George Smiley is the rotund, perpetually cuckolded, but brilliant spymaster at the heart of many of John Le Carre’s finest Cold War spy novels. He’s on his way to becoming a cinematic icon, too, having now been played (in separate films) by Rupert Davies, Alex Guinness, Denholm Elliot, and now Gary Oldman (in a performance that rivals Guinness’s finest), in the excellent recent release of Tinker, Tailor, Soldier, Spy.
Without spoiling its plot, I will mention that by the end of Tinker, Tailor, Soldier, Spy, the Circus (the British Secret Service) is in disarray. The mole that George Smiley uncovers, who was run by the Soviet mastermind Karla, had stopped critical missions. None of their information is trustworthy, because they don’t knew who or what has been tainted by the mole.
So, at the beginning of the next novel, The Honourable Schoolboy, Smiley decides to take some backbearings.
[Smiley’s] premise was, that in briefing [the mole], Karla was exposing the gaps in Moscow Centre’s knowledge; that in ordering [the mole] to suppress certain intelligence which came the Circus’s way, in ordering him to downgrade or distort it, to deride it, or even to deny it circulation altogether, Karla was indicating the secrets he did not want revealed.
‘So we can take the backbearings, can’t we darling?’ murmured Connie Sachs, whose speed of uptake put her as usual a good length ahead of the rest of the field.
‘That’s right, Con. That’s exactly what we can do,’ said Smiley gravely. ‘We can take the backbearings.’ …
By minutely charting [the mole’s] path of destruction–his pugmarks as he called them–by exhaustively recording his selection of files; by reassembling, after aching weeks of research if necessary, the intelligence culled in good faith by Circus outstations, and balancing it, in every detail, against the intelligence distributed by [the mole] to the Circus’s customers in the Whitehall marketplace, it would be possible to take backbearings–as Connie so rightly called them–and establish [the mole]’s, and therefore Karla’s, point of departure …"
(Identity of mole redacted.) So, what does this have to do with class-action practice? Well, British spies aren’t the only ones who can engage in backbearings. Class action practice is hardly the Cold War, but that doesn’t mean that defense counsel can’t use discovery requests to inform themselves about plaintiffs’ theory of the case (assuming they have a coherent one).
Moreover, when plaintiffs serve overbroad discovery (which they often do), well-crafted objections can help to winnow down the requests into ones that one can take backbearings from.
This is something many lawyers do intuitively. (And I’m sure many plaintiffs’ lawyers do, too.) Carefully reading subpoenas, document requests, interrogatories, and deposition questions can help a defendant learn where the plaintiff thinks her case may be the strongest, and where she may think she needs more evidence. Similarly, looking at where a plaintiff chooses to spend her resources (when that spending is visible) helps to give an idea of both the resources a plaintiff has available, and her priorities in the case. (The same operates in reverse, of course.)
Nor is discovery the only place from where one can take backbearings in litigation. As Richard Levick of the Bulletproof Blog wrote just the other day, as plaintiffs try digital recruitment strategies for class actions, corporations get early warnings of where litigation risks may arise. A potential defendant that is current on Twitter, Facebook, and getting regular Google alerts about itself will likely be able to respond more quickly to any actual litigation threats, because it can read the same requests and complaints as anyone else.
The takeaway from this should be pretty simple. Every action taken in litigation, as anywhere, leaks information. So it is always worth paying attention to what your adversary is doing. What they do about their case is often far more important than what they say.