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Alextronic Discovery
An Electronic Discovery Blog covering News, Articles
and Thoughts for the Legal and Corporate Community Author: Alexander H. Lubarsky, LL.M., Esq. - alubarsky@enterusa.com - Tel. (415) 533-4166 OR 800-375-4222 THIS BLAWG IS NOT AFFILIATED WITH THE WEB SITES WWW.DISCOVERYRESOURCES.ORG OR WWW.DISCOVERYRESOURCES.COM


Saturday, December 20, 2003

Wouldn't wanna be like you...  

Wouldn't wanna be like you...

"Make the other guy's life so miserable, that they'll just be happy to settle with you."

This may or may not be the golden advice given to the family that is taking on Michael Jackson but it was the learnings of Milton Weissberg.

My dad and Milton were law partners, starting their practice some thirty-five years ago. Milton was considered a legal tycoon. My dad would point out the fiercest litigator at the courthouse and tell me to watch their palms when Milt entered the courtroom. They would start to shine with perspiration. No one wanted to go up against Milt.

"Discovery requests are the best thing since chewing gum," Milt would belt out as he asked a defendant pharmacy or for that matter corner sandwich shop to copy and send every shred of paper they had ever owned (including the yellowed with age prescription pads and the more yellowed with mustard sandwich wrappers).

Milt's tactics worked for his day. The ethics behind such tactics were not really called into question. This was how results happened.

Things are different today.

Many processes and strategies translated seamlessly from the paper world to the electronic world. Overbroad discovery requests did not.

The courts have come down with a vengeance on the litigator that give Milt's tactics a whirl today. If you think that the financial institution will buckle under the pressure associated with a request to produce every scrap of electronic transaction data, then think again.

Recently, a California lawyer named Iryna Kwasny thought she could "Miltonize" Defendant into a perty lookin' settlement for her client Alwyn Farey-Jones.

Drafting a highly Miltonesque discovery request, Iryna asked Defendant Integrated Capital Associates, Inc. to promptly "produce every e-mail message ever sent or received."

This language was more burdensome than the Special Forces proved to be to Sadam and was broader than the plains of Kansas.

The Defendant was not amused and the Court even less so.

I would hate to be Iryna Kwasny.

After stubbornly refusing to retreat from her position and failing to edit the request to something a bit more narrow tailored, the Court simply had enough. It dealt the death knell to Miltonologists everywhere.... the court did not only refuse to compel the Defendant to comply... but they fined Iryna a whopping nine-thousand bucks. A lot of money to most people but it'll get you a pretzel at San Francisco's Fisherman's Wharf if you're lucky.

Be that as it may, the sanction clearly showed that there is a new Sheriff in town and the Miltons are starting to run for the border.

Don't find yourself put through the Milton mill. Be extremely cognizant of your ethical Don't get caught in the Milton mill. Always remain cognizant of your ethical and professional duty to narrowly tailor discovery requests so that they can bring about a realistic response from opposing counsel.

If you would like some cites to cases in your jurisdiction where the courts have held e-discovery requests to be unduly burdensome and overbroad, shoot off a message to Alextronic and he'll see what he can do.

In the meantime, you can forget your worries about having to hang on to your fifth grade essay about your Summer vacation, because some Milt may come after it someday.

posted by Alexander | 5:08 PM

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