A document is not the “thing” that a juror must remember. A document may contain multiple facts or it could require multiple documents to establish a single fact. The juror cares about the concepts that make up the story of the case and the facts that prove or disprove each step in the story. The juror’s cognitive ability limits the number of disparate facts that you can realistically use to make your case regardless of how many documents they are distributed across.

Say that you need to prove that Sally deserved to be fired for submitting fraudulent expense reports. A single bad expense report does not prove or even suggest fraud. It could too easily be an innocent error. A pattern of expense reports showing the same behavior over time, however, locks in the one concept that Sally intentionally committed the fraud. The juror will not remember the details of 25 individual expense reports but will remember the pattern that “Sally is a cheat.” The same case might need to establish the concept that “the company was the good guy.” A single harsh email undercuts but does not disprove that concept. Even supervisors have a bad day. A pattern of emails over time locks in the concept that the manager had it in for poor Sally.

At the other end of the spectrum, even a single document may be indigestible if it covers more disparate concepts that the juror can absorb. Attempting to understand that one over-large document will inevitably drive other content out of his/her span of attention. The corrolary to your argument is that even single documents may have to be exerpted wisely.

I agree strongly with your argument that it doesn’t take thousands of documents to make your point and that it is counter-productive even to try. I agree completely with your point that Discovery should start with the ends in mind and that it should be subordinate to the goal of justice, not an end to itself. You just can’t jump from Miller’s research on cognitive concepts all the way to the word “documents”.

(As a side note, judges are statistically no more capable than the rest of the population in Miller’s 7 ± 2 analysis. The judge’s sole advantage is that through context and training, he/she may be able to aggregate components into a single, larger concept which can then be managed as a cognitive unit. Specialists in every field demonstrate this competence. Notably, it is context-specific. An engineer who can manage the thousands of data elements necessary to design a bridge is no more capable with competing legal concepts than the average judge would be with the calculus of engineering design. It is identical to the short-hand you do when you memorize phone numbers by blocking the area code as a single cognitive unit.)

My apologies if this comes across as a pedantic. You have an excellent and important point to this post. I don’t want that critical point to get lost or get taken out of context because of a misunderstanding of Miller’s research.