All litigators have been there before: to disclose or not to disclose. What if a document contains information that could possibly be used against your client? Documents certainly have a way of retaining damaging information for a case. In today’s “gotcha” political environment, it appears the major trend in legal discovery is to find documents
of the opposing party that would hurt or even tarnish the arguments put forth by that party. Instead of relying in good faith on the opposing party’s proposed facts our legal system has become enmeshed in a virtual “he-said/she-said” tug-of-war battle, where often the only way out of arduous memorandum-writing is the production of the actual documents that could resolve the factual discrepancy.
An interesting new trend in legal discovery has been an approach called “definitional dissonance”: Denying knowledge of the existence of the specific document, the type of document, or of all documents in general. Often, the quickest way out of a potentially disruptive and harmful discovery request is a simple refusal to acknowledge that you are even aware what a “document” is. When presented with a discovery request, one tactic is to reply with a polite message indicating the misunderstanding, perhaps “Please clarify what you are referring to,” or “I am confused as to what you are looking for,” or even, “Please describe to us what the meaning of ‘evidence’ is.” This could be an easy way to end the cat-fighting and resolve the matter in your favor.
Another fascinating strategy gaining traction is called “synonymizing” the request. When you receive a request for a “file,” send a rasp or nail-file, or when asked for a “record,” send a vinyl copy of Jackson Browne’s 1977 classic Running On Empty that an intern at the firm purchased from a bin at a yard sale. If you choose a record of musical merit, your opponent might even be pleased with the surprise collector’s item, so much so as to forget to re-submit the original request. A good fallback that is appropriate for any request is to send DVD copies of critically acclaimed shows on the Discovery Channel. If the DVDs are opened and watched, you can claim to the judge that your opponent has waived the right to return the materials and thus is no longer entitled to the information that was initially sought.
All in all, the discovery process can be a avalanche of hassle (or, as litigators frequently call it, a “hasslelanche”) that can quickly cover your entire firm under three feet of cold, icy paperwork. It’s always good policy to set up base camp to weather the storm. Wrap yourself in definitional dissonance and synonymizing to avoid getting rained on!