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Archive for September 30th, 2007

Lawyers charge a lot for discovery, and aren’t even very good at it

Posted by rjbiii on September 30, 2007

So says an article posted by Forbes.

Corporations are evidence machines, generating terabytes of electronic documents, e-mails and digitally recorded phone calls each year. Lawyers try to sift through all this dross in search of the smoking gun that can determine the outcome of a case. But, so say studies by library scientists and others, the lawyers aren’t very good at sifting. Worn down by the anesthetizing process of flipping through thousands of digital images a day, they miss as much as they find. That’s where a San Francisco company, H5, comes in. “Our work is to discover the ideal narrative to walk into court with,” says Nicolas Economou, 42. “We give you the bullets designed to win.”

The provocative headline, however, merely dissolves into an article that reads like a press release for H5, and uses examples that are in reality no more than straw men. The comparison of their automated search techniques with “eyes on” review done by a legion of attorneys is not considered a true measure for any searching and filtering technology. Or at least, it shouldn’t be. Comparisons these days should be about different technologies. This is difficult, because few software companies in the industry are secure enough to allow an objective party to compare applications and publicize benchmarks. But I already know any set of automated methodologies is better, faster, and more efficient than a thousand contract attorneys manually reviewing every document.

Now, this doesn’t mean that I’m happy with the state of technology in the industry. Far from it. Maybe H5 has a great solution. I’m not familiar with it. I agree, as well, that attorneys aren’t good at using methodologies developed and (for the most part) used by database gurus, records managers, and librarian scientists. As we’ve posted before, electronical discovery brings the need to access knowledge from across several disciplines. Attorneys often drive the process, and for good reason. For a large or complex project to be successful, however, those attorneys trying to manage the project need to know when to rely on someone else.

[HT: DataKos Blog]

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E-discovery Pitfalls: What a Tangled Web we Weave…

Posted by rjbiii on September 30, 2007

The second installment in our series on E-Discovery Pitfalls. has posted an article in which a team of lawyers is now trying to justify their management of discovery project gone wrong:

Attorneys who once represented Qualcomm Inc. in its ill-fated federal patent case against Broadcom Corp. have asked a judge to pierce their client’s privileged communications.

With the threat of formal sanctions bearing down on them, lawyers at Heller Ehrman and Day Casebeer Madrid & Batchelder — Qualcomm’s former litigation counsel — are asking for a rare exception to privilege so they can explain to the judge how their side failed to produce hundreds of thousands of relevant documents during discovery in the San Diego case.

Qualcomm, citing privilege, has refused to produce any evidence about the discovery error. Magistrate Judge Barbara Major has ordered the attorneys to show cause at an Oct. 12 hearing as to why they should not be sanctioned. Now, in advance of the hearing, many of the outside counsel have hired their own lawyers and have been trying to find a way to explain what happened.

(emphasis added)

Obviously, this is an ugly situation for all parties, and it looks to get uglier. Lifting privilege is one of those actions necessary to examine an attorney’s management of a case, and is an element in bar malpractice suits. All the elements of a worst case scenario seem present with respect to a lawsuit: unhappy clients, their former attorneys who find themselves threatened by a deadly triple-threat of sanctions, malpractice actions, and state bar proceedings. Now, whether the attorneys are responsible or not is something that will only come out with further examination, although there is ample case law that states that ultimately the buck stops with counsel. However, an attorney doesn’t actually physically collect the data, so counsel’s responsibility is far from absolute.

How did we get here? To find out, let’s reboot and start from the beginning.

Read the rest of this entry »

Posted in E-Discovery Pitfalls, Sanctions | Tagged: , | 1 Comment »