In the last month we’ve seen one, then two, and now three interesting, and completely expected lawsuits. I’m talking about the class actions against the federal government for the loss of a data drive containing the personal information about student borrowers.

As a former student loan holder, I am understandably upset about the data breach. And as a lawyer, I have a fairly good understanding of the litigation process. However, as a solicitor, I definitely have a bias against litigation – so take these comments for what they’re worth. IMHO, these lawsuits are dumb.

I think that someone should be held accountable, remediation should be made available for any damage that results from the breach, and steps should be taken to ensure that it never happens again. But these lawsuits almost guarantee that none of that is likely to happen.

Firstly, there is no evidence that any of the lost data was discovered by anyone, or has been used for any nefarious purpose. There is no actual harm. Some might argue that the lawsuit preserves the plaintiffs’ rights in the face of the Limitations Act should we later find out that identities have been stolen or something similar. I would argue that in the absence of an actual harm, the limitations clock hasn’t even started ticking yet.

Now instead of the government having a meaningful and transparent investigation into the mishap, we will have two separate and biased investigations, both protected by some degree by litigation privilege. And instead of being motivated by noble public policy objectives, the government’s investigation will be motivated by the desire to avoid legal liability and a fat payout from a skinny budget account.

Ultimately any damages, if any, will be paid out of taxpayer money. The government department responsible for the breach doesn’t have any money other than that allotted by taxing the very people who are behind the class action in the first place. In a best case scenario, the plaintiffs may get a marginal payout that exceeds their tax contribution by a pittance. The rest of us will be paying for it as well. The lawyers stand to do much better of course…

There are a lot of very good reasons for litigating. The courts offer remedies ranging from monetary to reputational to purely emotional – and many times the courts are the only place where these remedies can be found. When parties are wronged and the search for a remedy becomes intractable, then the legal system, flawed though it may be, can provide some great opportunities for real justice.

But in many cases, litigation can also completely subvert the available dispute resolution process. It can make people clam up, it can make information disappear, and it can add an emotional element that make some remedies completely unavailable.

A good lawyer should know when to use which tool and should advise clients accordingly. Certainly there are times when an individual may wish to proceed with a lawsuit, contrary to the advice of counsel, but I think that is rare, and I don’t think that is the case with these class actions. Bad lawsuits waste valuable court resources and they give good lawyers a bad name. Hopefully these ones will fizzle out and we can get back to using the courts to address serious issues.

Scott R. Young