Lawyers continue to become enmeshed in lengthy, adversarial discovery actions, believing them to be advocacy for their clients — a path that increasingly leads to standoffs that must be resolved by the court. As a result, plaintiffs frequently prevail in their efforts to portray recalcitrant defendants as guilty parties who attempt to hide misdeeds by refusing to provide relevant information, when in fact much of that information is innocuous and ultimately will be discovered.

An almost empty courtroom, except for counsel, the judge, the court reporter and two lone observers. There is a muffled clatter of handcuffs as prisoners — in a rare display — shuffle through the back of the courtroom on their way from holding cells to hearings. Except for a brief interlude of shouting in the hallway, which causes the judge to ask no one in particular whether he should “push the button,” there is no crowd of onlookers, no “Law and Order” moment — only the sparring of opposing counsel in a prediscovery preservation hearing.

It’s a scenario that has been repeated in courtrooms across the country. The hearing comes after weeks of expensive yet unsuccessful meetings between the parties regarding document preservation. The court had earlier ordered the parties to reach an agreement as to the scope and process of preservation, in the hope that seasoned and reasoned minds would prevail and everyone could get on with the business of the case. It was not to be.

“Liars and miscreants, who are trying to ‘hide the ball,’ ” claim the plaintiffs.

“Ignorant of our complex technology and preservation challenges,” retort the defendants.

“We have no idea what defendants have, so in the interest of justice they must preserve it all.”

“We can’t preserve it all because we’re too big, it’s too much data, and it would be hideously expensive and disruptive.”

What’s a judge to do? What this judge does is say to the defendants, “Counsel, I’m trying to help you with your clients by giving you a broad order you can take to them with the excuse that ‘the Court says we have to do it.’ ” In other words, giving counsel a “get-out-of-jail-free card” that could cost their client thousands of man-hours and hundreds of thousands of dollars.

Surprising? A casual observer would conclude that the court did not have enough information on which to base its decision, making it likely that a “preserve everything” order is waiting in the wings.

There is truth in counsel’s arguments. The plaintiffs and the court are often uneducated in the very real technical and financial challenges of data preservation in large companies. Yet, absent any disclosure by the defendants, the plaintiffs and the court have no way to narrow their preservation request to selected systems, persons or data types.

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