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
In my law practice, I use PowerPoint more frequently than Word. Word processing tools are for preparing documents for people to read and understand; I use presentation tools like PowerPoint when I want people to see and understand. PowerPoint isn’t a word processor; it’s a visual presentation tool. You can fill slides with text as you might a word-processed document, but when you do that, you’re killing the power of PowerPoint.
I’ve just returned from a quick trip to San Juan, Puerto Rico. I travelled there to deliver a three-hour presentation on e-discovery as part of a day of education commemorating the 50th anniversary of Article III federal courts on the island. It’s a trip that’s been in the works for some time, and an event about which I was more than usually anxious and discreet. Part of my anxiety stemmed from three hours being a LOOOONG time for an audience to listen to one voice, especially when the topic is somewhat esoteric and technical. My time slot was the three hour block smack in the middle of the day. Too, there were more than 500 people in attendance, and I wanted it to be the performance of a lifetime.
I am fortunate to teach electronic discovery and digital evidence in many venues. There’s the semester-long, 
It’s said that the difference between men and boys is the price of their toys. True enough. A benefit of adulthood is that, if you’re lucky, you can splurge on stuff you dreamed of as a child. For me, a boyish passion was remote sensing and control. When you’re small and powerless, you feel bigger and empowered to monitor and control things from afar, even if “afar” is just a few feet away. So, before I began fooling with phones and multi frequency switching systems as an adolescent, I was a grade schooler stringing, first real string, then wires and finally transmitters and receivers to turn things on and off and monitor my little world.
Ball in your Court 