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Do you need a Special Counsel, just for electronic discovery?

Posted by rjbiii on September 10, 2007

The Metropolitan Corporate Counsel has an article arguing that you just might. Written by David Cohen, e-discovery counsel for K&L Gates, it states:

Unfortunately, most litigators are ill-equipped to deal with the nuances and technical complexity of e-discovery issues. No e-discovery courses are offered in law school and few litigators have extensive training or experience with regard to computers, information systems, or related fields. Some in-house and outside lawyers try to muddle through with the help of IT personnel. Others delegate the e-discovery issues to associates or paralegals who also lack the necessary expertise. In some instances counsel turn to e-discovery vendors who may lack understanding of the legal nuances or may have financial incentives contrary to client desires to minimize data collection and processing costs. Any of these approaches can lead to costly mistakes, monetary sanctions, or worse.

There is no doubt that discovery in complex cases of litigation will no longer be accomplished as it was in the past. The times, they are a changin’. I think that in complex cases, an attorney who is familiar with “e-discovery practice” might indeed be necessary. I will also add that Preston Gates (before their recent merger) had been paying closer attention to this area than practically anyone else before the term “ESI” had been coined.

Also, Corporate Counsel must be familiar with the law, and the IT infrastructure of their employer, regardless of what the case is. This is a pre-dispute measure, and is something that should be done without regard for any specific case or legal matter. And even many small cases involve electronic discovery and computer forensics issues. This means that, to some degree, all litigators must know the A-B-C’s of their EDD.

Update: Speaking of the importance of E-Discovery to the practice of law, this blurb appears in the Business section of the Worcester (MA) Telegram for Sept. 3:

The Worcester law firm Bowditch & Dewey LLP has hired Steven J. O’Neill of Monson as a partner in its Litigation and Construction Services Practice area. Mr. O’Neill also is heading a new practice area focusing on electronic discovery, document retention/destruction policies and related emerging technology issues. He was previously a member of the Construction and Government Contracts Practice Group in the Hartford office of Thelen Reid Brown Raysman & Steiner LLP. In 2006 he was appointed to the Emerging Technology Law Committee of the Transportation Research Board, a division of the National Research Council. Mr. O’Neill received a bachelor’s degree from the University of New Hampshire and a law degree from the University of Oregon School of Law.

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