One of the themes of Stupid Lawyer Tricks is that, in civil litigation, there is one set of rules for plaintiffs and another for defendants. Instead of the FRCP – Federal Rules of Civil Procedure — which are supposed to govern what all parties do in federal court, there are really a PRCP and DRCP.
One of my earliest experiences with this was when a federal magistrate gave a defendant a complete Expert Witness Do-Over*. My opponent designated an expert witness to testify to the astonishing** proposition that it was not racial harassment when my client — an African-American welder — found a naked black Ken doll at his work station with a noose around its neck. It turned out that the only expert the defendant could find to support its position was — oops! — under indictment for fraud. Ordinarily once the deadline to designate experts has passed, you gotta dance with the expert who brung you. FRCP 26(a)(2). In this case, however, the defendant filed a motion asking for a do-over and got it. The defendant was permitted to find and designate a new — non-fraudulent — expert, long after the deadline. DRCP 26(a)(2)(wtf).
My most recent experience is with a defendant who is represented by a 1,200-lawyer nationwide law firm. We’ve been litigating this class action for 8 years, 6 of them against this firm. I’m convinced that — big and fancy and expensive as it is — this firm’s technology is limited to Compaqs running DOS or perhaps trained horses scratching out numbers in their stalls.
Almost two years ago, we provided a list of 900-some-odd class members who had contacted us along with some information about each one. We provided this list in a searchable pdf document of around 300 pages. The deadline to take depositions in the case was last Friday. Last Tuesday the defendant demanded ten class member depositions. Now generally, depositions require more notice than three days, especially when you want ten of them. FRCP 30(b)(1). But these guys argued to the Court that they had had no way to find out who these folks were over the past two years, and the court agreed, on the grounds they were “concealed” in “voluminous discovery.” DRCP 30(b)(ygtbfkm)
Let’s take a quick look at how concealed these folks really were. If you had wanted to find the name of a specific witness or some other piece of information in the document we gave them, this is what you would have needed to do: hit Control-F, then type the search term into Acrobat’s handy search term box, then hit return. This would have taken you to the first occurrence of that term in the document. Now here’s where it gets a bit more complicated: if you had wanted to see the next occurrence of the term, you would have had to hit either the return key or the little right-pointing arrow next to the search term box. Rinse. Repeat.
But honestly, you do not have to have an IT staff versed in advanced pdf-searching technology to find ten people in a 300-page document over the course of 20 months. Any of the following would also have worked:
- Have a paralegal read the document. At the rate of half a page per day, you’d still have time left over.
- Enter all of the data into an Access database and run a query. This is what we did when the defendants included a 921*** page Word document with their motion for summary judgment. Our opposition was due three weeks later, so our crack team of paralegals (possibly, in this case, meaning paralegals on crack) entered 921 pages of data into our database in the course of about one week.
- Train a dog to bark at the name or information you are seeking, then show the dog each page and note the pages at which he barks.****
And all this complaining about how — help! help! — difficult it is to search a 300-page pdf comes from a defendant who produced many electronic documents so incompetently that the logos and other graphics embedded in the documents floated free and appeared as separate documents. So they have produced hundreds of thousands***** of pages of documents, many quite helpful but many that look like this:
So it’s been a frustrating past few days, but ultimately there are several silver linings. We’ll be headed to San Francisco as the Giants start the Series. And, well, the case is already very positive for us; ten more witnesses supporting our position can only strengthen that.
* The defendant didn’t call it that, but in my opposition brief, I sure as hell did.
** On the other hand, the judge did call the defendant’s argument “astonishing:” “[The defendant] contends that . . . there is no evidence that the incident was racially motivated. [The defendant] may make that astonishing argument to a jury. In light of the undisputed fact that a nude Black doll-as opposed to a doll of some other race-was found hanging from a noose in the locker of an African-American man, it would not require a jury to make a herculean leap of logic to conclude that the noose and doll incident was racially motivated.” Gooden v. Timpte Inc., 2000 WL 34507333, at *11 (D. Colo. 2000).
*** I usually just invent the numbers on this blog, but this one is, coincidentally, accurate.
**** This would not work with Chinook or Saguaro, who would tell you to just use a fucking database so they could get back to obsessing about tennis balls (Saguaro) or napping (Chinook).
***** Again, surprisingly, not an invention. 687,846 pages to be exact.