Think carefully before hitting that send button. The cost of having independent attorneys review 2500 documents (mostly internal emails) that Merck had claimed subject to the attorney-client privilege was $400,000. That $160/email expense is, of course, just the cost of the independent review, and does not include the cost of attorneys litigating whether the documents should be produced to the other side. Judge Eldon Fallon ruled some documents were privileged, and others must be produced; both sides claim victory in reporting by Ashby Jones at the WSJ Law Blog.
The explosion in document creation has caused a litigation explosion in document discovery. This has had multiple effects: first, it encourages the settlement of meritless claims, because of the expense of defending such claims when document discovery can take place. This in turn encourages the bringing of meritless claims, as their extortion value goes up if plaintiffs can force defendants to spend millions of dollars defending themselves.
Separately, the explosion in document discovery has caused a leap in the demand for attorneys, and, in my opinion, is a large part of the recent increase in law-firm associate salaries. And applications to top law schools would drop precipitously if incoming law students had any idea what percentage of high-paid associates’ time is taken up on document discovery disputes over questions of attorney-client privilege.
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Liberal discovery rules often are justified as a way to “level the playing field” between individual plaintiffs and corporate defendants. Ironically, the rules encourage more and longer litigation, which often delays any possibility of “justice” for years and years.
I see this dynamic all the time in employment discrimination cases that I defend (in private practice and now in government). Discovery extends much too long, with little marginal benefit. Finding a “smoking gun” is extremely rare. Couple this with the amount of time it takes for judges to rule on motions, and the typical case lasts at least 2-3 years (in federal court — longer in state court).
How does this benefit plaintiffs? Yes, some defendants agree to settlements in order to avoid the burden and expense of litigation, but many if not most don’t. So that means plaintiffs have to wait a long, long time if they hope to recover against a determined defendant. On average, a streamlined litigation process, including narrower discovery rules, would benefit everyone.
In the NY and DC area, the document review is done largely by temporary attorneys. Before I got a full-time job, I spent many of my first months out of law school staring at corporate e-mails for ten to twelve hours a day.
Since I could read about a hundred documents an hour, and I charged roughly a fourth of what this per-email price is, there’s a big markup somewhere in the pipeline.
Unfortunately some witnesses will refuse to tell the truth, or even admit the facts are disputable, unless confronted with their own e-mail contradicting the story they otherwise would tell in court.
It is time to move E-mail to the same privilege as phone conversations – no discovery until a notice of action.
Interesting. Assuming a fine legal mind is charging $500 an hour, then they must only be reading three emails per hour (with 2.4 minutes for potty break). I would always though that reading speed and comprehension would be something selected *for* in law school.
And don’t even try to argue that the lawyers don’t all make $500 an hour. If he’s, say, billing $150 an hour, that means he/she can’t quite finish a single email in an hour. For those who are bad at math, this is WORSE than the first case.
Sounds like someone needs to be spanked for billing fraud. I think I saw that in a movie once …
Evaluating whether a contested document is within the attorney-client privilege requires more than 36 seconds of time and more than a temporary attorney.