People Make Mistakes

“People make mistakes.” This simple three word sentence is how Chief Justice John Roberts begins his opinion in Conkright v. Frommert, No. 08-810 (Apr. 21, 2010). He goes on to add: "Even administrators of ERISA plans." Then he explains how complicated those plans can be. As a former ERISA litigator, I know he's right, as I have read far too many ERISA plans myself. But let me tell you, as an attorney who left ERISA to focus solely on e-Discovery in 2006, it's nothing compared to ESI plans.

More judges need to learn the lesson of complexity and the impossibility of perfection in all situations, not just ERISA plans. The lesson is especially needed in the area of electronic discovery, where mistakes are inevitable in large projects. Everyone involved in e-discovery needs to learn that a mistake is not automatically negligence. In the language of the law, res ipsa loquitur does not apply. A missing ESI is not equivalent to a barrel falling on your head! It depends on the facts and circumstances. It depends on how bad a mistake it was.

In my blog this week I explain how Judge Scheindlin in Manhattan gets it, and understands the impossibility of perfection, whereas a Magistrate Judge in West Virginia does not. The law demands reasonability, not perfection, and it is unfair to impose standards of perfection on litigants and their attorneys. The essay concludes with a series of questions on sampling. Go take a look and leave a comment on e-discovery sampling and the futile (but noble!) quest for perfection.