Jeffrey L. Fazio1 and Michael Pecht2
1Micheletti LLP, Oakland, CA, USA
2CALCE, University of Maryland, College Park, USA
For more information about this article and related research, please contact Prof. Michael Pecht.
Abstract:
This article addresses a fundamental pathology: the exploitation of discovery incompleteness by producing parties who possess informational advantages that requesting parties lack the capability to detect or remedy. Strategic incompleteness is a function of informational advantage, not litigation posture: any producing party—plaintiff, defendant, or third-party respondent—with superior knowledge of the document universe can exploit the information asymmetry inherent in discovery, undermining settlement negotiations, distorting case valuations, and extracting substantial litigation advantage from procedural compliance that masks substantive evasion. This article proposes a methodology for surfacing structural anomalies consistent with such incompleteness, including thread integrity verification, attachment consistency analysis, custodian activity pattern modeling, and temporal discontinuity detection. The methodology is non-dispositive by design, in that intent cannot be reliably ascertained from a document corpus by any analytical method. Accordingly, the methodology produces flags for attorney investigation rather than adjudicative findings. The Federal Rules’ procedural meet-and-confer obligations, Rule 30(b)(6) depositions, motions to compel, and judicial findings are the mechanisms through which the factual questions raised by surfaced anomalies are ultimately resolved. Feasibility is demonstrated on the publicly available EDRM Enron v2 production, on which structural detectors recovered deliberately introduced omissions with zero false positives and with independent cross-model reproduction.
This article is available for free online here.