• August 11, 2017

Drawing of Anger, made possible by Creative Commons, http://goo.gl/pYeceX

We’ve covered the issue of fiery florid rhetoric and the distaste that courts generally have for it (“The Persuasive Force of Dispassionate Passion”).

The sequence of drafts of our own legal argument sometimes go like this:

Draft #1: In suggesting that XYZ case supports their position, opposing counsel and his nauseatingly deceitful client brazenly flout court rules, insult Your Honor’s intelligence, and, with staggering impudence, drag our justice system through the mud.

Draft #2: Opposing counsel and his less than honest client misrepresent the holding in XYZ case — a cynical (if obvious) effort to avoid their legal obligations.

Draft #3: Defendant’s (or Plaintiff’s) citation of XYZ Case is unpersuasive for these reasons….

Notice the subtle differences in tone in the three drafts? Unfortunately, we don’t always have time to edit out the over-the-top counter-productive drama from earlier drafts. We regret that when it happens.

Separately, we have also discussed “e-disgustery™” in previous posts to express our dislike of the excessive focus on “electronic discovery” in a lot of civil litigation.

These two themes often come together as they appear to have done in a pending FMLA lawsuit, Nekich v. Wisconsin Central (D. Minn.).

Civil litigators need to know that judges, in general, dislike both e-discovery disputes and hyperbolic outrage. Combine these two ingredients with great care (if at all).

We do not and cannot take a position as to whether there was intentional destruction of evidence in the Nekich lawsuit. We don’t have time (or subpoena power) to investigate. But, in Wisconsin Central’s defense, we will highlight that all of us, everyday, in our jobs and outside of our jobs, delete electronic data constantly.

We recognize that all lawyers and all businesses must be aware of the obligation of “litigation holds” — once a lawsuit has started (or is reasonably foreseeable), evidence preservation obligations must be communicated and followed. But, again, all of us, everyday, in our jobs and outside of our jobs, delete electronic data constantly. Equating deleting electronic data with “spoliation” may be technically correct. If so, lawyers must appreciate there is a huge difference between “spoliation” and “sanctionable spoliation.” Someone might consider the taking of an extra twizzle stick from a restaurant without permission on one’s way out as larceny. But many would consider that position to be idiotic.

In short, it is probably better advocacy to temper the drama in instances of suspected spoliation, maybe in particular in the e-discovery context.

What do we mean?

In argument to the Court, consider editing out words like “shockingly,” “incredibly,” “in defiance of all logic and common sense,” “wholly indefensible position,” “hard to take seriously,” and “manifestly inconsistent.”

As tempting as it is to harp on evidence having been “destroyed,” consider using the alternative (and more accurate) term, “deleted” (in the case of electronic data) or “discarded” (in the case of handwritten notes).

And, finally, think twice (or more than that) before accusing opposing counsel of unethical conduct or arguing that the lawyer on the other side “cannot keep [his] story straight.”

All that having been said, it seems possible that defendant Wisconsin Central’s lawyers (in-house or its outside counsel) opened themselves up to plaintiff’s counsel’s arguably over-zealous attack by not performing an early and comprehensive evidence collection and litigation hold. It is possible — maybe even probable — that defendants’ employees’ deletions were entirely innocent and benign, but the cost to the company may be high and probably could have been avoided.


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