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Joe Patrice

Joe Patrice is an Editor at Above the Law. For over a decade, he practiced as a litigator at...

Kathryn Rubino

Kathryn Rubino is a member of the editorial staff at Above the Law. She has a degree in journalism...

Episode Notes

So much has happened that you’d be forgiven for thinking Jeffrey Toobin removed himself from the public eye — by not removing himself from the public eye — forever ago. Alas, it was only last week. We talk about the downfall of one of America’s preeminent legal talking heads, the challenge for Biden when it comes to the apparent inevitability of court expansion calls, and we have a little eDiscovery lesson courtesy of Ghislaine Maxwell’s unsealed deposition transcript. What will next week bring?

Special thanks to our sponsors, Paper Software, and LexisNexis® InterAction®.

Transcript

Thinking like a Lawyer

Toobingate Was Only Last Week

October 28, 2020

[Music]

Intro:  Welcome to Thinking Like a Lawyer with your hosts; Elie Mystal and Joe Patrice talking about legal news and pop culture all while Thinking Like a Lawyer here on Legal Talk Network.

[Music]

Joe Patrice:  Hello, welcome to another edition of Thinking Like a Lawyer.  I’m Joe Patrice from Above the Law.  I’m joined by my colleague, Kathryn Rubino.

Kathryn Rubino:  Hi Joe Patrice, how are you?

Joe Patrice:  Good.  It’s another day.

Kathryn Rubino:  Yeah, it’s another day.  We’re inching ever closer to election day which seems like a pretty good news.

Joe Patrice:  Yeah.  No, I mean we’re coming down the stretch-up.  As of right now, as we’re recording, I am putting the finishing touches on yet another drinking game that everybody —

Kathryn Rubino:  So, you’re going to kill us all?

Joe Patrice:  Everybody will have already cursed me over by the time this comes out, yeah.

Kathryn Rubino:  Yeah, I mean listen, you did one for the VP Debate and you did one for the First Debate.  Not the Town Hall, the Dueling Town Halls which by the way very surprised that Biden had higher ratings than the Trump Town Hall but I’ll take it.  So, you know, you’re going to go three for three and absolutely knock it out of the park at this time.

Joe Patrice:  I’m trying not to hurt people.

Kathryn Rubino:  Please hammer(ph) don’t hurt us.

Joe Patrice:  It just keeps — yeah, yeah, there you go. It just keeps getting worse, yeah.  So, we are coming down to the end of that.  There’s obviously a lot going on, we’ve got confirmations, hearings happening we had —

Kathryn Rubino:  Over there, it had been advanced to the —

Joe Patrice:  To the floor by a unanimous vote, that just happened a little bit ago as we’re recording this.  But obviously, we have other topics to talk about that aren’t necessarily related to that.  But it’s been an eventful week in law but first, we should talk just really quick and note that we’ve got a few more firms that have given some bonuses — the Fall bonuses between Willkie(ph) and Akin(ph) so that’s good to know.

Kathryn Rubino:  Yeah, I mean it’s nice to see that not everyone is just blindly following Cravath(ph) that there are some folks that still see the value in giving people money early.

Joe Patrice:  Yeah and it’s a sign that the economy is turning around for the attorneys and have you ever wondered, have you?

Kathryn Rubino:  Every week around this time, I start to wonder.

Joe Patrice:  Do you start to wonder right now?

Kathryn Rubino:  I start to wonder what law firms have done —

(Voice Overlap)

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Kathryn Rubino:  Is it big at all?

Joe Patrice:  There’s a question about whether it’s big.  I mean it’s important, I don’t know how big it is but we — of course —

Kathryn Rubino:  Yeah well, I mean because some people know though, exactly how big is —

Joe Patrice:  A lot of people do know.

Kathryn Rubino:  Unfortunately, too many people found out exactly how big it is.

Joe Patrice:  Yes, yes. As we record these shows, utilizing Zoom, I am here to just convey to you that I am fully clothed right now.  Which makes us different than say, a certain Legal Analyst who’s of — great renown on cable news.  So, Jeffrey Toobin this week has been apparently fired from the New Yorker and is on a leave from CNN and doesn’t appear to be doing a lot of stuff right now because he was conducting —

(Voice Overlap)

Kathryn Rubino:  Personal business.

