e-Discovery Team

The sequel to Judge Paul Grimm’s landmark Victor Stanley case was issued September 9, 2010, and is one for the record books. Victor Stanley v. Creative Pipe, 2010 WL 3530097 (D. MD. Sept. 9, 2010). Victor Stanley II has morphed from a search case, to a sanctions thriller. It records one of legal history’s strongest examples of lawyers behaving badly in e-discovery, so bad, in fact, that Judge Grimm ordered the spoliating party to jail. The defendant, Mark T. Pappas, can only avoid two years imprisonment if he immediately pays all of the plaintiff’s fees and costs award. I am sure that those fees, yet to be determined, will be enormous.

As I will explain at the end of this essay, this strong sanction order is important to the future of our system of justice, a unique common law system where discovery is lawyer driven and trust-based. Should a decision by one of our country’s most prominent jurists be reversed, could a move to the civil law, inquisitorial, judge-based system be far behind? I hope not. This decision needs to be affirmed.

This 103-page opinion includes a 12-page chart summarizing spoliation sanctions law by Circuits. Judge Paul Grimm has, once again, considerably advanced the jurisprudence of discovery, this time in sanctions, a key area of law today. One filled with conflicts and inconsistencies. He emphasizes the need for proportionality and reasonability in all things, including preservation. Thank you for that Judge Grimm. Too many lawyers and judges do not understand the need to resize efforts and expense to fit the case. Reasonability is a sliding scaling following the metrics of Rule 26(b)(2)(C). Perfection is an ideal, not a requirement, and one mistake in e-discovery is never per se negligence, much less a sufficient grounds for sanctions. A deep dive into the facts is always necessary. Victor Stanley II is a deep dive into both ugly facts and mixed law.

The Gang That Couldn’t Spoliate Straight

The facts of this case are so bizarre that Judge Grimm invoked the title of the comedic novel by Jimmy Breslin called The Gang That Couldn’t Shoot Straight:

Pappas’s zeal considerably exceeded his destructive skill and his judgment in selecting confederates to assist in his efforts to destroy ESI without detection. While Pappas succeeded in destroying a considerable amount of ESI, Plaintiff was able to document this fact and ascertain the relevance of many deleted files. At the end of the day, this is the case of the “gang that couldn’t spoliate straight.”

The complex facts of fraud and spoliation in Victor Stanley are egregious and manifold.  (Recall in Victor Stanley I the allegation of the crime fraud exception to attorney-client privilege?) There is a long laundry list of court nose-thumbing and nonchalant lying by defendants in this case. As far as we know, however, there is no proof that lions were used to extort anyone. Recall the famous scene in the movie  of The Gang That Couldn’t Shoot Straight shown above. Unlike Breslin’s book, the facts here are sad and anger provoking, not comedic. Indeed, Judge Grimm found this case to be:

… the single most egregious example of spoliation that I have encountered in any case that I have handled or in any case described in the legion of spoliation cases I have read in nearly fourteen years on the bench.

I wish I was surprised and unfamiliar with the many cons and lies described in this opinion, but I am not. Unfortunately, as Craig Ball also points out, this kind of misconduct is not as uncommon as most judges think. After thirty years in the trenches of litigation, I am jaded. I have seen or suspected it all before. After a few decades, it gets to you. Perhaps that is what drives me and many other experienced attorneys to write and talk about this so much.

As Jimmy Breslin (shown left) says: “Rage is the only quality which has kept me, or anybody I have ever studied, writing columns for newspapers.”

No, the facts of Victor Stanley II are not that unusual. What is really unusual here is that Mr. Pappas could not shoot straight. What is really unusual here is that the spoiliator was caught and his fraud exposed.

This seems to be an unexpected fringe benefit of the electronic age and e-discovery. The fraudsters make more mistakes these days since the technology is so complicated and usually way beyond their kin. In the old days of paper evidence it was easier for the con to succeed.

I may be jaded, but I am also greatly heartened that a bad-guy was caught and is now on his way to appropriate punishment. Here is how Judge Grimm explains the complexity of the web of fraud that he, and plaintiff’s counsel, were brave, smart and strong enough to take the time to sort out.

Regrettably, the events underlying the pending motions are convoluted and cannot be summarized succinctly. They must be set forth in considerable detail, inasmuch as they spanned several years, involved multiple actors and a succession of defense attorneys, and are memorialized by hundreds of Court filings and affidavits, as well as countless hours of deposition and hearing testimony. Charting them has consumed, collectively, hundreds of hours of my time and my law clerk’s time.

