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.
Showing posts with label counsel. Show all posts
Showing posts with label counsel. Show all posts
Monday, September 29, 2008
Monday, August 25, 2008
An EDD Dilemma
Tom Allman, senior stateman of the EDD world, writing in Daily Report Online, observed that
"Recent decisions in Qualcomm v. Broadcom—sanctioning party and counsel for discovery misconduct and referring counsel to state bar and remanding for further proceedings—have thrown into bold relief the complicated issues of electronic data discovery compliance." Indeed, this is just one manifestation of the growing crisis -- yes, crisis -- in discovery and case management in federal courts. Court are imposing broad and sometimes unrealistic burdens on house counsel and outside counsel, seemingly often requiring that every "haystack" be searched to find the discoverable "needles".
In the paper world, it was sufficient to identify the custodians who might have relevant documents, locate their file cabinets, and conduct a reasonable search to find potential evidence. In the electronic world, those file cabinets are often immense, filled with hundreds of thousands of documents. Short of eyeballing each document, can it be safely said that "all" relevant documents have been found?
Greater balance is necessary if we are going to prevent the system from collapsing under its own weight.
"Recent decisions in Qualcomm v. Broadcom—sanctioning party and counsel for discovery misconduct and referring counsel to state bar and remanding for further proceedings—have thrown into bold relief the complicated issues of electronic data discovery compliance." Indeed, this is just one manifestation of the growing crisis -- yes, crisis -- in discovery and case management in federal courts. Court are imposing broad and sometimes unrealistic burdens on house counsel and outside counsel, seemingly often requiring that every "haystack" be searched to find the discoverable "needles".
In the paper world, it was sufficient to identify the custodians who might have relevant documents, locate their file cabinets, and conduct a reasonable search to find potential evidence. In the electronic world, those file cabinets are often immense, filled with hundreds of thousands of documents. Short of eyeballing each document, can it be safely said that "all" relevant documents have been found?
Greater balance is necessary if we are going to prevent the system from collapsing under its own weight.
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