Joe Patrice:  Personal business on the company dime(ph), yeah that’s the way to put it.

Kathryn Rubino:  That is a way to put it, that’s for sure.

Joe Patrice:  That is a way.  Yeah, so Jeffrey Toobin was doing a Zoom conference with people from WNYC and the New Yorker where he worked until recently and they —

(Voice Overlap)

Kathryn Rubino:  It’s very recently.

Joe Patrice:  They were doing a simulation of the election, which I didn’t —

Kathryn Rubino:  Stimulation of something —

Joe Patrice:  I didn’t quite understand what the logic of this simulation was.  Like, he played the courts in a simulation of the election.  I don’t even know what that means but whatever.  So, they were doing a dry run of some sort of weird simulation.  He did not understand how — maybe the camera works.

Kathryn Rubino:  Okay, yes.  He definitely did not understand how the camera works that is 100% accurate but let’s back up a second.

Joe Patrice:  Okay.  We’re backing up.

Kathryn Rubino:  Just a half second because regardless of whether or not your camera is currently recording, there are some things you should not be doing when you’re in the middle of a work call.  I don’t care how boring it is.  I’ve been — listen, before I was a podcaster/blogger, I was a lawyer.  I worked at legal technology companies.  I’m telling you I’ve been in boring meetings in my lifetime.  Never ever, ever, even once has the thought occurred to me in lieu of actually —

(00:05:10)

Joe Patrice:  Hey, I could be masturbating right now.”

Kathryn Rubino:  Yeah, that just never even crossed my mind.

Joe Patrice:  Yes.  Well apparently, it does cross Jeffrey Toobin’s mind, allegedly and seemingly confirmed to the extent he is in no way countering this narrative.

Kathryn Rubino:  I mean, people saw it, right?

Joe Patrice:  Yeah.

Kathryn Rubino:  It’s not like “Oh, you know, something happened behind closed doors.” Like, he was on a work Zoom call with his camera on, jerking off.

Joe Patrice:  That is apparently what has happened, yes.

Kathryn Rubino:  That is the current information we currently have.

Joe Patrice:  That is what’s happened.  Look, as I put it, I’m on a lot of bad calls a lot of times.  I mean we work together, I’m on calls with you.

Kathryn Rubino:  Okay, friend.

Joe Patrice:  No, I was saying that more as in you know the kind of calls, I’m on, I’m not making any aspersions that’s —

Kathryn Rubino:  That’s not what you meant.

Joe Patrice:  Okay.  I feel I’m being maligned.

Kathryn Rubino:  Well you should, first of all, you should.

Joe Patrice:  Okay.

Kathryn Rubino:  Second of all, it is what you were saying, you were trying to malign me, not the opposite.

Joe Patrice:  Anyway, so I —

Kathryn Rubino:  I don’t want these non-committal grunting noises.  I don’t know what you’re doing when you’re just grunting over there.

Joe Patrice:  That’s fair and that’s a good point.  Point well-taken.  I doff my hat to you.  And doff my hat is a euphemism.  Look, I’ve been on —

Kathryn Rubino:  I’m going to cough.  That is not COVID, that is allergies within the last year.  So, I’ve had allergy testing, I’m allergic to the mold that grows between wet leaves when they fall from the trees and they gather in piles.  There is apparently a mold that grows in between the leaves and that is something I am allergic to and I recently had a COVID test because I thought my allergies were in fact COVID.

Joe Patrice:  And they were not.  Well thanks for clarifying that.  Look, I’m on a lot of calls with you that are not particularly entertaining.  I make the jerk-off motion a lot but I’m doing it just because I’m annoyed at the conversation.

Kathryn Rubino:  Sure, and you’re also trying to pantomiming what you think the other people are doing and they are doing it like an intellectual masturbation.

Joe Patrice:  Right.

Kathryn Rubino:  Not a physical —

Joe Patrice:  Figurative, it’s the distinction that exists between figurative and literal in this world and you know, we feel as though maybe if you’re bored with a simulation, you can do anything besides jerk off.

Joe Patrice:  Yeah.  I mean look.

Kathryn Rubino:  I mean, first of all just to kind of ridiculous self-importance you must have in order —

(Voice Overlap)

Joe Patrice:  — self, yeah.

