E-Discovery Malpractice – Probably More Widespread Than Most People Think

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Let’s start with this:  McDermott Will & Emery is a good law firm with good lawyers.  I don’t work for McDermott, and, in fact, don’t recall ever having worked with McDermott, but I have no hesitation in saying this.  No firm grows to be a multi-national, 1,000 attorney firm without being good.  So, what about all the recent press surrounding a malpractice case against McDermott for alleged failures in managing an e-discovery case resulting in the inadvertent disclosure of over 3,000 privileged documents?  No comment.

That was me, not McDermott, though I think they refused to comment either.  What I mean is that I am not going to comment on the merits of that case.  What I will comment on is this:  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.  Sure, e-discovery is an outgrowth of the rules of civil procedure and every litigating attorney needs to understand the rules.  But e-discovery goes far beyond the rules.  It is one thing to understand that there are different possible forms of production permitted for electronically stored information under Rule 34, and quite another to know how to effectively and defensibly identify, preserve, collect, process, review and produce ESI.  The layers of complexity are many.  Indeed, I would argue that there are multiple disciplines within the field of electronic discovery.

Consider that computer data exists in hundreds of different formats in thousands of different information systems, and that those numbers increase just about every day.  Not even IT professionals pretend to understand all of the different information systems that exist in a single company.  Do we really expect every trial attorney to have greater expertise and understanding than the professionals that work in the field every day?  Yet, that expertise is often required in developing processes for identifying, preserving and collecting ESI.  Similarly, the knowledge required to develop repeatable business processes that must be executed by a diverse team of in-house professionals including IT.

The same is true when it comes to data processing and document review, particularly in large cases.  A large document review is, by definition, a large project requiring significant project management skills.  In addition, you will need people that understand and can define the data processing requirements and work effectively with a data processing vendor or the in-house application operators to resolve issues.  Facility with the development and execution of search strategies is critical, as is good, legal judgment.  In short, this is a complex, high-risk task that requires specialized skills and experience.  It is not something one does once a year and gets good at.

So, I can’t comment on McDermott, but I can say this with absolute certainty: Malpractice claims are just one of the possible consequences of practicing in a complex area without the requisite expertise.  Loss of client goodwill, damaged reputations for lawyer and firm alike, monetary sanctions – all of these are the dancing partners of those that believe that e-discovery is something that every litigator knows how to do.

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