There’s a saying in baseball, “If you’re not cheating, you’re not trying.” Any fan of the sport knows pitchers doctor balls, hitters cork bats and signs are stolen all the time. It’s an accepted part of the game.
However, our legal system is not a sport. It’s real life, where real people suffer real injuries at the hands of corporations and manufacturers who often knowingly place profit ahead of human safety.
When a lawsuit is filed, no plaintiff’s attorney expects the opposing counsel to just throw up their hands and say “You got us, we’re guilty.” Any trial is a series of battles between two legal teams.
In an effort to unearth key information before a trial, lawyers use the discovery process to request documents and gather evidence. Although the process is intended to aid the parties in uncovering the facts of a case, some defending attorneys are using new tactics that exploit a loophole in existing law regarding the discovery process to keep some facts from coming to light. This loophole centers on the plaintiff’s attorney’s request for relevant data used to build their case.
In the old days, before data was stored in digital form, plaintiff’s attorneys would request documents from the defendant’s attorneys during this phase. Those paper documents would be turned over, in a reasonable amount of time, for the plaintiff’s attorneys to examine and retrieve relevant information in building their case against the defendants.
Often the turned over data contains the critical evidence needed to ensure a guilty verdict or force a favorable settlement for the injured party. Today virtually everything is stored digitally, which gives the defendant’s counsel a powerful tool to “run out the clock” in hopes that the plaintiff’s attorneys eventually give up on their request.
When plaintiff’s attorneys request discovery, they put that request in a formal document called a Request for Production (RPF) that everyone agrees upon. This document contains specific instructions for how the plaintiff’s attorneys need to receive that data to load it into their e-discovery systems like Nuix, a commonly used system in our industry.
For the laymen, this is akin to asking for something in a widely used software program like Excel, Word or Quickbooks and getting back corrupt gibberish. If it’s an Excel file, share the original Excel file. Easy, right? And more than that, it’s just plain fair.
But this process has become like death by a thousand cuts and it has only one purpose: hiding important information to slow the discovery phase to a grinding halt to drive the plaintiff’s legal costs up so high that the plaintiff either abandons the case or incurs far higher attorney fees if they prevail. It’s very direct attempt to injure the plaintiff further.
As many plaintiffs who have already suffered a great deal of physical or financial pain learn when the discovery phase begins, the playing field is tilted far in the direction of the defendant’s counsel. Sadly, the umpires aren’t willing to toss anyone out of the game these days.
Much like baseball has toughened its stance on the use of performance enhancing drugs, if our legal system adopted a “three strikes and you’re out” position and penalized the opposing counsel for delivering corrupted files, we’d see defense counsel drop the games. The gridlock of discovery would end and it would be a true home run for the entire system.