What we think is not the same as what we know. I've been following the, "I own 50% of Facebook" lawsuit, but I admit, until I drilled down into the minutia, all I knew for a fact was, Plaintiff had refiled the case and included some damning email messages, and Defendant stated the emails are fake. Since the suit prominently features ESI, I wanted to better understand the issues.
No doubt about it, this is a true eDiscovery whodunit. I read a few articles and this is what I've learned. Ceglia claims he owns 50% (or more) of Facebook. Facebook claims he doesn't. That's right. That's all I know. I certainly read some fascinating excerpts, though.
However, I can point you to article after article that purports to know more, but doesn't. Don't get me wrong; unless one is writing a factual piece, there's no journalistic requirement to state only facts. I actually learned a lot of valuable factual information from the linked article (notwithstanding the reputation of the author). The problem – for me, anyway – is that law and speculation don't mix. And opinion? Expert opinion?
If this case goes to trial, Plaintiff will likely produce at least one expert who claims the ESI in question is genuine. Defendant will likely produce at least one expert who claims the ESI in question is fraudulent. Or perhaps experts on both sides can't conclude either way, due to the amount of time that has passed since the emails were exchanged. Who decides? Will it become a question of fact for the jury?
I sure would like to give you my answer, but the entire previous paragraph was pure speculation. As soon as I used the word, "If"…
