Ralph Losey has published a thoughtful commentary on the role of lawyer competence (or the lack thereof) in contributing to many of the problems identified in the countless court decisions chastizing one party or another (or their counsel) for electronic discovery lapses. His post, entitled Lawyers Behaving Badly, is worth a read.
There is no question that many, many lawyers are grossly under-equipped to interact with corporate clients maintaining large and sophisticated IT systems and that they must rely upon (1) the clients to give the right answers when asked about relevant documents and systems and (2) their instincts to never trust the first answer they are given. Although the situation is improving, most corporations have not structured their IT systems for litigation; rather they set them up in a way that makes sense for doing business. This fact just increases the challenges counsel face in meeting the exceedingly high standards of performance set by the courts.
Countless seminars teach lawyers about the law of e-discovery but few teach the technology of e-discovery. That is where the shortfall exists.
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