Post Process

Everything to do with E-discovery & ESI

The EDD Hot Potato…lands at Counsel’s feet

Posted by rjbiii on December 16, 2007

We have blogged about the fact that many corporate law departments try laying the responsibility for Electronic Discovery projects at the feet of the IT staff. The post was partly motivated by this article. Yet, and we have mentioned this as well, case law indicates that it is up to the attorneys, and not the IT technicians, to properly manage the process. As Reed Smith’s Janet Kwaon and Karen Wan state in a new article, counsel delegates this responsibility at his or her own peril:

[I]n the current climate, given the interplay between ethical obligations and standards for professional conduct and these e-discovery requirements, attorneys may be surprised to learn that inattention to e-discovery may not only work to the detriment of clients — it may lead to professional malpractice or the imposition of sanctions on counsel.

In other words, pointing the finger at IT may not allow counsel to shift liability. And the problem is, there really is no easy fix:

The duty of a party to locate and produce all materials responsive to discovery and counsel’s oversight obligations are nothing new to the discovery process. What is new, brought on by the staggering volume of data and the complexities associated with their management, is the broad array of possible pitfalls and the ability to reveal mistakes and outright gamesmanship through the often inerasable trail of electronic evidence.

We have noted the complexities associated with electronic discovery before:

[E]lectronic discovery requires an understanding across several disciplines. Law, IT, records management, and compliance are some of those areas of knowledge from which any discovery team should draw. It is difficult for any one individual to have sufficient knowledge across all these areas, so communication between experts from these professions becomes important.

Furthermore, we have also advised readers that the selection of an EDD vendor is a critical point in any complex discovery project:

It is my view that the process used to select a vendor (or vendors) is one of those key points of time in the litigation, with respect to discovery. A thorough vetting of a vendor’s capabilities, technology, experience and reputation is essential to defending that decision in the future should the need arise.

So what can attorneys do to avoid some of the pitfalls of EDD that we have previously spotlighted? Well,

  • Take Discovery seriously. I mean it; stop laughing.
  • Learn the case law. Use our Case Bibliography as a starting point.
  • Understand the basic technical concepts (ask experts you hire, or plan to hire, about their methodologies).
  • Negotiate the 26(f) conference in good faith; and prepare for it as thoroughly as you would for a deposition, or hearing before the judge.
  • In-house counsel should learn the basics of their company’s IT infrastructure; outside counsel should assess both their own clients’ data enterprise, and that of the opposing party.
  • Hire EDD vendors and experts by thoroughly vetting the candidates. Remember, price is not everything.

Oh. One more thing. Read my blog!

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