I urge you to read the full opinion and closely scrutinize “Pappas’s dogged but unsuccessful attempts to prevent the discovery of ESI evidence against him … and Pappas’s successful, permanent deletions of countless ESI.” As Jimmy Breslin said: “Complainant received immediate lacerations of the credibility.” Even though a summary is not feasible, Judge Grimm does provide an overview of the things that the defendants Mark T. Pappas and his company, Creative Pipe, were found to have done:

All in all, in addition to the attempted deletions that caused delay but no loss of evidence, there were eight discrete preservation failures: (1) Pappas’s failure to implement a litigation hold; (2) Pappas’s deletions of ESI soon after VSI filed suit; (3) Pappas’s failure to preserve his external hard drive after Plaintiff demanded preservation of ESI; (4) Pappas’s failure to preserve files and emails after Plaintiff demanded their preservation; (5) Pappas’s deletion of ESI after the Court issued its first preservation order; (6) Pappas’s continued deletion of ESI and use of programs to permanently remove files after the Court admonished the parties of their duty to preserve evidence and issued its second preservation order; (7) Pappas’s failure to preserve ESI when he replaced the CPI server; and (8) Pappas’s further use of programs to permanently delete ESI after the Court issued numerous production orders.

Id. at pgs. 5-8.

Pappas’ Many Attempts To Hide-The-Ball

I cannot summarize and simplify the facts in this hundred-plus page opinion anymore than Judge Grimm can. But I can provide a few quotes to provide a taste of some of the many scams uncovered:

• “Pappas claimed to have moved the emails to a deleted items folder for “storage purposes” … it is hard to imagine that anyone would claim, with a straight face, that he deleted emails in order to “store” them in a deleted items folder.  The more credible inference to be drawn is that Pappas wanted to destroy any evidence that would belie his sworn statements.”
• “Moreover, at least two of Pappas’s successful larger deletions of ESI occurred on the eve of scheduled discovery regarding the contents of Pappas’s work computer. First, the Court scheduled a discovery hearing for February 1, 2007, and the afternoon before, Pappas deleted 9,234 files from his work computer, a password-protected laptop. … Second, an imaging of Pappas’s work computer was scheduled for the week of February 21, 2007. Pappas deleted almost 4,000 files on February 16 and 17, 2007, and someone ran Microsoft Window’s Disk Defragmenter program immediately afterward, rendering the files unrecoverable.”
• “The record is devoid of any evidence that Defendants considered, let alone implemented, a litigation hold after Plaintiff filed suit or after the Court issued preservation orders…”
• “CPI named one of its product lines the “Fuvista” line. Pappas admitted during discovery that “Fuvista” stood for “Fuck you Victor Stanley,” … demonstrating that Pappas’s wit transcended sophomoric pranks such as logging into VSI’s web site as “Fred Bass” and extended to inventing insulting acronyms to name his competing products. When disclosed, the meaning of this acronym removes any doubt about his motive and intent. No doubt Pappas regarded this as hilarious at the time. It is less likely that he still does.”
• “According to Defendants, Pappas did not “intentionally” dispose of the EHD “to keep the files on it from being subject to discovery.” … This argument is absurd. Pappas purchased the EHD; attached it to his work computer immediately before suit was filed; used it for months, including after suit was filed and Plaintiff had demanded preservation of ESI; transferred 62,071 files to it, which included many files with names that render their relevance readily apparent; and kept its existence secret even from his own ESI litigation expert. He testified that he returned the EHD in November 2006—without having someone back up its contents—to “Bob from Office Max” because he was “frustrated” by its automatic backup features that “would flash messages and interrupt [his] work.” … Defendants failed to produce any documentation corroborating Pappas’s testimony that the EHD was returned to Office Max, such as an affidavit from “Bob,” a receipt from Office Max, or documents showing the crediting of the purchase price of the EHD back to CPI after it was returned. Yet Pappas expects the Court to accept his doe-eyed explanation at face value, rather than the untruth that it manifestly is. Even if true, this is of little moment, as Defendants concede that the EHD “should not have been disposed of since it was in existence after the lawsuit had been filed.” … Moreover, the EHDand its contents never were made available for forensic examination during discovery and remain unavailable today. It does not require Napoleonic insight to recognize with a casual glance at the names of the unavailable files that what was lost was relevant to Plaintiff’s claims, and the absence of such a large quantity of clearly relevant files was prejudicial.”
• “On December 22, 2006, I entered an order staying all discovery (except for an existing order that the parties meet and confer regarding discovery disputes, which had begun to multiply) until after a hearing scheduled for January 18, 2007. (ECF No. 41.) That order cautioned: “[B]oth parties are reminded of their substantive duty to preserve evidence, including electronic evidence, that is relevant to the case.”21 … Pappas later admitted that he received that order the following day and that he understood what it meant. …Subsequent forensic examination of Defendants’ computers showed that the CPI System Registry reflected 9,282 user-initiated deletions of files from Pappas’s work computer between my December 22, 2006 order and the February 1, 2007 discovery hearing. … Given the file names, it is evident that the files were relevant and would have supported Plaintiff’s case, and I conclude that Defendants breached their duty to preserve potentially relevant ESI.”
• “Despite the discussion of preservation obligations during the discovery hearing and conference and in the February 1, 2007 Order, in the weeks that followed, as described in further detail below, a user logged into Pappas’s work computer as Pappas, ran a Disk Cleanup program on it, deleted files, accessed the Registry Editor, and ran the system’s Disk Defragmenter program on the computer.”
• “Regardless of the “spin” Defendants attempt to put on it, following a series of ESI preservation and production orders by the Court, Defendants allowed their computer consultant to run programs that eliminated temporary internet files. It cannot be ignored that this occurred in a case the essence of which involves surreptitious entry to Plaintiff’s website for the purposes of downloading design drawings that Defendants then pirated and misrepresented to be their own in order to compete with Plaintiff. It is no coincidence that the deleted files included those showing the internet site that Defendants had accessed. I am persuaded that these files were relevant, and that their loss caused prejudice to Plaintiff.”

