I think of this whenever there are claims of attorneys royally screwing up e-discovery. It’s easy to indulge in some schadenfreude and say, “What suckers!” But truthfully, many firms — even the big, prestigious ones — are more vulnerable than they’d like to admit.
This month, McDermott Will & Emery ended up in the bright, unpleasant spotlight, because a former client sued the firm for malpractice.
Why, you might ask? The firm allegedly botched a client’s e-discovery.
Keep reading to see how the Am Law 100 firm became the e-discovery dunce du jour….
Starting several years ago, McDermott represented J-M Manufacturing Company Inc. in a whistleblower suit. Federal and state investigators issued subpoenas that eventually led to disclosure of 250,000 documents. (Side note: That’s a quarter-million documents, after culling through zillions of irrelevant files. If that doesn’t encapsulate the crappiness that is e-discovery, I don’t know what does.)
Here’s what allegedly happened next (from Corporate Counsel):
According to a lawsuit [PDF] J-M filed [June 2] in a state court in Los Angeles, McDermott produced too much — all because it did not thoroughly review the work of contract attorneys at e-discovery vendor Stratify Inc. J-M claims that 3,900 privileged documents were handed over to the federal government.
The feds gave everything to the whistleblower’s attorneys, meaning McDermott’s adversaries got almost 4,000 privileged documents. Not good. And now, the whistleblower’s attorneys won’t destroy them.
This case brings reality into contact with a few core issues that legal folk often rant about in the abstract.
First: CHECK YOU E-DISCOVERY VENDOR. Whether you like it or not, vendors are pretty much an unavoidable part of the e-discovery process. But nobody is quite sure how long of a leash they should give their service providers. After all, when push comes to shove, it’s the attorneys’ case, not the vendors’. If everything goes to hell, the vendor doesn’t get sued for malpractice.
From the Corporate Counsel piece:
The lawsuit comes amid increased use of outside vendors to tackle the rising costs of e-discovery. Stephen Gillers, an ethics professor at New York University, said while it’s understood that lawyers need to supervise vendors, the standards for that supervision remain imprecise. “This is an emerging issue because of the increase in outside service providers, especially in discovery,” said Gillers.
Second: You can’t just take a legion of contract attorneys, toss them some nickels, and lock them in a windowless room with no A/C to review documents. They require supervision, and somebody’s gotta check their work. It’s not necessarily easy to do that, but
the class of 2010 document reviewers need oversight. This holds true whether your firm is directly managing them, or if they fall under the care of a third party contractor.
Finally, and most importantly: Lawyers need to change the way they understand e-discovery.
Dennis Kiker of LeClairRyan sums it up pretty well:
E-Discovery is a discipline. Far too many attorneys in firms large and small think that e-discovery is something they can do on the side, when they are not drafting motions to dismiss an antitrust class action or preparing to depose a scientist in a patent infringement matter. Unfortunately, this is simply not true.
As Kiker says, a firm can’t grow to more than 1,000 attorneys if it isn’t good at practicing law. But dealing with electronic information isn’t getting easier. It’s becoming more complicated and more time-consuming. Firms and their attorneys need to value it like they value other important parts of their jobs.
Pawning e-discovery off to underpaid minions or outside contractors won’t cut it.
Christopher Danzig is a writer in Oakland, California. He previously covered legal technology for InsideCounsel magazine. Follow Chris on Twitter @chrisdanzig or email him at [email protected]. You can read more of his work at chrisdanzig.com.