5 Responses to WRECK-IT RALPH: Things in e-discovery that I want to destroy!

  1. craigball says:

    Dear Ralph:

    Most of the time I heartily agree with you. I’m often the first commentator on your posts because, whatever I’m doing when you publish, I stop and read your post (that may be why I have only two children). But, now-and-then, I have to be the rude guest who comes to your house and talks about politics and religion.

    While I share your ambition that we restore trust with opposing counsel, as matters currently stand, distrust is healthy and wise. The missing element in your trust equation is one I know we agree upon: competence.

    I can’t trust trust my opponent to do something if he or she doesn’t know how to do it.

    I can’t trust my opponent to preserve potentially responsive ESI if my opponent doesn’t understand the sources or forms of same.

    I can’t trust my opponent to search if they use tools and methods that will not reach the responsive ESI.

    I can’t trust my opponent when their routine practice with respect to ESI is to convert it so as to strip away responsive content and pretend it was never there.

    I can’t trust my opponent to produce responsive material if they employ methods of review that are proven to miss *most* of the responsive material.

    I can’t trust my opponent when he or she not only doesn’t test searches, he or she doesn’t know *why* it’s important to test them and has no clue *how* to test them.

    I can’t trust my opponent when I know that he or she is being misled by his or her client and does nothing to find out what’s true and what’s not.

    Yes, once upon a time I could trust an opponent with respect to paper because I was reasonably confident my opponent knew where to find paper documents and knew how to read them. I have no such confidence with most opponents when it comes to ESI. The arrogance about ignorance is so deeply ingrained, so coupled with a sense of “we always do it this way, so f**k off” entitlement, that I’d be committing malpractice to trust my opponents as you suggest. Not now. Not for some time to come.

    I don’t count my change at the register or check my bill at a restaurant because I think someone’s trying to cheat me. I do it because I know many people can’t add. At this point, I can’t trust my colleagues to make change when it comes to e-discovery, and those who take your advice, Wreck-It, and trust without verifying should do their clients a favor and find another line of work until we have sufficient justification to trust that our colleagues have done their homework and know how to deal with ESI.

    As President Reagan used to say, Doveryai, No Proveryai. Otherwise, say do svidaniya to your fitness to practice.

    • Joshua Rubin says:

      A few related observations:

      We have a duty to cooperate where possible and also to represent our clients zealously.

      Standards for determining what paper is responsive, and for then finding it, have it evolved over time. There’s been much less time, and there’s less consensus, with ESI. Because the gray area is so much larger for ESI than for paper, there’s a sound ethical and respectable basis for opposing counsel to take more “aggressive” positions without being either incompetent or dishonest.

      I start out trusting opposing counsel’s honesty. I base this approach on my experience, and the findings of Robert Axelrod on game theory, as explained in “The Evolution of Cooperation.” (In a nutshell, the best strategy where there is a continuing relationship is usually to trust until you have reason not to, and then respond proportionately to bring the other side back in line.)

      I can usually quickly tell pretty quickly whether opposing counsel is competent to deal with ESI. Of course, if they aren’t, they’re being inherently dishonest, as well as breaching their duties to their clients, my clients, and the court.

  2. [...] WRECK-IT RALPH: Things in e-discovery that I want to destroy! [...]

  3. [...] WRECK-IT RALPH: Things in e-discovery that I want to destroy! [...]

  4. […] times before. Losey, R., Five Reasons to Outsource Litigation Support (LTN, Nov. 2, 2012); WRECK-IT RALPH: Things in e-discovery that I want to destroy!; Going “All Out” for Predictive Coding and Vendor Cost Savings. Data hosting is a completely […]

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