Defendant Donald Trump faces charges of conspiring to defraud the United States, among other felonies relating to Trump’s efforts to overturn the results of the 2020 presidential election.
One aspect of the case that drew headlines recently was special counsel Jack Smith and Trump’s legal team’s dispute over when to schedule the upcoming trial. The prosecution has proposed a trial date of Jan. 2, 2024. Trump’s legal team has countered with a trial date of April 2026. U.S. District Judge Tanya Chutkan will ultimately make the call.
Trump’s legal team contends, in part, that they need years to review the massive amount of information Smith’s team has filed. Well, I’m here to explain to you that the Jan. 2 trial date is perfectly reasonable, and I am extremely well qualified to make that judgment.
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As the Associated Press reports, Team Trump argues that
[the] years-long delay is necessary both because of the unprecedented nature of the case and the "massive" amount of information — 11.5 million pages — that they have to review. They said they would have to review about 100,000 pages per day in order to meet the Justice Department's proposed trial date.
"If we were to print and stack 11.5 million pages of documents, with no gap between pages, at 200 pages per inch, the result would be a tower of paper stretching nearly 5,000 feet into the sky. That is taller than the Washington Monument, stacked on top of itself eight times, with nearly a million pages to spare,"
Though my (pseudonymous) writing here focuses on the Russian war in Ukraine, I have previously mentioned that I’m an attorney. My work gyrates between super busy 100-plus-hour weeks to very low intensity—for an attorney—40-hour weeks. In those “slow” periods, I take time to write articles for Daily Kos, where I am now a Community Contributor.
Who I am matters as you read this particular story because I’m not just an attorney, I’m a very specialized attorney. My specialization happens to be very relevant to Trump’s case in D.C. I work as the senior manager of the discovery services operations division for a highly specialized legal services vendor focused on foreign-language electronic discovery.
“Discovery” is the legal process wherein each side of a litigation exchanges evidence with the other. It’s a process that is nearly unique to the United States. In most countries, attorneys must have a fairly clear idea of what kind of evidence that they want from the other side, and issue a subpoena requesting the other side produce that evidence.
In the United States, it’s permissible to ask broad sweeping questions, requesting production of anything that relates to the case.
The discovery process is frequently cited as having entered the electronic discovery era, also known as e-discovery, with the Enron prosecutions in 2001. Enron executives infamously destroyed many of their paper records in hopes of evading prosecution for SEC violations. To make up for the lost paper documentation, Enron investigators made broad sweeping requests for production of electronic records: emails, computer files, and other electronic records relating to alleged violations by Enron executives.
Electronic discovery gradually transformed what large-scale litigation discovery looked like. Whereas litigation evidentiary rooms might have been filled with bankers’ boxes full of documents (like the Nuremberg trial documentation pictured above), the focus of investigations shifted into the electronic realm. Emails, text messages, WhatsApp chat logs, standalone computer files, and notes: This what modern discovery focuses on today.
And so the volume of available evidence for review in major litigation exploded.
Example: A plaintiff in a class-action lawsuit against a car company and alleging defective design might reasonably request all communications and documentation pertaining to the design of that vehicle from the relevant engineering division. These requests would frequently go back years—even decades.
This can amount to tens of millions of emails or standalone files—and that’s before text messages or app communications.
The biggest U.S. law firms have thousands of attorneys. However, they also have a client list to match; thus as the labor requirements for review of evidence became more onerous, the labor requirements for reviewing the evidence became overwhelming.
In the mid- to late-2000s, a legal services industry emerged, catering to major law firms’ electronic discovery (e-discovery) needs. These companies were providing technical services to host, sort, and organize the data, plus assist in its production. It’s a model where low-cost contract attorney teams review documentation and are subcontracted for such by major law firms.
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My employer focuses on foreign-language e-discovery. Imagine a major litigation involving a German, Thai, or Japanese company: A large amount of the e-discovery data would be in a foreign language. It’s cost-prohibitive to translate every document, but when tens or hundreds of millions of dollars (or more) are at stake, companies rarely want to rely upon machine translations. Thus they need foreign language-speaking attorney teams to assist in analyzing data.
And so we are a niche specialist in a field of niche specialists, working predominantly on major anti-trust cases or federal international bribery cases—complex financial crimes.
As the head of the foreign language services e-discovery division, my days are spent in the voluminous analysis of multilingual electronic evidence. At e-discovery conferences, I teach other attorneys and corporate legal departments about e-discovery processes, and I frequently talk about the roles of artificial intelligence and technology-assisted review when analyzing large volumes of data.
All of this is to say that I don’t believe I’m exaggerating when I state that I am probably one of just a handful of specialized attorneys in the United States best qualified to talk about labor requirements in analyzing large volumes of evidence in litigation.
Still with me?
When Trump’s attorneys are talking about needing to review 11.5 million pages of evidence, Trump’s legal team is not, or should not, be the only ones reviewing the evidence. No major law firm would ever approach a case of this magnitude in that way. They would absolutely subcontract the review of evidence to an e-discovery vendor like my employer, who would then assemble a team of attorneys to review the evidence on their behalf, with the most important evidence compiled into a report.
Also, this isn’t an exceptional amount of data for such a major litigation. In one case I’m currently working on, we began with over 10 million electronic files. Files, not pages—and many of the files are 15-20 pages long. Assuming conservatively that each file was five pages or so long, I think we’re looking at around 50 million pages of evidence.
My company will analyze these files and report back to the law firm in six weeks. Not six years. Not six months. Six weeks. We have 54 attorneys working on this matter, which spans three languages. Speed is simply a function of resources committed—it’s not rocket science.
In an average, typical case, one might expect an average attorney to review around 40 documents/electronic files per hour. Assuming five pages per document, that’s around 200 pages an hour, and around 1,600 pages per eight-hour day (and we often don’t work eight-hour days).
Yet even assuming eight-hour days, a team of 50 attorneys can get through 80,000 pages per day, 2.4 million in a month. That can be boosted to 3-4 million pages a month through longer hours.
For a particularly large-scale litigation, review attorney teams get even bigger. On a major class-action litigation, I was once part of a team of nearly 200 attorneys and translators. Even larger litigation discovery teams have been assembled.
Furthermore, it’s simply not necessary to look at every page of evidence. Documents are routinely scanned, which allows them to be searched electronically. Even on a most basic and unsophisticated level, these scanned documents can be keyword-searched, which can sharply limit what is likely to be necessary to be reviewed.
Important documentation can be frontloaded.
Artificial intelligence can also be utilized. An intelligent learning process called TAR 2.0 can identify documents that are similar to others previously deemed unimportant. This can reduce the amount of documents needing to be manually reviewed, often by 20-30%.
Even without using such tools, 11.5 million pages of evidence simply don’t add up to the kind of overwhelming volume that the Trump legal team suggests. E-discovery vendors routinely handle such matters in a matter of a few months or less.
Chutkan, of course, is undoubtedly aware of common practices in handling larger volumes of evidence in major litigation. I think she is unlikely to be sympathetic to Team Trump’s claims of the need for a years-long delay.
For Trump’s legal team to suggest that such volume requires years of review potentially implies complete ignorance of modern major litigation practices. More likely, it is a disingenuous ploy to undermine the credibility of the court in the public eye when their request is denied. TrumpWorld is all but certain to fall for it—but I know you won’t.
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