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Thursday, May 17, 2012

Mladic and Getting Discovery Right

The Mladic trial at the ICTY has gotten off to a rocky start.  The judges today indefinitely suspended the proceedings while they consider the prosecution’s failure to meet its disclosure obligations to the defense.

The trial had just begun this week.

Mladic’s attorneys have asked for a six-month delay while they now review the evidence that should have been disclosed earlier.  At this point it is impossible to tell if the court will grant this request or will impose a shorter delay.  Either way, it’s a frustrating beginning for the final chapter of the ICTY’s trial program.

Apparently, the prosecution believed that it had disclosed over 12,000 pieces of evidence that, it turns out, it had not released to the defense.  That's a pretty big mistake.

Note to clients: make sure you handle your discovery obligations properly and don’t skimp on the legal fees.  As an American law school professor, I realize that many of my graduating law school students will start their careers at international law firms where they will work on large document review projects required by the extensive discovery system that we have in common law litigation.  Although it has a reputation for being grunt work, it’s actually a very complicated endeavor, that has to be handled professionally, and often raises complex legal issues that need to be addressed on a daily basis by fast-thinking attorneys.  And it also raises complex technical (e.g. computer) issues that, if not understood, can lead to precisely the type of errors that have derailed the Mladic trial. 

Of course, there are now specifically designed software programs to help manage the discovery process, such as Concordance, though they do not eliminate the need for sophisticated and intelligent attorneys to manage them.   In fact, I would hazard a guess that they do the reverse: they increase the need for smart and well-trained attorneys.  As the information age has radically transformed the scope and nature of the discovery process, with a much larger universe of documents to work with, properly trained attorneys are now more essential than ever.  And this is equally true in international criminal law, given the vast scope of modern atrocity trials such as Mladic, where the number of victims numbers in the thousands and the number of relevant documents reaches the hundreds of thousands.

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