When I was growing up, Mad Magazine's Spy Vs. Spy was a highlight of each month. The two Cold War spies tried to kill, poison, blow-up or otherwise eliminate each other. When one spy had an idea, the other spy tried to do something bigger and better. Good thing these spies didn't have email. The Department of Justice does.
This episode of "Caught By Email" is entitled "Email Vs. Email" because it reminds me of these spies and their effort to do something bigger and better. Last week, the Justice Department released selected emails that embarassed Attorney General Gonzales. Some of these were very specific about the firings and were published widely.
Yesterday, the Department of Justice topped themselves by releasing 3,000 pages of e-mails. Editor and Publisher magazine called it a "document dump." Instead of a few emails with a smoking gun, we have an entire smoldering forest. The good news is that somebody else at some television network or nwespaper is reading the messages to find the best (most sensational) ones.
I do see a disturbing trend -- the "overwhelm them with electronic bits" defense. Don't complain about the cost-benefits of discovery, as Ann Fort in Law.com and Stephen Rosenberg do. Instead, raise the cost to the opposing party to review the document releae so that it is too expensive to find the smoking gun. I can just imagine a litigator saying, "If they are going to make us recover so many documents, lets make them spend $500,000 in reviewing documents." If that happened at the Department of Justice, I hoped they learned enough this week not to suggest the idea in an email.
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