Kathryn Rubino:  Fair, that you must have in order to think that that’s an appropriate way to deal with any work situation.

Joe Patrice:  Right.  Now we’re transitioning to kind of the serious part of the conversation.  Yeah.

Kathryn Rubino:  I mean, it is still gobsmacking.  I have in my lifetime spent almost 24 hours in a row in an office.  I’ve slept underneath my desk and I never thought “Oh, you know what this is?  This is a really good time to jerk off.”

Joe Patrice:  Yeah.

Kathryn Rubino:  Also, because I was in the fucking office, right?  Like, it was wildly inappropriate, that have never even crossed my mind.

Joe Patrice:  Yeah, and I hear the words office.  But even in this pandemic world where you’re at home, there’s something of a mental barrier between what you’re doing for work and not.

Kathryn Rubino:  I guess not —

(Voice Overlap)

Joe Patrice:  — but the real issue is, there’s a number of people in the media.  Well, surprise no one at all to know that it’s their men in the media who are trying this rehabilitation process.  Already trying to say —

Kathryn Rubino:  It’s a little too soon.

Joe Patrice:  Shouldn’t we just say that this was embarrassing and let him go?  And the answer to that is no because this is sexual harassment, like that’s what this is.  It is not — it doesn’t matter that he didn’t intend to do it or whatever, but like when he is doing that sort of stuff.

Kathryn Rubino:  I mean he did intend — the action —

Joe Patrice:  What he intended to do is — I don’t think it was accidental but —

(Voice Overlap)

Kathryn Rubino:  But that’s what I’m saying and initially, it came out after it was a couple of hours after the initial story broke that what he was actually doing was revealed.  Initially, it was just that he somehow revealed himself inappropriately or something inappropriate happened on the call.  The exact specifics were not yet known and I can imagine particularly in a pandemic world, a situation where somebody’s wearing boxers.

Joe Patrice:  Right.

Kathryn Rubino:  And stands up quickly or something happens where they didn’t mean to reveal themselves, but revealed themselves and that is a very different — that is an inadvertent instance.  The consequences, there’s still consequences but I think very different.  It’s not like you accidentally pull over the bottle of lotion and look what happened.

Joe Patrice:  Wow okay.  Yeah.

Kathryn Rubino:  Right?  This is a very deliberate action that he took.

Joe Patrice:  Yes.  No, and it’s not —

Kathryn Rubino:  And so, it’s not like “Oh, it’s so embarrassing.”  Oh, embarrassing is like — when I was in grade school when I —

(00:10:00)

Joe Patrice:  Uh-oh, this is going a weird direction.

Kathryn Rubino:  No, the strap on my bra broke.

Joe Patrice:  Oh, okay.

Kathryn Rubino:  And that is something that was inadvertent, it was very embarrassing.  I would hate for people to bring it up years later or get fired as a result of something like that, what’s beyond sort of your control.  And then something embarrassing happens to you.

Joe Patrice:  Right.

Kathryn Rubino:  These things happen.  That is part of the human condition, embarrassment is part of it.  It is fine, that is a very different situation and taking deliberately revealing yourself.

Joe Patrice:  Right and I — originally, when I heard this, I posited the idea that this was some sort of an accident when somebody was just “Not professionally dressed” but nonetheless, taking it seriously which can happen.

Kathryn Rubino:  But that’s the sort of thing that in the world of COVID, I think is.

Joe Patrice:  Right, could happen.  But I mean, I flagged at the time that I felt it might become something worse, which it then did when Toobin’s statement about it was that he apologized to his wife, which seemed like not a thing you would do if you accidentally had — you know?

Kathryn Rubino:  Something he is well-practiced at.

Joe Patrice:  Yeah, true.  So, this leaves now a hole for — no I did not — yeah.  No, this leaves now a hole in space where there were legal analyses on CNN and in various other outlets.  It seems as though this might be a good time for these networks to consider branching out and bringing on other voices to do these sorts of timely and important legal analyses, there are several.

Kathryn Rubino:  [email protected].  Sorry.

