Isaac Asimov was amazing. Brilliant, inventive, and prolific, he coined the terms “robotics” and “positronic” (later used by Star Trek with full credit to Asimov). He also invented the Three Laws of Robotics (subsequently turned into four laws by the great robot Giskard). He wrote or edited over 500 books, notable among them the I, Robot stories, the Foundation Trilogy, and the Robot series (featuring robot detectives). He was also a professor of biochemistry who wrote non-fiction books as well.
I first read his Robot series as a kid, after I finished the John Carter books. I knew Asimov loved science and science fiction, but I didn’t realize how much he loved mysteries until just recently.
Last time I was at the library I found a book he wrote much later in life, Tales of the Black Widowers (followed by The Return of the Black Widowers). These books were a compilation of short stories, all featuring a group of six men who would gather in a private dining room for dinner. To each dinner they would invite a guest with a mystery to pose to the assembled audience.
As a lawyer, this format is familiar to me: a guest is on the hot seat, questioning is usually led by one of the dinner’s members, with objections and arguments raised by other attendees. Each dinner would even be hosted by one of the members, who could rule on the other attendees’ objections. These dinners could be depositions or courtroom testimony.
The Tales of the Black Widowers and my profession have more than just a similar format in common. In one story regarding a supernatural event, the guest quotes the famous Sherlock Holmes line: How often have I said to you that when you have eliminated the impossible, whatever remains, however improbable, must be the truth. Judges (at least thirteen of them), have also quoted this line in addressing cases before them, sometimes skeptically. For example, in one case, the ALJ whose decision was being reviewed, had said, “There remains however, grossly improbable, uncontradicted testimony, which on the admonition of Sherlock Holmes, must be the truth.” See Walgreen Co. v. N.L.R.B., 509 F.2d 1014 (7th Cir. 1975).
Of course, Asimov actually took this opportunity to show that Holmes’ admonition falls apart if the witness is lying. After the guest had convinced all of the Black Widowers that his supernatural story was true (because the supernatural was only improbable, not impossible), the waiter had to call the guest out as a liar. In an Afterword to that story, Asimov explained that he wrote this story because, in his words, “As far as I am concerned, if, when everything impossible has been eliminated and what remains is supernatural, then someone is lying.”
The same is true in the law, particularly in e-discovery. Parties will often claim that discovery obligations or requests are impossible. See, e.g., Ingersoll v. Farmland Foods, Inc., 2011 WL 1131129, at *19 (W.D.Mo.,2011) (“Defendant indicates that it would be impossible for it to search, review, and then produce documents by February 18.”). But when parties lie, the system (just like Sherlock’s quote) doesn’t always work. In the e-discovery world, in particular, there have been some notable cases where parties have lied about their discovery efforts. See, e.g., Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 531 (D.Md. 2010); Rimkus Consulting Group, Inc. v. Cammarata, 688 F.Supp.2d 598 (S.D. Tex. 2010).
In Rimkus and Victor Stanley, of course, the lies were caught out. But Asimov’s supernatural short story has a reminder for all lawyers (and finders of fact). While Sherlock’s quote is still good to keep in mind, we can never forget Asimov’s point: Eliminate the impossible, consider the improbable, but always remember to question the source itself.