September 23, 2005
Document Games by Trial Lawyers: The Boies Version
It has always been one of the black eyes of corporate trial lawyers -- document production. One side demands every document that could possibly be relevant, the other side provides a flood of meaningless paper (the document dump), retains critical documents with a litany of routine objections, and refuses to answer any clarifying questions (interrogatories) with any precision. Force opponents to complain to a judge (who hate these hearings) and on the eve of the hearing slip a few more documents across the table to obscure the argument. Moreover, at the hearings develop a blizzard of document complaints about the other side as well -- flood the judge with detailed, finger/pointing, he said/she said objections. Even if a judge takes the time to sort out the wheat from the chaff (and many do not) and orders production, comply with a few more but not all the documents and force opponents back to court to ask for sanctions. If an opponent is as dogged as a spawning salmon and the judge get its, pay the small fine. Now there is a new twist. The lawyer incorporates document "management" company and, as lead lawyer, hires his own family-run company to help do the dirty and bills the client for his company's efforts. Why not profit from the production document dump as well as do it??? One such lawyer happens is David Boise, one the best known lawyers in the country (and a frequent lecturer on ethics I might add). The document production systems need a serious overhaul to restrain obstruction by lawyers; it we are serious about discovery we need higher, different penalties (e.g., suspension of lawyers from practice) and specialized document magistrates that stay on top of document problems are all in order. Lawyers have not distinguished ourselves.
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