There's a dispute. There are parties. There are third-parties. There are relevant non-parties. There's discovery. There's e-Discovery. There are requests for admissions. There are interrogatories. There are witnesses. There are depositions. There are responses and 'non-responses'. Rinse. Repeat. Fast-forward: The RFAs have been answered (or not), the Rogs have been addressed (or not), depositions are complete (or not), discovery is closing…and your client is telling you (or you suspect) that your adversary, et al, has not disclosed all of the relevant information.
I'm not talking about the usual gamesmanship (and I shudder to refer to it as such) that occurs in heavy litigation. There's always a certain 'cat & mouse' feel to the process, for want of a better term. I'm also not talking about the more obvious example; when the client says something like, "This email from Tom? I'm sure this isn't the entire thread. Some of the conversation is missing." That is something the client knows. I'm talking about something that can't be taught, but is more instinctual.
Sometimes, things just don't add up. The evidence is telling you that you're not getting the whole story. Maybe you caught a tiny phrase in a depo that contradicted something you thought you'd seen in a document. Maybe a witness referred to something in the wrong tense, which suggests to you that an incident occurred earlier or later than what was originally claimed. Maybe you just look at the overall litigation puzzle and a piece is missing. Maybe – and here's where it gets really tricky – something just doesn't feel right. Now what!?!?!?
Remember when I said, "Know what you don't know?"
The problem is, attorneys are not allowed to go on 'fishing expeditions'. A suspicion that evidence has been withheld isn't a reasonable basis to support a demand for more evidence. So, what do you do? Well, for starters, you can ask yourself if there are any other independent sources available (keeping in mind a subpoena may be required) where you might search. After all, you may find the answer through the same documents you received as part of the litigation process. Why? Because perhaps what didn't feel right was that the documents you received were, 1) too new, too old or the wrong version, 2) altered in some way, 3) out of order or have pages added or missing, etc.
You'd be amazed what a simple internet search turns up…
Remember; what you discover independently may be the smoking-gun that forms the reasonable basis to go back at a party.
Sanctions, anyone? How do you think people are caught?
You've seen a lot of discussion about electronic documents in native format? Well, this is one – among plenty of other reasons – why you would want to receive them that way. However, while the metadata will hopefully tell you what you need to know, it might not. You may have a document that matches up properly with its metadata, but how is this going to guide you if you've been given the 'wrong' document – or no document at all?
I could go on and on at length, but the problem is, if you're in this position, you don't necessarily know what you're looking for; you just know something isn't right. So, you have to trust your instincts and act on them – subject to the buy-in and resources of your client, of course. Following your instincts isn't necessarily a cheap undertaking.
Ronald Reagan said, "Trust, but verify." Bill Maher said, "Be more cynical." I agree with both. After all, you'll tell me the truth, but you'll probably disappoint me…