I’m sure the story about the unfortunate “fudge this” comment accidentally left in a set of company accounts is familiar to many lawyers, especially those involved in litigation (or M&A, when rounds of revised documents are flying through the small hours).
This latest example is embarrasing but really not too bad. The real mistake was using the word “fudge”. Anyone who has helped put together (or dissect) accounts and other reporting data knows that occasionally something does need to be a “best estimate” (a more advisable term).
In litigation a lawyer’s job often involves poring over documents, looking for mistakes, inconsistencies, and things that are generally helpful to your client’s case. Much money and sweat is expended on discovery and hoping to find the elusive smoking gun. It does happen, but in my experience unless it’s an outright admission of guilt/breach/bad faith/etc (or something similar), it’s usually not as damaging as it might at first seem.
It’s more productive to focus on the links between documents and “data mine” what you already have (or can get easily). Many lawyers on the other side of major disputes I’ve been involved in have done a terrible job (apparently, based on the results) of data mining their material.
But in terms of what’s in the documents themselves, far better (or worse) than a simple comment, can be tracked changes left in a document. These are great because they record the exact changes made to specific words, the user who made the change and the time. I recently had a situation where this was especially useful in proving certain negotiations between a first and second draft of a contract. There are stories of clients (and lawyers) being caught out by some unmerged tracked changes, or Word’s less-understood “versioning” feature.
The upcoming changes to the District Court Rules make the old discovery process obsolete. It is no longer necessary for the parties to disclose all relevant, non-privileged material. But thanks to email, litigants tend to have far more of the “other side’s” documents than ever before. And thanks to electronic documents, tracked changes and the like, there is more data in the documents than ever before. It will be interesting to see how the new DC discovery process goes, and whether it results in litigants focussing more on data mining what they have, in preference to wrangling over what they don’t.