Joe Patrice:  There is definitely that.  Of course, we’re always available.  I haven’t done much legal analysis since Al Jazeera America went under.  I definitely hitched my start to being a legal analyst for that network and that unfortunately didn’t pan out.  But there are some real gems that I had while I was there.  But still — but yes.  No, obviously, we’re available but more importantly, I think that our colleagues are available.  Obviously, Elie, former co-host of this show is around.

There’s plenty of people you can go to, so we’re making that pitch to anybody in the media who’s listening, looking to book people that — we’ve got between us and more importantly, Thinking Like A Lawyer alumnus(ph) out there for people to go talk to.  But yeah, though this is —

Kathryn Rubino:  This is all real life(ph). 

Joe Patrice:  This is, yeah. 

Kathryn Rubino:  This is all real life. 

Joe Patrice:  So, speaking of tools.  What?

Kathryn Rubino:  Go ahead.

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So, we also — we just heard from the speaking of courts.  Obviously, we have the new justice situation but we also heard that Biden has proposed his response to this question that’s out there about court expansion/packing.  And basically, what is the plan to deal with the future of the courts after this ACB nomination inevitably is confirmed?  What will the next administration and at this point, barring something insane happening before you hear this.  We mean next administration — what is the next administration going to do about this?  And apparently, the answer is talk about it a bit.

Kathryn Rubino:  Okay.  First of all, I have a slightly different take than you do.  So, before we get into the nitty-gritty, can you — without editorializing, just kind of give a brief “This is what the Biden plan is.”

Joe Patrice:  Yeah.  So, in an interview with Norah O’Donnell, Joe Biden says that his response to the court reform issue which earlier, he had said back in the beginning of the year, he had said he was opposed to the idea of court expansion.

Kathryn Rubino:  Sure, because it’s been well maligned throughout history.

Joe Patrice:  Right.  Then he took on more of a stance in those town halls of well, it depends on what happens with this nomination.  I’m leaving my options open but the implication being then — you know, that he would do something.  Now, the more concrete answer that he’s offering is that he would put together a bipartisan commission of constitutional scholars and practitioners and liberals and conservatives to talk about what court reform might look like.

Kathryn Rubino:  Okay, so your take is?

Joe Patrice:  I mean, it’s the ultimate brush off move, right?  This is the definition of “We’re going to appoint a committee to talk about something” is the way in which governments and officials say “This is something we don’t really care about and we’re going to bury it somewhere.”

It is a blow-off of it.  It signals that there’s not — it actually, as opposed to signaling that “Hey, this is an important thing we want to look at.”  It actually sends the opposite message; it sends the message “I can’t be bothered to have an opinion about what to do.  So, let’s just defer this to some other time.”

(00:15:06)

And also, to the extent that it is being advertised as bipartisan is a recipe for a failure to get any progress on it.  There are scholars who’ve already written about it, you can read about it yourself.  You can figure out a good idea and then you can advocate for it.  It just seems like a lackluster response which is particularly bad politics in a world where if you think as I do, that the undecided voter more or less doesn’t exist.  But to the extent they exist, they clearly don’t care what your policies are because otherwise, they wouldn’t be undecided but rather that you have policies that you are somebody who is willing to take stance and have principles and whatever.  And the idea that my response to this very weighty issue is punt seems like a problem.

Kathryn Rubino:  See, I mean, I would think I would definitely prefer a candidate that had a more bold, more definitive plan but I don’t think that it’s first of all is a brush off.  I think that although Americans generally don’t like committees, what they do love is bipartisan support.  They love a good bipartisan recommendation and I think it will depend which scholars from both sides of the aisle wind up being — or whoever runs is, filling up this committee.  Assuming that there is a Biden administration, knock on wood and do you think that bipartisan — sort of efforts are wildly popular.  So, I think that that is definitely something that I think could be good.  I also think that it also is a very strong signal that why we’ll treat it differently than the current Trump Administration.

Biden’s whole reason why he got the nomination in the first instance is like “Return to normal, let’s go back,” right?  And we’ve had a tremendous amount of upheaval in the country just politically in terms of norms, in terms of all this kind of stuff that’s happened.  And I think that what he’s trying to signal perhaps not as articulately as it could be signaled.  But what he’s trying to signal is like, “We need to get back to a level of professionalism.  A level of thoughtfulness and we can’t be bold for the sake of being bold.  We have to be very deliberate in our actions.”  That’s the Biden brand, you know?  I get it, I will kind of reserve my final judgment to see who’s actually on the committee.

