E-Discovery Gamers: Join Me In Stopping Them

http://ow.ly/blb5A

An article by Ralph Losey, Esq. posted on the e-Discovery Team® Blog.

This article discusses litigation involving eDiscovery requests for production of electronically stored information, and offers warnings for counsel and client against attempts to abuse the discovery process.

The article states that some attorneys view litigation as a game, to be won at all costs, and that those attorneys are willing to manipulate the eDiscovery process by trying to play "hide the ball.".  The article states, "Non-gamers ask for and look at documents to try to find out what really happened. But not gamers. They view facts as malleable. E-discovery for them is just a way to find enough documents to construct a story. They only care about whether a story will likely persuade a judge or jury to rule in their client’s favor. Not whether it is true.

Gamers view requests for discovery as potentially dangerous to their constructs. For that reason, they will play endless, elaborate games to try to hide the facts. For them hide-the-ball is just a game, one that might have economic consequences if they are caught, but they rarely are."

The article examines some of the pitfalls associated with the litigation process as a whole.  The author states, "When a gamer does sometimes realize that the other side is hamstrung by rules, and is not a gamer like them, they tend to think that they are up against a naive patsy and play even harder. Nothing gets them off their game.

They are delighted when their adversary is a moralist. They are more than happy to take advantage of that. A true gamer does not care about rules of any kind. Rules are meant to be broken, if you can gert away with it."

The article goes on to discuss game theory in general, and how it applies to litigation.  The article further states, "The role of game theory in e-discovery was considered in an article by Maura Grossman and Gordon Cormack, Some Thoughts On Incentives, Rules, and Ethics Concerning the Use of Search Technology in E-Discovery (Vol. 12, Sedona Conference Journal, 89-104) (2011) (hereinafter “Some Thoughts“). This article has been a sleeper, but well worth reading for the game theory discussion alone, although this is just one part of their interesting article on ethics and search."  Mr. Losey then goes on to further discuss the referenced article, and also states that ethics and good faith are essential for a proper litigation strategy.

Mr. Losey examines what the article explains is the "Prisoner's Dilemna", as discussed in the context of the article he cites.  Ultimately, Mr. Losey concludes, "Lawyers who ignore these values and employ game tactics are doomed to fail. If their opposition is also a gamer, then both will both lie and cheat each other. The clients on both sides will lose. If their opposition is not a gamer, they will also lose as soon as the judge who controls the proceeding catches on to their gamesmanship. Once they are exposed, they are done. You can easily stop unethical gamers by exposing them."