Mark Levison, The Levison Group
Gosh darn it! You know I don’t really want to be thought of as old fashioned, not that there’s anything wrong with being old-fashioned. On occasions, older is better. After all, no one could ever suggest that today’s motor cars hold a candle to the cavernous steel-bodied behemoths of the ‘50s and ‘60s, and the days when you could understand the words to the music on the AM radio dial were preferable to today — when you don’t have a clue what the words are, or what the word you can hear mean (or being embarrassed if you do happen to understand the words because you are standing in front of your kids), but the thing is, time stops for no man. I think Bruce Springsteen said that, or maybe it was somebody before him, but to reiterate, despite these poignant examples, I do not want to be known as a fellow living in the past (I admit, however, that as I am dictating this column, I am headed down the highway, after lobbying our state legislators on a pending bill, wearing blue mirrored sunglasses that originated in the UK during the Beatle era)...which brings me to my point about document discovery.
Yes, that’s the latest thing that’s got me wondering about the passage of time. I heard it through the grapevine (Gladys Knight & the Pips or Marvin Gaye if you prefer – and their words were understandable) that document production has been made easier through the invention of such things as searchable disks, flash drives and computers in general. So much for rumor. Not everything you hear on the streets is true.
I recently produced documents in a case pending on the East Coast. After the mandatory federal disclosures and document requests, our side produced about 5,000 pages. Not a small number, but very manageable. We loaded them on a disk (I used the word “we” rather loosely — I know how to load a briefcase, or even a truck, but I’m not much help when it comes to disk loading) and “we” Fed-exed the saucer-shaped new age metal filing cabinet to opposing counsel. One of the defendants then subpoenaed some of the shareholders of my Plaintiff client, requesting their emails to each other. I responded that we had produced the relevant documents, and that I doubted there would be much in the way of relevant interpersonal emails. I underestimated. As it turns out, emails make the reproductive characteristics of amoeba look like simple arithmetic. You see, it all starts very innocently. Robert sends Mary an email. In so doing, he creates a document. Once an attorney has weeded through cumbersome issues such as the attorney/client and/or work product privileges, the determination that the document is reasonably calculated to lead the discovery of admissible evidence, and other such theoretical pillars of federal discovery, the end result is likely to be a document that needs to be produced. Fine. Next, however, Mary emails Robert back. That communication between Mary and Robert is another document, but wait! We now have a communication from Robert to Mary, another from Mary to Robert and, depending if she simply replied, or sent a new email, one of those emails now contains both communications. Ok, but then, not content to leave well enough alone, Robert emails Mary back and just to make it difficult on me, he copies three other people. Those three people might email back Robert, or Mary or they might email back Robert and Mary, or they might forward the email to Alexander and/or Alisha. You may be getting an inkling of the mess we are getting ourselves into. Before you know it, one communication has turned into 50.
Consider this. In the old days, and I’m not going to call it the “good” old days (because I’m not old fashioned), when people wanted to communicate, they did it over the phone, i.e., no document chain, or perhaps they even wrote a letter. Remember letters? They were nice, they were often thoughtful, and they took a lot of time, so we didn’t write too many. Once in a while, people wrote back. The process would take days — sometimes weeks — and it would result in only two documents. Nowadays with emails — and people refusing to talk directly to each other (even when officed two doors down) – people are creating producible documents faster than Baron Van Trapp produced singing Austrian children.
In the email age, it is just too darn easy to create discoverable documents. Faced with this burgeoning multiplication of producible documents, I asked my crack IT team for help. Their response was, “Yep, that’s a problem.” But then they thought of something. We talked to a copying company who said for a small sum they could “de-dup” my production. I told them to hold on, that I had a reputation as an ethical lawyer, and I was not about to dup anybody, but then they explained. What they meant was they could take an email chain that had been birthed as a single
communication, multiplied many times due to repeated typing fingers, and then doubled again when re-copied from each person’s in and sent boxes, which had resulted in approximately 1,000 documents, being de-duped down to one. I said, can you really do that? They said, well, not really.
They explained that if there was the slightest change in an email chain, i.e., a new person added, there could be no de-duping. So there was that, and then there were a bunch of other hesitations and caveats about how effective the process was really going to be. Still, it seemed worth a try. The cost of de-duping would more than pay for itself in the fact that neither I, nor anybody else in my office, would have to look at the multiple duplicate documents before production. I issued the de-duping order and left for the day.
When I enthusiastically entered my office Monday morning, after someone other than me had spent a long de-duping weekend, I was optimistic that the mountain of documents had been shriveled into a single manila file. Well, it didn’t work out. The document production had been reduced significantly but it was still voluminous. What had started out as a 5,000-page document production had burgeoned to 25,000 pages after e-mails — and those were the documents from my side. The Defendants produced their own documents, many of which were no doubt the same. I’m thinking we need somebody to de-dup the whole case, because we are now up to 75,000 documents and climbing. (My faithful secretary is ready to lose her mind and is significantly mourning the loss of trees as we print out key documents.)
All this may sound funny, actually it’s not. The computer age has brought us the gift of quicker document retrieval, but more document creation. Lawyers have to look at, and study, this ever increasing volume of documents – often many professionals, on each side. This is a significant problem because as documents multiply, the hourly rate for lawyers continues to climb and it becomes less and less affordable to use our conflict resolution system. One answer to this dilemma appears to be agreements or court orders which limit the number of people whose emails the parties will seek to discover, or the use of technology to weed out documents through search terms rather than human review. However, for attorneys cognizant of the fact that sometimes one key document can change a case and, ever aware of the spontaneity and/or lack of thought that can go into an email, solutions which may miss documents can be frightening. This trend may represent one more step towards the robot-ruled world that the old sci-fi films used to warn us about (those old movies were better, by the way).
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Under Analysis is a nationally syndicated column. Mark Levison is a member of the law firm Lashly & Baer. You can reach the Levison Group in care of this paper or by email at comments@levisongroup.com.
© 2013 Under Analysis L.L.C.
