Textbook Case of Discovery Abuse Exposes a Fallacious “Pig in a Poke” Defense

Defense counsel in Atlanta tried the old "pig in a poke" defense recently. Senior Judge J. Owen Forrester figured it was a ruse, just like the medieval derivation of the phrase, and sanctioned defendants. Kipperman v. Onex Corp., 2009 WL 1473708 (N.D.Ga., May 27, 2009). Judge Forrester called it a "textbook case of discovery abuse" and imposed sanctions of over One Million Dollars. The new case is all written up in this week's e-Discovery Team Blog.

So what does "pig in a poke" mean anyway? It is a confidence trick originating in the Late Middle Ages when meat was scarce, but not rats and cats.  According to Wikipedia, whom I believe is correct in this instance, "the scheme entailed the sale of a "suckling pig" in a "poke" (bag). The wriggling bag would actually contain a cat — not particularly prized as a source of meat — that was sold to the victim in an unopened bag." The idiom is commonly used today to refer to a risky purchase without inspecting the item beforehand. Typically it suggests that you would be a fool to make such a purchase and so should not do it. A related phrase is to "let the cat out of the bag," meaning 'to reveal that which is secret.'

So what does this have to do with e-discovery? Defense counsel in Kipperman argued that there was no way to know if any email of value existed on backup tapes, so it would be a mistake to spend the large sums of money needed to look. He suggested that there probably were no emails of value on these tapes. The judge later decided the attorneys knew all along, or at least should have known, that the tapes were in fact filled with cats, I mean, smoking gun emails, and the argument was a ruse. Fun case, except for defendants of course, as I explain in the full write up.