Those of you sitting at your desk doing the point-and-click with one eye while reading this article with the other, complaining to yourself about the burdens of compiling and sorting documents stored in electronic systems or accordion files, are living the easy life.
If, on the other hand, you find yourself staring down a trash bag, face-to-face with the dark side of discovery, I have some news for you. The quality, size, or importance of a matter can not be determined by the way discovery documents are received. Trash bag discovery can involve high stakes. My first (and hopefully last) trash bag discovery case was in the context of a Chapter 7 financial-fraud-based bankruptcy. Creditors filed an involuntary petition for bankruptcy against an individual subsequently incarcerated for perpetrating a fraud in which he acquired tens of millions of dollars in bank loans squandered on an extravagant and unsustainable lifestyle. The trash bag materials led to over 100 bank, loan and credit card accounts, which pointed me towards strip clubs, multimillion-dollar homes, and everything in between. But, in the end, those materials provided and led to evidence supporting approximately 50 adversary proceedings filed by the trustee in connection with the bankruptcy case.
Let me lay out the situation for you. The government had pursued a criminal investigation against an individual for fraud and, in the process, confiscated and compiled evidence relating to the fraud. Despite begging, pleading, and formal requests, there was no way the FBI was going to allow the trustee access to evidence in its super-secret vaults. What remained was a large, black, trash bag full of what can only be described as “stuff:” materials pulled from the individual’s house thrown into a trash bag and delivered to my door; it was trash pickup day in reverse. This stuff (documents, rotting food, license plates, etc.) was my starting point for recovery of money and property for the estate of this incarcerated, and uncooperative, felon. We have all been dumped on at work, but this was ridiculous!
Tens of millions of dollars were at stake, so that opaque plastic barrier had to be full of wonderful and exciting stuff. It just had to be! And it was time to break the imaginary seal on that black elephant in my office. I had been tiptoeing around it for days, trying to convince myself that, if only I climbed inside, I would discover answers to all the questions of the universe. But the odor emanating from it was growing. Something was terribly wrong.
As I see it, if ever you find yourself in this envious situation, your options are as follows:
Option 1: Find someone more curious than you. The kind of person who just has to know what is behind the door that says “Do Not Enter.” The kind of person who goes into a dark basement after the power goes out to find out where the screaming is coming from. The kind of person who wonders what the origin of the phrase “beats me” is. Then mention this bag full of mystery. Treasure. Magic beans. Perhaps, if you’re lucky, you will walk into the office and find someone up to his/her elbows in discovery!
Option 2: If no super-curious person arrives to save you, grab some extra-long cleaning gloves, a garbage pail, and a few boxes. Move to a space where there is no internal window, just in case you feel the urge to squirm or run in circles crying “Ew, Ick, Yuck, *&!@!!” (There is no reason for your co-workers to be privy to that private moment.) Make sure you know where the nearest bathroom is, for you will be washing your hands a lot. Wear machine-washable clothes and keep antibacterial wipes nearby. Then hold your breath and dive in!
Hopefully you will find what you are looking for – in my case, financial documents – but don’t be shocked if you pull out a fast-food bag – still containing food. Being a good attorney, you toss the receipt in a box. A stroll into the hallway to toss the bag and food into some else’s garbage pail, a deep breath of fresher air, and back into the abyss you leap. Out comes a photo of a couple of guys smoking a joint. Into a box it goes. Mail galore, unopened, in everyone’s name under the sun. Cheap jewelry store and dinner receipts. Receipts for large quantities of expensive alcohol purchased by someone who doesn’t drink; that’s a little odd but you just pulled out a half-eaten sandwich, so odd is no longer noteworthy. License plates. Bank statements. Remote controls. Photo albums filled with pictures of cars. Loose business cards. A floppy disk. Yes, I said it, a floppy disk. When you are done, you are standing before a box full of large items, a box full of financial information, a box full of unopened mail, and a box full of likely irrelevant documents.
Now you are in a more familiar situation – staring at boxes of materials. But there are a couple of unique situations still facing you. The most noteworthy are how to handle unopened mail and whether to scan the large amount of material in the “likely irrelevant” category – which dwarfs everything else.
With regards to the unopened mail, if you are very lucky, your uncooperative client will authorize you to open it. More likely, you will need to research the scope of your authority to determine whether you stand in the client’s (in my case, the debtor’s) shoes for purposes of opening the mail.
With regards to the documents, the best thing to do is scan everything! And I mean every single scan-able item – even those you don’t expect to need. The last thing you want to do is touch those things again if you don’t have to, and you never know when you will discover aliases that turn “likely irrelevant” documents into “hot” documents. The large items that can not be scanned using current technology, like remote controls and random body parts, I placed in in-office storage. Though they looked like garbage, nothing was clear-cut in this case and attorneys get really testy over missing “evidence.”
In trash bag discovery, you have the luxury (according to your boss) or burden (closer to reality) of sifting through whatever evidence is available, even when it is comingled with a felon’s half-eaten sandwich that he discarded before fleeing the country. And, like me, I doubt you will be notified before trash delivery day that you have volunteered to become a garbage person (arguably a promotion, but still). After all, we pursue cases based on our areas of expertise. This being a case resulting from a massive fraud in which forged and fabricated documents were used to acquire tens of millions of dollars, it was right up my alley. And if needed in my next fraud case, I will dutifully dive into that abyss all over again.
So if you are regularly in the business of reviewing documents and have a clean workstation that involves clicking and coding with a mouse, be thankful you don’t have to worry about whether there is a live (or dead) mouse hiding in your discovery pile. If your biggest concern about food odors is a result of your neighbor’s smelly lunches, be thankful that you do not have to fish through his discarded leftovers in search of a key piece of evidence. But, if ever you do find yourself faced with the dark side of discovery, be vigilant … be organized … and sanitize often.
The contents of this article are intended for general informational purposes only and are not a substitute for legal counsel on any particular matter. It does not create any attorney/client relationship and is provided without warranty of any kind; the author and Sabel Legal plc disclaim any liability with respect to actions taken or refrained from being taken based on any or all contents of this article.