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"I didn’t have time to go through all my emails to figure out which ones to give Kleiner, so during the discovery process we gave them practically everything, s

by abtinf 9y ago

"I didn’t have time to go through all my emails to figure out which ones to give Kleiner, so during the discovery process we gave them practically everything, some 700,000 emails — most of which we could have legally withheld. ... During depositions, they brought up everything from my nanny’s contract to an exercise I’d done in therapy where I listed resentments. Emails to friends, emails to my husband, emails to other family members, even emails to my lawyers." This is the single most incompetent legal behavior I've ever heard of. It shows such a profound lack of judgement that, by itself, it is enough to blacklist Pao and every lawyer advising her.

zebraflask 9y ago
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.
- FireBeyond 9y ago
  Pretty much exactly this. 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.
- gnicholas 9y ago
  > 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).
  - zebraflask 9y ago
    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.
tomschlick 9y ago
Yeah thats straight negligence by her legal team.
- arkades 9y ago
  "I didn't have time to go through..." She had to have done this without her attorneys. Big Firms bill by the hour: if you have the money to throw at them, they will find the man-hours to get the job done. "We don't have the time" just isn't a phrase they use.
  - tomschlick 9y ago
    Unless her team's strategy was to bury opposing council in documents hoping they wouldn't be able to search through them all in time.
    - arkades 9y ago
      That's only a move you pull on some tiny 2-man firm or an understaffed public defender. There's absolutely no reason at all to imagine that strategy was relevant to anyone KP would employ.
appleflaxen 9y ago
why would you blacklist the individual for having incompetent council?

by abtinf 9y ago

zebraflask 9y ago

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.

FireBeyond 9y ago
Pretty much exactly this. 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.
gnicholas 9y ago
> 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).
- zebraflask 9y ago
  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.

tomschlick 9y ago

Yeah thats straight negligence by her legal team.

arkades 9y ago
"I didn't have time to go through..." She had to have done this without her attorneys. Big Firms bill by the hour: if you have the money to throw at them, they will find the man-hours to get the job done. "We don't have the time" just isn't a phrase they use.
- tomschlick 9y ago
  Unless her team's strategy was to bury opposing council in documents hoping they wouldn't be able to search through them all in time.
  - arkades 9y ago
    That's only a move you pull on some tiny 2-man firm or an understaffed public defender. There's absolutely no reason at all to imagine that strategy was relevant to anyone KP would employ.

appleflaxen 9y ago

why would you blacklist the individual for having incompetent council?