Judge Paul Grimm on Sanctions Law

Judge Paul Grimm, who in real life is the anthesis of grim, begins his statement of the law with a high-level summary of his findings at pages 34-35:

Plaintiff has proved grave misconduct that was undertaken for the purpose of thwarting Plaintiff’s ability to prove its case and for the express purpose of hamstringing this Court’s ability to effect a just, speedy, and inexpensive resolution of a serious commercial tort. The prejudice to Plaintiff is clear and has been described in each of the sections above. It is helpful, but of little comfort, that Defendants themselves agree with my assessment that the lost or destroyed ESI was relevant, and its absence as evidence prejudicial to Plaintiff.

As you can see, at this point Pappas has gone through several sets of attorneys. Those now defending him on the final motion for sanctions that is here ruled upon have distanced themselves from prior counsel and are admitting many of the allegations. They try to defend Pappas in part by putting some of the blame solely on the defendants’ prior attorneys, a tactic that served Qualcomm well. They also try to pin some of the blame on the defendants’ computer experts. Judge Grimm disposes of these arguments based on agency. Pappas is responsible for the actions of his agents, namely his attorneys and hired experts. See pages 35-36 and footnote 23. Judge Grimm goes on to say that:

Because Defendants’ previous attorneys and DeRouen, Defendants’ computer consultant, are not parties to this action, any claims against them as individuals, rather than agents of Defendants, would have to be brought as a separate action.

Judge Grimm takes pains to point out that his opinion should not be misconstrued as demanding perfection in preservation and collection efforts. He well understands that only reasonable efforts are required by the law, and that reasonability is determined by proportionality. He cites to the latest articles on proportionality in footnotes 24 and 25 to emphasize this point. Honest mistakes can always be made in spite of reasonable efforts and Judge Grimm does not intend for those to be sanctionable. Judge Grimm is well aware of the concerns of the legal profession about runaway e-discovery costs and the imposition of excessive, unrealistic burdens on parties in connection with ESI preservation and collection. Victor Stanley II is not a case of alleged negligence. It is a case on intentional, bad faith spoliation. As Judge Grimm explains:

Nothing in this memorandum should add to this collective anxiety. Defendants do not dispute that spoliation took place, relevant evidence was lost, and Plaintiff was prejudiced accordingly; that Defendants’ misconduct was sufficiently egregious to warrant sanctions; and that the sanctions warranted are serious. Nor is this a case where Defendants have claimed or demonstrated that what they did was reasonable and involved effort and expense that were proportionate to what is at stake in the litigation.

