Basic Model
Litigation is launched for purpose of draining resource (time and money). Discovery is a way to acquire lots of documents and also drain legal costs. Many motions for new documents can be launched in a series.
Mitigation
Basic mitigation strategy is to prepare ahead and reduce the costs. This may render the use of discovery as a weapon less useful.
In multiple parts:
- Members doing official business of CAcert use CAcert email addresses for all email relating to the business of CAcert.
- All business of CAcert is by default open and public. Secrets have to be heavily and serious justified, so there is no excuse not to use CAcert email addresses.
- the CAcert email system shoves every email into a black hole for later discovery mining.
- Arbitration is required to whiten the black hole.
Much of the groundwork for this has been done: we have the email system (thanks, Daniel!), we have the open policy and practice, we have dispute resolution. The last step, the black hole, can be worked on some time by Daniel and other email systems administrators.
History
At the 2007 'top', the Pres. crafted and pushed the strategy through. Arbitration was also approved at that meeting. CommunityEmail was up and going by beginning of 2008.
Background to Threat
"Discovery, the bright new sword of the digital judiciary!", 20080902.
"The big data dump," The economist, 20080828.
"Beware Masters in E-Discovery," William J. McLean.
Notes
Primarily an American issue, but also prevalent in other anglo common law countries (Australia, Britain, etc.). Less prevalent in continental civil code countries.