Fade in: An almost empty courtroom, except for counsel, the judge, the court reporter and two lone observers. There is a muffled clatter of handcuffs as prisoners — in a rare display — shuffle through the back of the courtroom on their way from holding cells to hearings. Except for a brief interlude of shouting in the hallway, which causes the judge to ask no one in particular whether he should “push the button,” there is no crowd of onlookers, no “Law and Order” moment — only the sparring of opposing counsel in a prediscovery preservation hearing.
It’s a scenario that has been repeated in courtrooms across the country. The hearing comes after weeks of expensive yet unsuccessful meetings between the parties regarding document preservation. The court had earlier ordered the parties to reach an agreement as to the scope and process of preservation, in the hope that seasoned and reasoned minds would prevail and everyone could get on with the business of the case. It was not to be.
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