Technology, “the Fire that Burned down the House?” (Part 2)

Technology, “the Fire that Burned down the House?”

April 15, 2010| Law & Forensics
Part 2 of 2

Daniel B. Garrie, is the  Senior Managing Partner  at Law & Forensics LLC and works out of the Seattle, Los Angeles, and New York offices. He focuses on e-discovery, digital forensics, cyber security and warfare, data privacy, and predicitive coding working with law firms, governments, companies, and non-profits globally. 

Admittedly, there are areas of the law where the discovery process is inherently complicated (e.g., certain intellectual property disputes; novel tax controversies; aspects of securities litigation; certain criminal defense matters, mass torts, etc.)  However, most cases, regardless of the amount of money at stake and the number of parties involved, are not particularly “complex” per se.  In distinguishing between “complex” and “non-complex” litigation, the third edition of the  “Manual for Complex Litigation” interestingly described complex litigation as the “need for…judicial management with the participation of counsel.”  SeeManual for Complex Litigation,” 3rd, p. 3 (1995).   If a 2010 version of the manual were available, it is not unreasonable to assume that voluminous (and sometimes vitriolic) and expensive discovery could be a considered factor in categorizing a controversy as “complex.”

As Justice Frankfurter opined in Indianapolis, litigation is the pursuit of practical ends; however, almost 70 years later, practicality has eluded a vast amount of litigation, where albeit perplexing, with even lower-stakes disputes generating high-cost discovery.  Since such few cases go to trial than in prior years, most lawyers are failing to prioritize the “facts” of their client’s case and fall into the “cabal” of the “discovery fight.”  Such a conduct trend is not beneficial to clients and has created a culture of pre-trial litigation discovery being, in reality, a profit center. The client‘s initial dispute is eclipsed by a firestorm of expensive and undirected discovery.  It is ironic that discovery has become so expensive especially since the trial is rapidly being replaced by settlements, mediations, arbitrations and pre-trial dispositive rulings.

The diminishing volume of cases that are actually tried has created a shift in the search for the truth through factual evidence, to the discovery of the potentially relevant. With inquiries that resemble a “pyromaniac” running around with matches flicking them out at random to see what catches on fire, the art of the strategic question and or inquiry seems lost.  By nature, in a risk-averse profession such as law, grappling with the impossibility of reviewing every document with a moral level of certainty, the discovery process has taken on a life of its own.   This is disconcerting when considering that lawyers have skillfully managed complex high volume discovery, including millions of pages of documents stuffed into teetering boxes in huge warehouses for decades long before the current advent of electronic document review and native production of meta data.  Modern day litigators and courts are now beginning to feel the heat from 21st century discovery practice.  A good trial lawyer understands the need to strategize and organize his case, and then tell a story that is clear and practical.  A trial cannot exist without the people who partake in the process but technology has, in many ways, depersonalized the litigation process.  Just think about the last time you actually picked up a “classic” phone to call opposing counsel, likely you used a Blackberry or some other device (while driving) and maybe Skype, texting (hopefully not while driving) or e-mail. Telephone conversations are becoming sadly obsolete.  Therefore, opposing counsel discuss the merits of their clients’ positions far less frequently than in years past. This lack of contact leaves litigants feeling more isolated and prone to bad behavior, resulting in a lack of reasonable and practical litigation.

Discovery is not a trial surrogate, and using it as an alternative means to “smoke up the record” and drive expenses sky high for an adversary is not efficient.  Trial lawyers should consider a recalibration of discovery practices that utilize technology in a productive, rather than in a distractive manner, thus benefiting the profession as a whole.  Technology is crucial to the advancement of society, which includes the judicial process; however, it has made the discovery process far less human.  Lawyers are losing sight of the fact that such software application programs are intended to enhance counsel’s understanding of the case, and not to replace common sense and reasonableness in trying a case on its merits. The goal of discovery should be the search for relevant information and evidence that could be used later at trial.

Practitioners are too quickly relying on canned discovery requests geared to a “scorched earth” policy rather than strategically shaping a client’s case. Practitioners are spending too much time and resource looking for what is likely, a non-existent “smoking gun,” and not enough time on crafting the case in front of them.  Today it could be said that preparation for trial has shifted the legal profession from one of issue- spotting, to one of issue-making through discovery inundation.  Counsel must be vigilant so that discovery does not result in a trap of confusion and expense for the unwary. The old saying “be careful what you ask for, you might get it,” may well be the mantra of lawyers who, in the effort to keep the fire fighters battling someone else’s fire of discovery, inadvertently find themselves engulfed in flames.

The discovery process is about investigating information about the facts involved in a particular dispute rather than creating a dispute within an existing dispute. Courts rely on the parties’ ability to engage in productive discovery that is handled in a professional manner. This includes both the lawyers and the parties themselves favoring common-sense analysis of case information and evidence, over discovery abuse and dilatory burdening of the opposition.   Courts are interested in a good faith and fair adjudication of the disputes before them.  The responsibility to maintain a high level of public confidence in the judicial system rests equally with those who participate in its process. Lawyers, like everyone in society today, should view technology as a helpmate.  But, technology misused, could result in a “fire that burned down the house!”

Maureen Duffy-Lewis is a Los Angeles Superior Court judge. She currently sits in Department 38 at the Stanley Mosk Civil Courthouse.
 
Daniel B. Garrie, Esq. has a B.A. and M.A. in computer science. He is an e-discovery neutral and serves as a court appointed special master with Alternative Resolution Centers. He also serves as e-discovery advisor to Digital Reef, Inc. He can be reached at dgarrie@fsrdg.com.