But I think that there are a lot of — not necessarily Republican because I think that because I’m too partisan(ph) but I do think there’s a lot of conservative legal scholars who might be much more willing to engage in actual discussion, I don’t know.  But I think it will be interesting.

Joe Patrice:  I’m going to push back on the idea that people like bipartisanship.  There’s no real evidence of this.  We constantly have these situations where Democrats get elected and say “We’re going to put a republican in the cabinet because blah blah blah” and they do all these overtures and then the response is the Republicans say “We don’t do any of that.  We got elected, screw you.”  And this doesn’t seem to change anyone’s opinion one way or the other. 

Kathryn Rubino:  Sure, and I think —

Joe Patrice:  There’s just like the myth of the undecided voter and they do exist but they are a very increasingly small number of people — is people don’t actually care about bipartisanship, the vast majority of people who vote in the country choose one side or the other consistently.  And to the extent there’s people in the middle, there’s no evidence to suggest that showing kindness and generosity to the other side is the way to bring them onboard.  We just don’t see no matter what people say.

Kathryn Rubino:  I think that that is — I’m not saying that’s untrue but I do think that the average kind of democratic voter actually puts a value on bipartisanship.  Even though they are clearly in one category, there is a certain segment of sort of the Clinton-Obama kind of world that puts a strong value on bipartisanship as a value.

(Voice Overlap)

Joe Patrice:  Well, I agree with that but I think I’m one of these people who thinks that the value they put on it, is they think it is persuasive to some undecided population, that I don’t think is true.  I think this is a myth that has become conventional wisdom among them and that in reality, it doesn’t result in picking up undecided voters and if they knew for a fact that it did not do that, they wouldn’t hold this value, but alas.  It just seems as though this was a bit of a punt which is annoying, especially because —

Kathryn Rubino:  Sure, it’s annoying but I also think it’s probably not going to change anyone’s opinion.

Joe Patrice:  Right.  I mean look, I’m not —

Kathryn Rubino:  Record numbers of people that have already voted.

Joe Patrice:  Sure.  But like — yeah, it’s not about the voting as much as — which actually doubles down proves my point, right?  To the extent it’s not about the voting, then there’s really no logic in trying to pitch this “We’re going to be bipartisan garbage” but yeah, I think that the — I am not one of these folks who believes that court expansion should be the first response.  I think it’s a bad idea as a matter of reform, I think that there are major reforms that need to happen to the courts but that’s not a particularly good or targeted one.  And that there are other options available but I don’t think there needs to be a commission to flush them out, they’re out there. 

(00:20:06)

We’ve all written about them, I write like these kind of pop cultur-ish articles about them for the masses. 

Kathryn Rubino:  Sure but —

(Voice Overlap)

Joe Patrice:  — scholars are writing this.  It’s out there, it is known you don’t need a commission to flush this out, especially when you consider that the kinds of people who would end up on a commission of practitioners and so on and so forth, are people who are doing good work but are functionally lobbyists, right?  They are people who represent powerful interests in what they want to do and that’s how they want this court structured.  So that they can continue to do that. That’s all well and good but not necessarily the people who should be invited into the reform discussion.  Anyway, just seems bad.

Kathryn Rubino:  But I will say — but I also think that like, if it’s focused as there will be court reform, what should the reform be?  That is already left of center.

Joe Patrice:  Yeah, I guess.  I’m not sure it begins with that discussion is the problem.  I think that’s a precondition that you’re putting on it that would be more favorable.  Anyway, alas, not encouraging.

Kathryn Rubino:  It’s not the best thing I’ve ever heard but far from the worst news of the day.

Joe Patrice:  Yeah.  No, it’s just, you know?

Kathryn Rubino:  Yeah, I mean I heard —

(Voice Overlap)

Joe Patrice:  There’s a lot written out there and they can just figure it out on their own. 

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So, continuing our occasional conversations about weird and troubling scandals in this world, there was a deposition that got released.

