Litigators can fall victim to their own imaginations. It’s really built into the system when they’re encouraged to write their exhaustive wishlists during discovery and fill their own dreams with visions of terabytes of entirely incriminating evidence. When discovery inevitably fails to live up to those dreams, litigators have to make a decision between accepting disappointment or accusing the other side of wrongdoing for failing to fulfill those sugarplum visions. Litigators are basically Captain Hindsight, constantly shocked — SHOCKED — that no one understood years ago how important something would be to a case today.
Kirkland & Ellis chose the latter, writing counsel for a non-party — yes, a non-party — suggesting that he was withholding evidence because he hadn’t kept every single email they thought he might have from four years — yep, four years — earlier.
And then this guy’s lawyer went brutally funny on them….
To borrow from Lionel Hutz, I don’t use the word “hero” very often, but you — Robert Driscoll of Friedlander Misler — are the greatest hero in American history. When Kirkland & Ellis sent him a letter suggesting his client was derelict in his discovery obligations in the high-profile case of Shirley Sherrod v. Andrew Breitbart — Breitbart passed away, but the litigation lives on — Driscoll unleashed the hounds. If I could sum up the letter with just one of its sentences it’d be:
You appear to have confused the production being less voluminous than you had hoped or expected with the production being “incomplete.”
He opens with:
In response to my production to you of every document in my client’s possession, custody or control that is responsive to your subpoena, you chose to write an accusatory, inaccurate, and self-serving letter to me (dated July 3, 2014) instead of picking up the phone and having a conversation.
By the end of the letter, I’m betting Kirkland & Ellis wanted to have that phone call.
I wonder why they didn’t call:
Having worked at large law firms for the better part of 20 years during my career, I can only presume that your decision to write (on impressive Kirkland & Ellis stationery, no less, rather than an email) instead of calling, signals that you intend your letter to serve as “Exhibit A” to some discovery motion currently being crafted deep within the bowels of Kirkland & Ellis by associates eager to escape yet another soul-deadening document review for a brief, pro bono, taste of the adversarial process.
Should such a motion come to fruition, which I certainly hope is not the case, I have made the life of your paralegal or secretary a bit easier by labeling this letter “Exhibit B.” Please include it with your letter should you choose to file a motion.
Oh snap. In fairness, I wished everyone labeled their documents this way — you always know when a letter is an “Exhibit To Be,” so why not be honest? Driscoll proceeds to school the Kirkland lawyer, Alex Stege, on the realities of document preservation amongst non-parties (read: people who couldn’t care less).
Next, you note that parties to the lawsuit have produced documents, including communications with Mr. Adams, which Mr. Adams has not. You treat this as some sort of coup de grace, rather than a reflection of the utterly unremarkable fact that, 4 years after the fact, some people have retained more emails than others, and those who are defendants in a lawsuit have retained more than those who are not. You request that Mr. Adams produce the communications that you attached to your letter. I suppose we could do that now that we have them, but I think what you are really suggesting is that Mr. Adams had these emails all along and has been holding out on you. He doesn’t and he hasn’t. If you really want me to send the documents you sent me right back to you, let me know.
I’m not even going to explain the context of this next excerpt. Let’s just revel in it:
Not to put too fine a point on it, but so what?
Oh, how many times did I want to write that sentence in a legal document? At least a thousand. I got snarky from time to time, but I never felt free to get that snippy.
Is it time to make fun of summer programs? It’s time to make fun of summer programs.
Moreover, to the extent an attorney-client relationship exists, it would be the client, not the attorney, who has the ability to waive the privilege. Also, given that it is summer and you have thundering herds of summer associates roaming your halls trying to keep busy between baseball games and fancy lunches, you may want to research which state’s law you think would apply to the question of whether such a relationship existed, and whether it is the client’s reasonable subjective belief that he or she is having a communication covered by the privilege that controls the analysis or not. There is a nice variation among the states on this question, but I’d think California, D.C., and Virginia might be good places to start.
The final obnoxious hallmark of annoying litigators is the faux deadline. And Robert Driscoll slays that dragon too.
Finally, you asked that I address the issues you raised by July 9, 2014. I’m tempted to ask “or what?” given that I’m not sure my client or I are obligated to do anything for you other than comply with the subpoena, which, as explained above, has been accomplished. I also don’t generally like other lawyers making up deadlines for me, but given that I’ve responded or [sic] your deadline, I figured I get to make up deadlines for you as well. Please let me know if you disagree with anything in my letter by July 11, 2014.
So, Kirkland, can you be a doll and cc: email@example.com if you do have an objection today? Thx.
As it turns out, we have previously corresponded with Robert Driscoll here at ATL. But the message he sent us was much nicer than what he sent to Kirkland.
Driscoll’s full letter to K&E, which has much more fun, is on the next page. Check it out. Share with your friends….