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Discovery Sanctions: No Substitute for Good Old-Fashioned Lawyering


I had the privilege of studying evidence and trial advocacy under the expert guidance of Tom Mauet. In fact, his leading practice guides – dog eared and creased – stared down upon me and my computer during my entire time in private practice.

One of those volumes was a bright red trial notebook. And in it was a deceptively simple form – a blank chart into which one placed the elements of a claim to be proven, together with the admissible evidence uncovered to support each element. Paraphrasing Professor Mauet, he who knows the elements is winning; he who knows the facts has won.

I was reminded of my old red notebook recently when I read the order (available here) granting the plaintiff in the Waymo v. Uber case a permissive adverse inference jury instruction, based on Uber’s destruction of text messages and other potentially relevant information. Even in the presence of such egregious discovery misconduct, the court was clear that “[b]oth sides will have to prove their cases to the jury the old-fashioned way — by laying the necessary foundation and relying on admissible evidence and properly-designated witnesses.” The proceeding “will be a trial on Waymo’s claims of trade secret misappropriation, not a trial on Uber’s litigation practices or corporate culture.”

And yet, despite entering trial with what would appear to be a huge advantage, Waymo settled just four days into trial. Even with an adverse inference instruction, it can only be assumed that Waymo was not convinced that the evidence in its version of the red notebook would be sufficient to win the day. It may have needed even more – in the words of the court – admissible evidence and properly-designated witnesses.

At Level 2 Legal, we pride ourselves on helping both outside counsel and our mutual clients find adequate and admissible evidence to support the claims and defenses before them, often in what initially appears to be an overwhelming sea of documents and data. We do this by leveraging cutting-edge technology with – as the court in Waymo would say – good old-fashioned lawyering. We take the time to work with outside counsel and clients to understand not only the case before them, but also the cast of characters and data sources behind them, all so that the most important records can be found quickly and with precision.

We invite you to judge for yourself. Click below to connect with one of our dispositive evidence experts.

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