Judge Grimm not only understands the collective anxiety of the profession, he tries to alleviate some of our concerns by providing a better explanation of the law of sanctions that goes beyond an application of the law of his Circuit:

In such an instance, the Court could be excused for simply acknowledging Defendants’ concessions and applying the applicable law of the Fourth Circuit without considering the broader legal context in which preservation/spoliation issues are playing out in litigation across the country. While justified, such a narrow analysis would be of little use to lawyers and their clients who are forced, on a daily basis, to make important decisions in their cases regarding preservation/spoliation issues, and for whom a more expansive examination of the broader issue might be of some assistance. Accordingly, I will attempt to synthesize not only the law of this District and Circuit, but also to put it within the context of the state of the law in other circuits as well. I hope that this analysis will provide counsel with an analytical framework that may enable them to resolve preservation/spoliation issues with a greater level of comfort that their actions will not expose them to disproportionate costs or unpredictable outcomes of spoliation motions. 27

Footnote 27 references the previously mentioned 12-page chart summarizing the law of each jurisdiction.

Judge Grimm begins by considering the court’s authority to impose spoliation sanctions under both its “inherent powers” and Rule 37. Judge Grimm issues sanction in Victor Stanley II under authority of Rule 37(b)(2) because numerous discovery orders were disobeyed. Defendants argued that Judge Grimm did not have authority to sanction under this rule because the orders disobeyed required preservation of evidence, not production of documents. An interesting defense, which Judge Grimm rejects at pages 43-44:

On its face, Rule 37(b)(2) permits sanctions for disobedience of “an order to provide or permit discovery, … The rule does not define what is meant by “provide or permit” discovery, but the advisory committee’s notes to Rule 37 reflect that subsection (b) was amended in 1970 to broaden the ability of a court to sanction for a violation of discovery. … it cannot seriously be questioned that a court order to preserve information, including ESI, has as its core purpose the objective of ensuring that the ESI can be “provided” during discovery, and is intended to “permit” that discovery. It would clearly violate the purpose of Rule 37(b) if a court were unable to sanction a party for violating the court’s order to preserve evidence simply because that order did not also order the production of the evidence. As will be discussed below, the duty to preserve relevant evidence is a common law duty, not a rule-based duty. It therefore is no surprise that Rule 37(b)(2) does not specifically refer to court orders to “preserve” evidence. The reference to Rule 26(f), however, which does specifically refer to preservation obligations, makes it clear that court orders issued to enforce discovery plans agreed to by the parties, which include preservation obligations, would be enforceable by Rule 37(b)(2) sanctions. If so, then it is equally compelling that a preservation order issued by the court sua sponte, and designed to govern the discovery process by ensuring that the evidence to be preserved, if within the scope of discoverable information, may be provided in response to an appropriate discovery request, also is an order to “permit discovery.” To reach a contrary conclusion would be to exalt form over substance.

Judge Grimm goes on to consider whether there was sufficient proof under the law of sanction worthy spoliation.  This requires that he first determine whether there was a duty to preserve the evidence destroyed, and whether the duty was violated. Judge Grimm well understands that “absent some countervailing factor, there is no general duty to preserve documents, things, or information, whether electronically stored or otherwise.” In fact, he cites to his own article for this well-established, but often forgotten principle: Paul W. Grimm, Michael D. Berman, Conor R. Crowley, Leslie Wharton, Proportionality in the Post- Hoc Analysis of Pre-Litigation Preservation Decisions, 37 U. BALT. L. REV. 381, 388 (2008).

Judge Grimm recognizes that the determination of the trigger time and extent of preservation efforts are tied to the particular facts of a case. He understands the importance of proportionality in preservation and cites to Rimkus and other authority for this key point:

Proper analysis requires the Court to determine reasonableness under the circumstances— “reasonable and good faith efforts to retain information that may be relevant to pending or threatened litigation.” THE SEDONA CONFERENCE, THE SEDONA PRINCIPLES: BEST PRACTICES RECOMMENDATIONS & PRINCIPLES FOR ADDRESSING ELECTRONIC DOCUMENT PRODUCTION ii (2d ed. 2007), available at http://www.thesedonaconference.org/content/miscFiles/ (follow link); see Jones, 2010 WL 2106640, at *5. It “is neither absolute, nor intended to cripple organizations.” 50 Grimm, 37 U. BALT. L. REV. at 385. Thus, “[w]hether preservation or discovery conduct is acceptable in a case depends on what is reasonable, and that in turn depends on whether what was done—or not done—was proportional to that case and consistent with clearly established applicable standards.” Rimkus, 688 F. Supp. 2d at 613 (emphasis in Rimkus); see Legal Holds, supra, at 3 (“In determining the scope of information that should be preserved, the nature of the issues raised in the matter, experience in similar circumstances and the amount in controversy are factors that may be considered.”). Put another way, “the scope of preservation should somehow be proportional to the amount in controversy and the costs and burdens of preservation.” Grimm, 37 U. BALT. L. REV. at 405.

