Explaining Berkey-Kodak through corruption-of-judgment theory

With these thoughts in mind, let me return to the Berkey-Kodak case and see what light the corruption-of-judgment theory may shed on it. The theory suggests that we should find the partner’s and associate’s misdeeds at the end of a slippery slope, beginning with lawful adversarial deception and culmi­nating with lies, perjury, and wrongful obedience.

Every litigator knows that discovery is one of the most contentious parts of civil litigation. Civil discovery is like a game of Battleship. One side calls out its shots - it files discovery requests - and the other side must announce when a shot scores a hit. It makes that announcement by turning over a document. There are two big differences. First, unlike Battleship, it isn’t always clear when a shot has scored a hit. Lawyers get to argue about whether their document really falls within the scope of the request. They can argue that the request was too broad, or too narrow, or that the document is privileged, or is attorney work-product. Second, unlike Battleship, lawyers don’t always get to peek at the opponent’s card after the game. When the opponent concludes that a shot missed her battleship, she makes the decision ex parte - she doesn’t have to announce it to her adversary, who may never learn that a smoking-gun document (the battleship) was withheld based on an eminently debatable legal judgment.^[465]

Every litigation associate goes through a rite of passage: she finds a document that seemingly lies squarely within the scope of a legitimate dis­covery request, but her supervisor tells her to devise an argument for excluding it. As long as the argument isn’t frivolous there is nothing improper about this, but it marks the first step on to the slippery slope. For better or for worse, a certain kind of innocence is lost. It is the moment when withholding information despite an adversary’s legitimate request starts to feel like zealous advocacy rather than deception. It is the moment when the no­deception principle encoded in Model Rule 8.4(c) - “It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation” - gets gerrymandered away from its plain meaning. But, like any other piece of elastic, the no-deception principle loses its grip if it is stretched too often. Soon, if the lawyer isn’t very careful, every damaging request seems too broad or too narrow; every smoking-gun document is either work-product or privileged; no adversary ever has a right to “our” documents. At that point the fatal question is not far away: Is lying really so bad when it is the only way to protect “our” documents from an adversary who has no right to them? If legitimate advocacy marks the beginning of this particular slippery slope, Berkey-Kodak lies at its end.