Question for attorneys...

[ecstatic]

How can you tell if a party in a case has turned over ALL records, text messages, emails, etc.? I know part of it is that if one party turns in everything and those parts are missing from the other person's records, that's a huge red flag. But what about when there is no other person to compare to?

[Effete Snob]

1. Think about that question

“What if there is no other person…?”

What sort of record would that be? Personal notes they kept to themselves?

A conversation has two ends or it is not a conversation. Plus, electronic communications have service providers. It is routine to subpoena records from service providers. So, for example, if your cell phone provider says you sent four texts to Bob on Sunday, and you produce only three, there’s a problem.

Then, there are questions of how did someone know the things they know.

You get all of Jim’s communications with Dave from some time period. You are then going to depose Jim. Jim says that he went to the bowling alley on Saturday afternoon to pick up Dave. Okay, when did Jim find out Dave was going to be at the bowling alley and wanted Jim to pick him up?

Communications occur within the context of the relationships and the actions of people involved. If Jim goes to the bowling alley at 3pm to pick up Dave, he has to have a reason to know that Jim was there and in need of a ride.

Like Back to the Future, it is hard to edit the pst without leaving gaps that have ripple effects.

Yes, people fail to comply with discovery obligations all of the time. And, yes, a lot of them get nailed for it. Do some get away with it? Probably. But it is very risky and the consequences can be steep.

[ecstatic]

2. Thanks, that makes sense.

I just can't imagine turning over all my text messages!

[Effete Snob]

3. No one cares about your sexting and nude selfies

Once in a while, you learn something weird about someone you don’t care about and won’t remember six months from now.

My doctor is a little weird and doesn’t like to do prostate exams. She practices medicine with her husband, so once a year he sticks his finger in my asshole. To him, I’m just another asshole.

I get excited when I find something that is useful
To whatever is going on. Other stuff is a waste of time.

[ecstatic]

4. lol! ummm......!

The problem is, it's forever documented in court records for anyone to read, correct?

[hardluck]

6. Not unless they are used as an exhibit

Discovery documents are produced to the other side but do not end up in the court record unless they are used as an exhibit. So in the example above, no because the are irrelevant.

In my cases though they do end up as exhibits because I defend sexual harassment cases so you’ll find”dick pics” and other embarrassing pics/emails in the record.

[Effete Snob]

7. What hardluck said

On commercial litigation, there is usually a protective order around a lot of the material.

You’ll notice in the Dominion documents, the public versions of the filings include a lot of redactions.

[hardluck]

5. Sometimes though the waste of time is fun

As a young associate I was involved in litigation related to a certain fast food company’s sweepstakes. As part of discovery, we received over 100 banker’s boxes of games and sweepstakes for that company and others stretching back to the 70s. It was an amazing blast from the past - even found an ABBA album!