Although, with few exceptions, such as the recent and highly instructive Rimkus decision, 32 courts have tended to overlook the importance of proportionality in determining whether a party has complied with its duty to preserve evidence in a particular case, this should not be the case because Fed. R. Civ. P. 26(b)(2)(C) cautions that all permissible discovery must be measured against the yardstick of proportionality. See Procter & Gamble Co. v. Haugen, 427 F.3d 727, 739 n.8 (10th Cir. 2005) (requiring district court to consider Rule 26(b)(2)(C)(iii) before ordering spoliation sanctions to ensure against “‘the burden or expense of the proposed discovery outweigh[ing] its likely benefit’”) (quoting Rule). Moreover, the permissible scope of discovery as set forth in Rule 26(b) includes a proportionality component of sorts with respect to discovery of ESI, because Rule 26(b)(2)(B) permits a party to refuse to produce ESI if it is not reasonably accessible without undue burden and expense. Similarly, Rule 26(g)(1)(B)(iii) requires all parties seeking discovery to certify that the request is “neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, the amount in controversy, and the importance of the issues at stake in the action.” Thus, assessment of reasonableness and proportionality should be at the forefront of all inquiries into whether a party has fulfilled its duty to preserve relevant evidence. Jones, 2010 WL 2106640, at *6-7 (“[R]easonableness is the key to determining whether or not a party breached its duty to preserve evidence.”).

These are welcome words of proportionality to those of us in the litigation trenches. We struggle daily with non-cooperative opposing counsel. They see e-discovery as a method of extortion, not a search for truth, despite all of their protestations to the contrary when in front of a judge. If a party or their counsel do not recognize proportionality, they are likely misusing e-discovery as a weapon. All aspects of e-discovery, all nine-steps of the EDRM, must be analyzed and understood in the context of proportionality, not just preservation. The efforts required for reasonability are inherently tied to the to evaluation of the risks and value of a case.

Not surprisingly, under the extreme facts of Victor Stanley II, there is little trouble finding a duty and breach, despite considerations of proportionality and reasonableness of efforts. As Judge Grimm explains at page 62:

Proportionality and reasonableness are not at issue because Defendants have never alleged that it would have been an undue burden for them to preserve the ESI they destroyed. Neither is this a case where a hapless party took objectively reasonable steps to preserve ESI, but it nonetheless was destroyed or lost.

Under these facts the only issue is what sanctions are appropriate. For this determination Judge Grimm looks to the “culpability of the state of mind” of the spoliator, here Pappas. The difference in the Circuits on this scienter issue is discussed. Judge Grimm points out that the failure to issue a written hold may be negligent, but is not per se gross negligence in most courts, including his own, in marked contrast to Judge Scheindlin’s holding in Pension Committee on this point. Id. at 64-65. Judge Grimm finds bad faith by Pappas in Victor Stanley II:

In sum, Defendants took repeated, deliberate measures to prevent the discovery of relevant ESI, clearly acting in bad faith, and in affidavits, depositions, and in open court, Pappas nonchalantly lied about what he had done.

Next he considers the relevance of the lost evidence and the resulting prejudice, and notes inconsistent standards in this area of the law of sanctions, as in all others. Here relevance and prejudice were established, and eventually admitted. So Judge Grimm’s next step is to determine the severity of the sanctions he should impose. There is an enormous range and here are the factors that a court should consider:

Thus, the range of available sanctions serve both normative—designed to punish culpable conduct and deter it in others—and compensatory—designed to put the party adversely affected by the spoliation in a position that is as close to what it would have been in had the spoliation not occurred—functions. Because, as noted above, the duty to preserve relevant evidence is owed to the court, it is also appropriate for a court to consider whether the sanctions it imposes will “prevent abuses of the judicial system” and “promote the efficient administration of justice.” Jones, 2010 WL 2106640, at *5. The court must “impose the least harsh sanction that can provide an adequate remedy.” Pension Comm., 685 F. Supp. 2d at 469; see Rimkus, 688 F. Supp. 2d at 618.

It is at this stage of analysis that many a judge get’s lost, or more directly put – wimps out. I don’t think they understand the impact this has on the Bar. But not here, not with Judge Grimm.

