There’s a legal question in U.S. v. Bourke—a case in the 2nd Circuit—that’s fascinating (and not just because it bridges my two worlds: anti-corruption and discovery). Like a lot of legal arguments in real-life cases, you have to peel back layers of legal detritus and lawyer bickering to get to it. And as in any real-life case, the facts are sometimes clear, sometimes murky and generally convoluted.
Let’s start with what we know for sure: Frederick Bourke was convicted after trial of participating in a scheme to bribe Azeri government officials relating to the possible privatization of Azerbaijan’s oil industry.
It doesn’t help the government’s case that the document was not only in its possession, but also was turned over to the defense. On the civil side, where discovery volumes can easily reach into the millions of documents, the act of production itself has implications. Bennett Borden, chair of the e-discovery and information governance section at Williams Mullen and vice chair of the American Bar Association’s e-discovery and digital evidence committee, is one of the nation’s leading experts on e-discovery, and he says that the production of documents “adds a layer of complexity.” “When a party produces a document,” he says, “they’re asserting that it’s responsive to a request. By turning it over, there’s an assumption that they’ve at least looked at the document in order to make that assertion.”
Even in this environment, Bennett said, parties can agree to turn over documents en masse (after filtering out potentially privileged documents), without reviewing the remainder. These types of agreements make civil discovery much simpler and less expensive.