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Folks on our side of the “v” complain about “asymmetrical discovery.”
(Actually, the two of us complain about everything. But even fair-minded folks on our side of the “v” complain about asymmetrical discovery.)
In product liability cases, the plaintiff typically has to produce a few hundred (or few thousand) pages of medical, educational, military, insurance, and employment records. That’s it.
Not so for the defense. The plaintiff may request production of millions of pages of documents related to the development and marketing of complex products over the course of decades. And, in our new e-age, the plaintiff will also request production of a gazillabyte of e-documents.
The defendant is forced to spend hundreds of thousands of dollars (or more) identifying, retaining, and reviewing for relevance and privilege the avalanche of documents that it must produce.
That’s bad enough.
But wait! It gets worse!
Or, at least, we fear that it will get worse.
We fear that search technology will increasingly permit plaintiffs to identify with relative ease the specific information that they need, but the technology will be far less helpful to defendants trying to separate the wheat from the chaff.
Famed plaintiffs’ antitrust lawyer (and one-time mayor of San Francisco) Joe Alioto used to say of his strategy that, “I take the highways. I let the defense lawyers take the by-ways and cul-de-sacs.” (We know; we know. It’s culs-de-sac. But we swear that’s not what Alioto said.)
He had a point. The plaintiff’s theme at trial is typically simple. “Follow the money” or “Who knew what when?” or “This company put profits before safety.”
But, whatever it is, it will be straightforward, and it won’t be too hard to find the documents needed to take testimony from a witness at deposition or to cross-examine a witness at trial. A computer search for all mentions of a specific adverse reaction, or for all e-mails to or from a particular person, is likely to yield most of the critical information.
The defense lawyer’s target is more amorphous. Before he defends a witness at deposition, the defense lawyer must learn not only what the witness knows (which you might find in the witness’s records), but also what the witness didn’t know at various times — and might be accused, under oath, of ignoring.
When a plaintiff identifies that one “bad e-mail,” the defendant must put the e-mail in context. Finding the e-mail isn’t hard — a computer search could turn it up — but placing the e-mail in context can be a bear, requiring intuition that computers lack.
Before a deposition, every defense lawyer frets about what he doesn’t know — and it’s tough to frame a computer search that will unearth that ignorance.
As we hear about (and evaluate) systems for searching documents, it seems that life keeps getting worse for the defense. We’ve seen gadgets that will take a requested search, review a ton of documents, and then identify a small subset of documents in their likely order of importance. But all of those contraptions assume that you know what you’re looking for; they help you find a needle in a haystack.
As defense lawyers, we’re often trying to discern the shape of the haystack, and computers simply aren’t much help.
As the volume of e-documents that companies generate increases exponentially, we fear that search tools will increasingly be of one-sided utility, saving plaintiffs’ counsel an awful lot of time and money, but not providing an equal saving to the defense.
Time, we suppose, will tell.
For the present, we’ll just fret about what the future may bring.