Attorneys have by and large overcomplicated something that need not be daunting at all – eDiscovery. By attempting to avoid developing a little expertise in managing electronically stored information (ESI) like emails, documents, spreadsheets, etcetera. Attorneys unwittingly fall prey to the “Magic Bullet” syndrome.
Working with eDiscovery ESI doesn’t need to be complicated, difficult, or expensive. A simple understanding yields capable management of this part of litigation. But legions of otherwise capable attorneys still avoid the basics of eDiscovery by relying on vendors who claim their software and/or hardware constitute the magic bullet that will give the law firm defensibility in the high-risk area of due diligence. Remember, there is no defensible software or hardware; only a basic protocol that speaks to the law and issues of defensibility is defensible.
Are you a licensed soothsayer?
I cannot share with the reader how many times I have heard over the years from skilled litigators, “Do nothing on this case with this eDiscovery stuff, it is going to settle and I do not want to waste the client’s money.”
When I give a CLE (as I do about once a month throughout the year), I always share with the audience, “If I had a dollar for every time I have heard this throughout my 18-year association with law firms, I could retire now.”
When I give a CLE (as I do about once a month throughout the year), I always share with the audience, “If I had a dollar for every time I have heard this throughout my 18-year association with law firms, I could retire now.” The legendary proclivity for attorneys to “know what is going to happen in this case” has no place in the world of eDiscovery.
Due diligence obligations begin immediately with the anticipation of or filing of litigation. Much of the damage that can occur at the very outset of a case cannot be remedied later when the case happens to stay around and actually proceed to litigation. You are a licensed attorney with due diligence obligations, not a licensed Soothsayer. Being wrong on this not only shatters your crystal but may also shatter your malpractice premiums!
Don’t let the tail wag the dog!
As far back as I can remember from my days at Spotts Fain Law Firm in Richmond, Virginia, Brian Adams, Chair of our eDiscovery Department, used to respond to questions from his colleagues about not wanting to spend any time on eDiscovery in a case by telling them, “That is why we are here! To help you focus on the merits of your case and not let it become about eDiscovery.”
When litigation, or its anticipation, is triggered, by either your client or an adverse party, there is an immediate obligation to manage due diligence in preservation of potentially relevant information. It does not begin with the receipt of Discovery, as so many attorneys still seem to think! Not to manage this due diligence creates an exposure at the outset of the case, one that can develop into a distraction from the merits and become the proverbial tail that wags the dog!
About Author: Michael Yager
Michael Yager is an expert in eDiscovery, a published author, speaker and trainer on compliance with state and federal eDiscovery protocols. Michael has spent over 20 years in eDiscovery support. If technical knowledge of standards is what you need, Michael is your resource! Michael brings to RDI a vast knowledge of eDiscovery — the ins and outs of day-to-day issues with ingestion, culling, production and review. Michael is a graduate of The College of William and Mary. His experiences include serving for the Department of Defense, on the corporate staff of Bell Howell Corporation in Chicago, and in law firms.