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In early June, a lawsuit accused mega-firm McDermott Will and Emery of e-Discovery malpractice, an allegation that stems from the firm's reported failure to supervise off-site staff attorneys, which in turn led to the production of nearly 4,000 privileged documents.
Though there have been few widely publicized cases of e-Discovery malpractice, if you ask LeClairRyan partner Dennis Kiker, it's a lot more common than attorneys would like to think it is.
You may have even committed it yourself.
The frequency at which attorneys commit e-Discovery malpractice is partially attributable to the vast requirements of conducting a thorough document review. With electronic information stored in hundreds of types of formats and with hordes of hidden data, Kiker admits that it's difficult for attorneys to fully understand the scope of electronic discovery.
Even so, with its pervasiveness and permanent status as part of legal practice, to meet ethical obligations, you must understand e-Discovery--both technically and legally.
According to Kiker, to prevent malpractice, you need to work with IT staff and vendors to develop proper procedures for identifying and collecting documents. You must also implement a process for double checking the work of staff attorneys, whether on-site or not.
Those who don't install such safeguards and take the time to really learn how to conduct a large-scale e-Discovery project are more likely to commit malpractice.
And what happens then?
Well, you end up sued, like McDermott Will & Emery, whose alleged e-Discovery malpractice during a federal investigation led to a situation in which the government turned over privileged documents to a whistleblower's attorney.