e-Discovery Creates a Moral Dilemma

J0422326 Every once in a while, life throws you a curve-ball…

One of the things that surprised me when I was in law school was the graphic detail in many of the cases we studied.  To put it mildly, they don't mince words.  Everything is described specifically and deliberately, down to the smallest detail.  Honestly, it's not for the faint of heart.

When I clerked at the Los Angeles County District Attorney's Office during law school, I worked on one case for three years.  It involved the kidnapping and gang-rape of two women by some very unsavory characters.  How unsavory?  Well, the Defendant in my particular case was sentenced to something akin to 500 years in prison (whenever I tell the story, I always follow up with the quip, "Don't worry – he's up for parole in 325 years…")

My boss gave the case to me because I was much older than the other law clerks and they were having trouble dealing with the graphic testimony.  It was difficult for me as well, but I managed.

Now comes another element to e-Discovery that I hadn't considered.  As you know from my writing, I'm firmly concentrating in the area of corporate law.  You might say that criminal law is a hobby – but I don't think one can ever use that term when someone's liberty is at stake.  The fascinating thing about criminal law is the 'mens rea' (guilty mind) aspect.  How do you crack open somebody's mind and show what they were thinking?  Besides, with these cases, even if criminality is ever in question, we're talking 'white-collar' crime, here.  How bad could it be?

And then I was approached regarding a completely different kind of case…

…a child-porn case, to be exact.  On the defensive side.  Might even entail expert testimony.

The attorney emailed me the new Tecklenburg case (warning: link opens 28-page pdf) from Westlaw that is at issue.  When I saw the words "children & pornography" in the search results in the body of the email, I had a visceral reaction – as I think most of us would.  I didn't even want to discuss the case using email, lest some spam filter – or worse – detect those words in my correspondences.

And therein lies the dilemma.  Attorneys aren't obligated to take a particular case; and certainly consultants aren't, either.  But here, a fundamental principle of our Constitution is at stake – Defendant is innocent until proven guilty.

What would you do?

I'm still thinking…

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