Other than ethics, what's to prevent a doc review attorney from flagging a "hot doc" as "not relevant"?

[Anonymous User]

Bored from doc review and had a question.

How would the other party know if you didn't disclose a relevant, but detrimental document? Is there something in the software that lets them know what has been left out? Since you don't normally produce irrelevant documents, is there a real risk that attorneys/paralegals may miss, or intentionally omit to produce, a document that is potentially dispositive to the case? All I see from my end is thousands of documents with coding tags to be marked privileged, confidential, not relevant etc... I'm wondering what everything looks like from a broader perspective.

[polareagle]

Bored from doc review and had a question.

How would the other party know if you didn't disclose a relevant, but detrimental document? Is there something in the software that lets them know what has been left out? Since you don't normally produce irrelevant documents, is there a real risk that attorneys/paralegals may miss, or intentionally omit to produce, a document that is potentially dispositive to the case? All I see from my end is thousands of documents with coding tags to be marked privileged, confidential, not relevant etc... I'm wondering what everything looks like from a broader perspective.

They wouldn't necessarily know, but that doesn't mean it works out for you because you have no idea how the case will develop over the coming years. I have been in trial against firms that did a shitty job producing documents (whether through negligence or malice, I don't know). If you don't produce it, you can't use it at trial. And the document that seems detrimental now could seem much less so in 5 years. We definitely won one trial in large part because of the other side's shady tactics during discovery (not listing relevant witnesses on their initial disclosures, failing to turn over documents, etc.). Trials are rare, of course, but judges don't forgive and forget those sorts of discovery screw-ups. Not listing a witness on an initial disclosure ended up being a multi-million dollar mistake.

[cavalier1138]

In addition to what has already been said, there's a good chance the other side will notice if it's a significant document. Those things rarely exist in isolation, and if you produce 30 emails referring to "Presentation X," someone is going to start wondering why Presentation X wasn't produced.

So yeah, you might be able to not turn over a one-off significant email in an initial production without anyone noticing, but odds are that you'll eventually pay for it. As polareagle mentioned, judges are not forgiving about these kinds of mistakes.