Yea, that's a surprising move. The "we have nothing to hide, we'll give you everything" approach to discovery can end up with exactly what happened, if the other side likes to use war of attrition and pressure tactics: deposition questions, and related lines of inquiry, that have no relevance to the issues. They're engaged in solely to wear out and dishearten the producing party. You'd think her counsel would have known this.
How hard would it have been to run a few keyword searches and get some paralegals or junior associates to filter out the irrelevant material? There are discovery firms that do this as their entire business. Or file a motion or two?
And I say that with no strong opinions about either side of the case. It just looks like a bad litigation move.
Edit: It also creates the impression that her counsel either didn't take the time to sort through her evidence thoroughly enough, and/or that offloading a massive dump of unfiltered emails would inconvenience the other side's counsel enough to give her leverage. Neither seem like a winning move. The first makes her side look unprepared, and the second makes her side look like it was playing games of its own.
> How hard would it have been to run a few keyword searches and get some paralegals or junior associates to filter out the irrelevant material?
It's actually trickier than it seems, and the penalties for under-inclusion can be harsh.
Even if you make a good faith/reasonable effor, if you accidentally don't include everything that you're supposed to, you can be sanctioned. So if you do a keyword search for a word that seems innocuous/personal (so that you can exclude those emails) and it turns out you accidentally excluded some emails you were supposed to include (because you didn't have doc reviewers actually read every email that the search returned), you can get in trouble.
And having doc reviewers go through hundreds of thousands of emails could cost $50k or more. How much would depend on how complex the discovery request is.
If they just said "send us emails where you talk about John Doerr", that's easy. If they say "send us emails where you talk about JD, the firm, your mental health, or sexism in SV", that becomes much more difficult/expensive.
Under the circumstances, it is not appropriate to fault her lawyers for the decision not to do doc review in order to cut down on the emails provided in discovery. Remember that the client here is herself a lawyer (Harvard Law School, Cravath), so she bears the responsibility for a major decision like this. This may have been a bad strategic decision on her part, or it may have been too expensive to go any other way. But her lawyers are not at fault.
Note: I am a former SV lawyer, but I do not know any of the lawyers who represented her (or even what firm it was).
I get what you're saying, but in my experience, the risk of sanctions for a good faith production with a few things overlooked is minimal to none. If the other side notices and brings it up (assuming nothing else preventing production), you just give it to them. Problem solved. No judge is going to impose sanctions for essentially doing what the rules of discovery tell you to do.
In Pao's case, it comes across as allowing the other side all kinds of opportunities to go fishing for irrelevant tangents, embarrassing material, overly-personal material, etc., with an almost passive endorsement of that tactic. She wrote that some of this stuff included attorney-client communications! That's terrible. And one of them was a therapy record? Doesn't that sound like a HIPAA issue?
You'd think that effective counsel would try to define the scope of the evidence and the boundaries of the issues on the table every chance they could. A well-thought out document production is one of the cheapest and easiest ways of doing that.
Sort by "From" and thread conversations. Far easier than by date.
As an executive, Pao just deciding that this was acceptable, either at the behest of her counsel, or with their approval, demonstrates "poor risk management behavior" that I wouldn't want in any company executive.
How hard would it have been to run a few keyword searches and get some paralegals or junior associates to filter out the irrelevant material? There are discovery firms that do this as their entire business. Or file a motion or two?
And I say that with no strong opinions about either side of the case. It just looks like a bad litigation move.
Edit: It also creates the impression that her counsel either didn't take the time to sort through her evidence thoroughly enough, and/or that offloading a massive dump of unfiltered emails would inconvenience the other side's counsel enough to give her leverage. Neither seem like a winning move. The first makes her side look unprepared, and the second makes her side look like it was playing games of its own.