Post Process

Everything to do with E-discovery & ESI

Electronic Discovery is a Risky Business

Posted by rjbiii on October 3, 2007

Risky, at least, according to an article posted by Law Technology Today [free registration required to view]. DLA Piper partner Browning Marean writes of five risks associated with e-discovery:

  • The duty of competence;
  • Litigation Hold risks;
  • Ubiquitous Information Risks;
  • Budget and Project Management Risks;
  • Vendor Risks

I enjoyed the article, and think it provides an accurate, if very brief, synopsis of major risks associated with EDD. I especially agreed with the inclusion of the first and last of the items on the list, although all of them are valid. Model Rules of Conduct mandate that counsel provide competence and diligence during representation. That’s not just in the courtroom, but in all phases, including managing the process of preparing to go into the courtroom. That process includes having a certain level of knowledge on discovery rules, law, local court rules, as well as technology used for storage by clients and vendors to move data from collection through review to production.

Know your vendors and consultants. As I’ve urged in previous posts, use a solid process to select your vendors, and then monitor their progress during the project. Also, attorneys shouldn’t interfere with processes about which they know nothing. Before trying to drive, make sure those whom you trust are in agreement, or that you can at least articulate a solid counterpoint with respect as to why you went in a direction opposed by your expert.

Mr. Marean concludes with:

The growth of EDD and it attendant challenges represents one of the greatest tectonic shifts for the profession in the last 40 years. It will be interesting to watch when the law of unintended consequences intervenes. No crystal ball will provide clear answers, but the staggering costs associated with e-discovery are bound to have a profound effect on litigation. The challenge for bench and bar is to provide access to the courts at a reasonable cost. Right now the possibility of extortion by discovery is too real a prospect.

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