For a couple of centuries, we thought that American elections were precise: People voted; the government counted each vote; we knew which candidate received how many votes.
In the year 2000, we learned that elections are approximations. Votes are miscounted; chads dangle; we don’t in fact know precisely who received how many votes. Elections are a human process after all, and they can’t bear the weight when we insist on precision within the margin of error.
So, too, with litigation. I recently spoke to one of our outside litigators who had seemingly vanished from the face of the earth for several weeks. He told me that one of his clients had run into a now-typical e-discovery disaster: His client had overlooked some documents; a computer system had automatically deleted some other documents; when the client corrected the situation, it did so imperfectly; the judge (who came from a government background and had no experience in private civil litigation) was quick to spy “bad faith.” Why, this outside lawyer asked, don’t judges appreciate the difficulties presented by e-discovery?
My thesis (for today, anyway) is that e-discovery is like elections: It’s an approximation, and participants in litigation (parties, counsel, courts) should understand that it may not bear the weight when the judicial system insists on precision within the margin of error . . . .
E-discovery is a funny thing. When I was in private practice, my personal worldview changed as the tribulations of e-discovery worsened. My mental state evolved from “practicing law is a joy, and I do it reasonably well” to “I wonder if I can make it to retirement before some judge sanctions a client (or me personally) for some perceived e-discovery abuse.” I wasn’t cheating at e-discovery. Far from it — I was investing a huge amount of time and effort in trying to do it right. But the more closely you observed the process, the more imperfections you saw, and each imperfection was a chance for an opposing lawyer to convince a court that you or your client had acted in bad faith.
E-discovery isn’t alone in that regard. Think for a minute about piercing the corporate veil. I can’t name names here (because my employer is probably the insurance broker for some of the companies I would be identifying, and I can’t risk offending the clients), but I’m thinking about mass torts and both (1) foreign parent companies of American subsidiaries and (2) joint ventures created in part to isolate the parent venturers from liability. Conscientious corporate executives, advised by the world’s leading law firms, set up those corporate structures with an eye toward maintaining corporate separateness. Yet in mass tort after mass tort, a motivated plaintiffs’ bar, with the capacity to launch a wholesale attack on corporate separateness, has managed to pierce corporate veils. Why? Because these types of corporate structures are human endeavors. They’re approximations, and they can’t bear the weight when we insist on precision within the margin of error.
So, too, with decisions about whether documents are protected by the attorney-client privilege. Those privilege calls are frequently made by contract attorneys or young lawyers sitting at computers for weeks on end reviewing document after mind-numbing document. Some poor, sleep-deprived schlub sees a potentially privileged document, thinks about the privilege analysis for about 15 seconds, makes the privilege call, and then goes back to the next of the mind-numbing documents, condemned to doing this “tomorrow and tomorrow and tomorrow . . . to the last syllable of recorded time.”
Six months later, that bleary-eyed, half-hearted privilege call is the subject of analysis in two competing 15-page briefs, arguments by senior lawyers who have spent hours analyzing the nuances of the document, and a half-hour hearing in court. (Don’t beat up on me about meet-and-confers here. I’m slightly overstating things for illustrative purposes.) Right or wrong, the privilege call was only an approximation; it’s unlikely to bear the weight when we insist on precision within the margin of error.
Am I deploring human frailty? I don’t think so.
I think I’m urging folks to consider the meaning of the word “reasonableness” and to understand that parties and lawyers acting in completely good faith cannot do better than human imperfection permits. When courts ask human processes to bear weights they were never meant to support, courts should display some compassion.
Lawyers living their professional lives in good faith should not feel threatened that human frailty may imperil their reputations and careers.
Mark Herrmann is the Vice President and Chief Counsel – Litigation at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law (affiliate link) and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide. You can reach him by email at email@example.com.