Kathryn Rubino:  Oh, yeah.  The Ghislaine Maxwell case, obviously — associate of Jeffrey Epstein and is currently facing charges, six federal charges including inducing a minor to commit illegal sex acts.  So, you know, not great for her.  Previous to that, she had given a deposition in 2016 in a defamation case about the underlying allegations.  And the Miami Herald sued for a copy of the deposition, as well as other documents and it was released today.  And Slate, pretty quickly put out an article being like “We have cracked the code” because obviously, there have been privacy redactions made in the publicly released documents and they have figured them out. 

Joe Patrice:  So, this happens a lot.

Kathryn Rubino:  It happens.  Yeah.

Joe Patrice:  And now I’m going to speak to your kind of e-discovery background here.  So as a journalist, one of the things that you often do when you see a released document that’s been redacted, what’s the first thing that I, as a journalist do when I get a redacted document?

Kathryn Rubino:  Copy and paste.

Joe Patrice:  That’s right I select all and then paste it into something because there’s unfortunately a high number of people — or actually fortunately from my perspective a high number of people that remain stupid enough to think that putting the little redaction things on the document on top of it means that it disappears forever.  But if you copy and paste it, that just appears as a little bit of code next to the original text and you can just read the document here.

Kathryn Rubino:  And so, when I saw Slate’s headline “We’ve cracked the Ghislaine Maxwell Deposition.”  I was like “Copy and paste strikes again.”

Joe Patrice:  But thankfully, sort of.  Some people seemed to have figured out that that is a thing and they didn’t —

Kathryn Rubino:  Lots of people have figured it out.

Joe Patrice:  Right and they did not do that here.

Kathryn Rubino:  They did not.

Joe Patrice:  They correctly redacted, so good for them.  So how did they screw this up in another boneheaded way?

Kathryn Rubino:  Well, there’s an index.

Joe Patrice:  Right, because depositions have indexes at the end.  Well surely, they would have redacted the names that they were supposed to redact in the index too?

Kathryn Rubino:  They did.

Joe Patrice:  Well yeah, okay they did.  Okay, well then why would they be able to crack it then?

Kathryn Rubino:  Well, a bunch of different reasons.  So, part of it is because — and it’s alphabetized.

Joe Patrice:  Oh, the alphabet.

Kathryn Rubino:  The alphabet.

Joe Patrice:  New technology is getting people every day, the alphabet.

Kathryn Rubino:  The alphabet.  So, one of the examples, they were able to piece together the word that was redacted in the index.  It was right before clock.

Joe Patrice:  Right, it was before clock and right after like “clap(ph)” or something like that? And it’s like “Huh, what name –”

Kathryn Rubino:  Words that have been implicated.  So it has to be a proper name, right? Because it’s privacy redaction(ph).

(00:25:06)

So, you know it’s proper name, who has been implicated in the Jeffrey Epstein scandal —

Joe Patrice:  Discussions.

Kathryn Rubino:  Yeah.

Joe Patrice:  So, this could be Clinton.

Kathryn Rubino:  Oh, you get a prize.

Joe Patrice:  And you know, it could actually be easier to figure out when it’s revealed that sometimes that name comes up without being a privacy issue, meaning that they could cross-reference.

Kathryn Rubino:  Actually, I believe in the Clinton example.  It appears to be they actually refer to President Clinton.  It seems as if it was a — on page 135, it seems like it should have been redacted, I don’t know why that particular page is not redacted.  But when they’re talking about Prince Andrew, that’s another one that they were able to crack.  He was also implicated in the scandal and it’s Andrew and Andrews(ph) plural have both been — they pieced together both been redacted and part of way they’re able to figure it out is that one of the attorney’s office is on North Andrews Boulevard.

Joe Patrice:  Oh, my god.

Kathryn Rubino:  And so, that’s not redacted properly.

Joe Patrice:  But does show up as one of the things.

Kathryn Rubino:  But it does up here in the index.

Joe Patrice:  Because the index is computer generated.

Kathryn Rubino:  Yes.

Joe Patrice:  So, it doesn’t matter, yeah.

Kathryn Rubino:  Yes, so that appears in the index.  So, they’re able to piece together that is Andrews.  So, they’re able to figure it out that way.  Alan Dershowitz, they were able to put together because both Alan and Dershowitz are separately indexed and you can see from that context, the only Al word and De word, that kind of makes sense.  Particularly, there are several instances of them appearing right next to one another.