Defendants’ willful misconduct has had a considerable adverse impact on the Court’s pretrial schedule, imposed substantial burden on two judges of this Court and their staffs, and Pappas has essentially thumbed his nose at the Court’s efforts to oversee a pretrial process that would facilitate a fair and timely resolution of this case on its merits. Nonetheless, in fashioning spoliation sanctions, Courts must strive to issue orders that generate light, rather than heat, and without ignoring the magnitude of willful misconduct and prejudice, must fashion remedies that strike the appropriate balance between those that are normative and those that are compensatory.

Although the plaintiff, Victor Stanley, did not receive all of the sanctions it requested, it did get a lot. A default judgment was entered on the key copyright infringement count, including an injunction. But most importantly, Judge Grimm awarded attorney fees and costs and found Pappas to be in civil contempt of court for violating its orders.

For such clearly contemptuous behavior, a very serious sanction is required. Accordingly, I order that Pappas’s acts of spoliation be treated as contempt of this court, and that as a sanction, he be imprisoned for a period not to exceed two years, unless and until he pays to Plaintiff the attorney’s fees and costs that will be awarded after Plaintiff has submitted an itemized accounting of the attorney’s fees and costs associated not only with filing this motion, but also with respect to all efforts expended throughout this case to demonstrate the nature and effect of Pappas’s spoliation. These costs and fees likely will amount to a significant figure, and that will properly vindicate this Court’s ability to enforce its discovery orders. The commencement of Pappas’s confinement will be determined at the conclusion of the proceedings to quantify the amount of attorney’s fees and costs.

Without the threat of jail time, Pappas’s future conduct would be predicted by his past, and Plaintiff will receive a paper judgment that does not enable it to recover its considerable out-of-pocket losses caused by Pappas’s spoliation.

Sanctions Must Be Strong Enough Deter Fraud and Promote Trust

We need more judges like Paul Grimm who are willing to impose severe sanctions, even imprisonment, when faced with severe misconduct. That, and education, are the only way to discourage similar behavior by other parties. All too often these sanction cases end with a whimper, not a bang (think Qualcomm). As a result, many litigants and their attorneys are not getting the message that hide-the-ball is both wrong and irresponsibly risky. They are not pushed into cooperation by fear of punishment. There is not much downside for cheating, much less nose thumbing and not-cooperating, and so they do not change. Reminds me of Breslin’s most famous quote: “When you stop drinking, you have to deal with this marvelous personality that started you drinking in the first place.”

The system is slanted, and justice is denied, whenever one party gets away with hiding truth. Discovery is based on trust between attorneys and the parties. Trust that the other side will obey the rules and turn over evidence fairly requested, even when to do so will harm or even destroy their case. When this trust is violated, and the rules are flagrantly and intentionally disobeyed, the only just result is severe sanctions.

I am not talking about honest mistakes and I am not talking about trying to put your best face on a picture. Of course attorneys must try to present the evidence in the light most favorable to their client. They must persuade by emphasizing the good facts and minimizing and explaining the bad. But never by destroying or hiding those bad facts. We are not paid to rewrite history, just style it up a bit. We have a system of justice based on application of the law to the facts, the true facts, not a fantasy. If one side is permitted to hide the true facts, to only present the facts they want the judge and adversary to see, then justice is subverted. Discovery based on honest participation and compliance with the rules must be enforced for the truth to come out and justice to be done.

Conclusion

The United States legal system is based on trust-based discovery; discovery which is run by the litigants, and their attorneys. It stands in sharp contrast with the legal systems of the rest of the world, especially Europe, where discovery is inquisitorial and is run by the courts and their judges.

If the Bench and Bar continue to tolerate and wink at cheating and nonchalant lying about discovery, then some day, in order to restore confidence in our legal system, we may have to abandon party-driven discovery entirely. We may have to join the rest of the world where judges take a far more active role and the rights of litigants and their attorneys are significantly diminished. Will we have ten-thousand more judges like Paul Grimm needed to make it work? I doubt it.

Let’s not go there. Let’s keep the power and procedures of discovery in the hands of attorneys, not judges. Let’s clean up our act now. Let’s do discovery right. Let’s cooperate and be fully honest.

Judges – please help us to get there. When crooked litigants are caught gaming the system, punish them. Not just with angry words, but with action. We attorneys need help from the bench to maintain our trust based discovery system. Victor Stanley II is an important step in the right direction.