relented and said he would send me an e-mail in the morning telling me they would restore my property on condition I don’t tell my neighbors he’d put anything in writing.  I await the e-mail as I write this.

Clint lamented that people complain about the things they screw up but no one commends them for what they do right.  He suggested I might proffer kudos and attaboys to his bosses when the work’s done.  I said I would.  Then, with nary a trace of irony, Clint asked that I communicate my commendations in writing.

The moral of this Life-on-Laurel Street story is simple: If you make a promise, be willing to put it in writing. 

A written promise is less prone to frail or selective recollection.  Sure, not every employee has the authority to tender a written promise; but, if you lack authority to make a promise in writing, why do you imagine you have the authority to make one orally?  It’s wrong to try to shame persons seeking written confirmation because they don’t “trust” oral promises the promisor won’t commit to writing.  The person making the promise may leave the job or the world.  What he said may not be what you heard.  Writings can be ambiguous, but less so than oral recollections after the passage of time and evolution of consequences.  There’s a reason for the old saw, “an oral promise isn’t worth the paper it’s printed on.”

Why do people who make a promise balk at putting their promise in writing if not to gain wiggle room and plausible deniability?  All persons I dealt with struck me as courteous, genuine and straight shooters.  I would have loaned them money. Yet, all but one saw a fearsome difference between what they could promise orally versus in writing.  There’s something wrong with that.

There is no difference between an oral and a written promise except as measured by the obligor’s willingness to prevaricate.  If you make a promise, don’t refuse the request, “Can I get that in writing?”  It’s not an affront to your character; it’s an opportunity to demonstrate good character, because you’re the type of person who wouldn’t make a promise you weren’t willing to put in black and white.

There’s plenty of room for trust in life and many times we must make leaps of faith.  Nonetheless, when the time comes to force a big company acting through multiple subcontractors to put the bricks back, a written promise (and a few photos) are more compelling than any self-serving recall of a former employee’s statements.  Trust everyone but cut the cards.

Epilog 10/25/19: Michelle called this morning.  She had Clint in her office.  Clint sent an e-mail stating, “Upon completion of work to be done, the area will be returned to its former condition.”  That’ll do, except now, I’d wish we’d all taken a selfie.