Defending The Digital Workplace

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E-Discovery and Zombie-Lawyers

In the recent genre of zombie horror movies, the living are infected with a viral agent that transforms them into automations that terrorize and wreak havoc on the living. Ultimately society faces an apocalyptic battle against mobs of lumbering, mindless, flesh-eating, creatures.

It is not uncommon for e-discovery to act as the catalyst for transforming once living, thinking attorneys (often very bright attorneys) into unthinking, legal automations that wreak havoc on e-discovery. But whereas  the infected zombies devour the living, zombie-lawyers devour resources, wreak havoc on litigation strategy, and even threaten the ethical mandates upon which the legal profession is based upon.

The court dockets are littered with examples of e-discovery disasters. And certainly among those disasters are circumstances that are beyond the control of attorneys, even exceptional attorneys. But equally true is that a zombie-lawyer was likely the cause behind a number of these disasters. In reviewing court opinions and based on my own experience going back to 2001 in responding to e-discovery issues, this conclusion is justified.

In that time, I’ve worked with a number of great attorneys. But no matter how competent or exceptional those attorneys were in their respective legal corners of the universe, e-discovery was a new area of law for them. Some understood this fact and either got up to speed or relied upon those that had put the time into knowing this area. Others did not.

For those that did not, there were generally two explanations:

First, “conducting” e-discovery was not justified in light of the amount of the dispute and the insurance carrier is not going to pay for that. This explanation was given at a time where there was no option (as if there ever was) to elect to not conduct e-discovery. Similarly, it was explained that litigation strategy consist of working up a litigation file to position it for settlement. There is, however, no “sliding scale” for complying with court and ethical requirements. A $25,000 dispute requires the same adherence to court rules and ethical requirements as a $2.5 million claim.

But what the zombie-lawyer fails to recognize is that technology and e-discovery expertise can significantly bridge the gap between meeting ethical and legal requirements and efficiently conducting discovery. Ironically, these same zombie-lawyers make decisions that routinely increase the amount of litigation cost. Even more troubling are the decisions that could result in a doomsday litigation scenario of spoliation, adverse inferences, and even outright default judgments.

The other explanation is more of a refusal to accept change or acknowledge that e-discovery required a new knowledge base. In this regard, I’ve worked with attorneys who refused to abandon WordPerfect because they didn’t want to learn MS Word. In one instance, an attorney would create documents in WordPerfect scan to PDF, email to the client, have the client make handwritten changes, email/fax back those changes, and then revise the original WordPerfect file.

In another instance, I specifically used the Federal Rules to request that responsive documents be produced in their native digital format or a reasonably usable equivalent to be agreed upon by counsel. The agreement was easily reached and the digital equivalent of over ten-thousands of pages were produced in the initial production. Despite the fact that the production was fully searchable and indexed, a major problem arose with the production.  The problem, however, was not between opposing counsel. Instead, the Senior Partner was upset and annoyed to the point of using expletives because he “liked” paper and insisted on sticking with paper. This instance is further noteworthy in that this same attorney would put in hours to learn a file or a relevant substantive area of the law to adequately defend the claims. Unfortunately, hours were mindlessly consumed first printing out the digital production and then actually reviewing, page-by-page, the production.

Regardless of the reason, when it comes to e-discovery, it cannot be ignored because it is inconvenient or expensive. It also cannot be simply a matter of going through the same motions.

Enjoy Halloween this year and try to catch Night Of The Living Dead – the quintessential and classic zombie movie.

Jason Shinn provides e-discovery consulting for business organizations with a focus on litigation preparation, risk reduction or elimination, and attorneys. He has helped organizations save hundreds of thousands of in e-discovery defense costs.  He has  been asked to consult with a major insurance carrier in creating an e-discovery endorsement and retained as an e-discovery expert in state court litigation. More information is available at http://www.ebusinesscounsel.com.

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Written by Jason Shinn

October 29, 2010 at 5:02 pm

Posted in Uncategorized

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