Under current civil procedure rules, parties, upon request, and with very few limits, must turn over all relevant documents to the opposing party. In the twenty-first century, that includes e-mail. Failure to turn over enough e-mail can cost a company a billion dollars in de facto sanctions (Dec. 17); turning over too much e-mail can waive the attorney-client privilege. Thus, unless parties can come to an agreement otherwise, teams of attorneys have to review every single e-mail, at great expense.
But in a typical tort action, with an individual plaintiff and one or more corporate defendants, there are asymmetric discovery burdens. An individual plaintiff has no incentive to agree with a corporate defendant to limit the corporate defendant’s burden, because (1) increasing the expense to the corporate defendant increases the likelihood of a nuisance settlement and (2) there’s no telling what stray e-mail might be able to be taken out of context to make a case to a jury unfamiliar with corporate communications that a defendant is worthy of punitive damages. (Numerous plaintiffs have successfully used decades-old back-of-the-napkin sloppy cost-benefit analyses by individual Ford and GM engineers to obtain millions of dollars of punitive damages for entirely different vehicle designs; an e-mail by Kay Anderson, a low-level Wyeth administrator who expressed frustration that her career was mired in dealing with complaints from what she called “fat people scared of a silly little lung problem” cost the company tens of millions, if not more, in fen-phen litigation when plaintiffs tarred the whole company with it.) This Wired story (via Bashman) about Enron e-mail made public provides a good reminder that any e-mail you send or receive at work is likely to end up in the hands of multiple lawyers one day.