Joe Patrice:  Oh, there you go.

Kathryn Rubino:  So yeah.

Joe Patrice:  Yeah.  So, this is the practice pointer section of the show, where we talk to people about how when you’re redacting things.  Perhaps, a smart move would be A; not to send it out in a way where if we copy and paste it, we can figure everything out.  But additionally, the alphabet can trip you up, especially if there’s a computer-generated index. 

Kathryn Rubino:  Yeah, paying attention to what’s in the Index redacting the actual citations that the index has would also help as well.  So, if all the page numbers were redacted, you wouldn’t be able to say this particular redaction is on this particular page.  So that might be a way to do it better for the next time.

Joe Patrice:  Run the thing through the indexer again but after all of the redactions are in it.  This would be another option.  There is a plethora if you will, of ways that you could have done this without giving journalists a — basically unredacted copy.

Kathryn Rubino:  Yeah and there’s a bunch of others that they figured out and with a call, Slate has made a call too, to figure out even more because it’s just about having the time to figure out the context and deciding that it’s worth it.

Joe Patrice:  Look, I feel bad for whoever is the low person on the totem pole whose job it was to do this but this is a life lesson.  If you’re out there in litigation in particular, there will be a time when you are asked to put together a redacted copy of something and this is why we talk about this.  This is why we tell you “Hey, don’t let it be this thing to be copy and paste.  Don’t let this happen.”

Kathryn Rubino:  I mean listen —

(Voice Overlap)

Joe Patrice:  — or do as journalists, you say fine.  But as your friends, as lawyer friends we tell you.

Kathryn Rubino:  Yeah and I will say that except for the Clinton example, it seems as if the redaction were done correctly but varied by the letter of the negotiated terms as opposed to looking and thinking about what you’re trying to actually protect.  It’s good and a lot of times — I have spent in my lifetime a lot, like hundreds, probably thousands of hours of my life making redactions, that is just a fact of my life.  Thousands of hours I’ve spent redacting documents.  But you have to — and it’s boring and it’s time consuming, I’ve had to redact a thousand-page spreadsheets, talk about awful.

But you have to, as much it was boring and is time-consuming as it may be, you have to think about what you’re doing and why you’re doing it.  And if there’s — when you’re in there and you’re making redactions, like listen, “I’m just doing what I was told.  I was told to redact every instance of the word — every instance.  I’m just doing what I was told but not thinking about what it looks to new eyes that are getting it.”  You know, you’re doing your ultimate client a disservice.

Joe Patrice:  And with that very serious note, I think we should wrap it up here because we’ve gone — thank you for listening.  You should be subscribed to the show, you should give it reviews, stars as well as write something.  Writing shows engagement and that shows the podcasting overlords that people enjoy the show and gets us into more indices that say “Hey this is a law show and people should listen to it.”  So that’s very good and would be a huge help.  You should be reading Above the Law.

As always, you should be following, I’m @JosephPatrice, she’s @Kathryn1, the numeral one both on Twitter.  You should be listening to her show, The Jabot.  You can also check me out on the LegalTech(ph) Weekly Roundup.  You should be listening to the other offerings of the Legal Talk Network and you should — what else?  Anything else?

Kathryn Rubino:  I think that’s it.

(00:30:07)

Joe Patrice:  I think that is it.  So, thank you again of course to Contract Tools by Paper Software and with all of that said, we will check in with you all sometime next week.

Outro:  If you’d like more information about what you heard today, please visit legaltalknetwork.com you can also find us at abovethelaw.com, atlredline.com, iTunes, RSS, Twitter and Facebook.  The views expressed by the participants of this program are their own and do not represent the views of, nor are they endorsed by Legal Talk Network, its officers, directors, employees, agents, representatives, shareholders and subsidiaries.  None of the content should be considered legal advice.  As always consult a lawyer.

[Music]

(00:31:35)

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Episode Details
Published: October 28, 2020
Podcast: Thinking Like a Lawyer - Above the Law
Category: Legal News
Podcast
Thinking Like a Lawyer - Above the Law
Thinking Like a Lawyer - Above the Law

Above the Law's Elie Mystal and Joe Patrice examine everyday topics through the prism of a legal framework.

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