Recent cases involving BigLaw and eDiscovery have begun to include malpractice claims. We think the trend is just starting, but feel a prudent approach to developing eDiscovery competence (coupled with appropriate contingent measures) can help lawyers and their firms avoid the risk of malpractice.

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ILTA White Paper October 2011
Mitigating the Malpractice
Risks of E-Discovery
Joe Treese esIdence
A
t an early point in my career, I had the opportunity to myriad electronic forms found in the possession, custody and
serve on a jury. The case, a malpractice claim against control of many (if not most) of today’s litigants.
a prominent Philadelphia-area physician, concluded So how does one address the rising challenges around
when the jury found for the plaintiff, an elderly electronic evidence and keep the risk of malpractice lawsuits
woman. As a jury, we deliberated and decided at bay?
that the woman’s surgery and the follow-up care conducted by
the physician met the definition of malpractice as carefully and
painfully explained by the judge. Jury deliberation is a fascinating TheRe’s NO sTOppiNg eLecTRONic DaTa
process. An ordinary group of people, selected from all walks Much has been written about the risks and impact of
of life and with varying biases, confined to a room to decide the e-discovery in legal cases of all sizes and across the wide span
matter at hand, concluded with a reasonable verdict. of practice areas. A casual Internet search for e-discovery
Malpractice cases are on the rise, and there is a issues turns up millions of hits in cases ranging from family
fundamental change that has accelerated around the notion law disputes and class-action product liability to matters of
that potential evidence in electronic form is, nonetheless, homeland security and criminal investigations. It seems that
still evidence. From the dire warnings preceding the 2006 no facet of the legal system is untouched by e-discovery’s
amendments to the Federal Rules of Civil Procedure (FRCP), to ubiquitous nature — or without increasing media scrutiny about
the widespread discussion of landmark cases like the Zubulakes its impact. It is the unfortunate reality, however, that litigants
(1 through 4) and Victor Stanley, into current dialog about whose ESI stores are the largest and most complex — large
predictive coding and the unfathomable size (and accelerating companies — bear the overwhelming proportion of the costs of
growth) of many litigants’ electronically stored information (ESI) e-discovery, and whose e-discovery difficulties often garner the
mountains, a staggeringly pervasive problem has emerged most spectacular bad press.
— one that stands to dwarf Sarbanes-Oxley (the prior record- Just how much ESI exists in large companies is a subject
holder for information-related tsunamis). At nearly five years that has been studied and discussed extensively. Judge
and counting, there is virtually no judge, practitioner or law Scheindlin’s excellent tome, “Electronic Discovery and Digital
journal offering a view that the legal system has solved the Evidence — Cases and Materials” (co-authored with Daniel
problem of locating, retrieving and managing evidence in the Capra), distilled findings from several major studies and leading
This article was first published in ILTA’s October 2011 white paper titled “Risky Business: Walking a Fine Line” and is reprinted here with permission. For more
information about ILTA, visit their website at www.iltanet.org.

2. experts into a compelling chapter on the mind-numbing It is common for “knowledge workers,” such as engineers
size and rate of growth of corporate ESI stockpiles. Some and financial analysts, to be custodians of the crucial ESI that is
astonishing examples include: relevant to complex litigation. The risk of failing to understand how
ESI is managed (i.e., when the process is undocumented or not
• he average amount of data in Fortune 1,000 companies
T standardized) heightens the challenge of finding and controlling
grew almost 10 times from 2003 to 2007 (190 terabytes ESI that is relevant evidence, and complying with the very different
to a petabyte). requirements of the FRCP and other pertinent rules and regulations.
• he amount of new ESI generated per person (worldwide)
T
is almost 800 megabytes (about a 30-foot stack of books LaTe aDOpTiON isN’T aN OpTiON
in paper form) PER YEAR. A frequent observation from e-discovery experts is that a
significant portion — some say a majority — of their colleagues
Noted authorities like Ralph Losey help make the do not have the skills required to meet the requirements of
massive volume of ESI more understandable through practical e-discovery. The legal profession is often cited as a late adopter
illustrations, such as the 50,000 trees needed for the paper to of technology (or something less euphemistic), but compelling
print the terabyte of information commonly found on individual arguments (such as the ABA’s “Profile of Legal Malpractice
corporate computers. Claims”) illustrate the significant (and consistent) role of
No wonder, then, that lawyers involved in corporate e-discovery-related issues in attorney malpractice allegations.
litigation face enormous challenges when trying to parse a Whether gaps in the e-discovery skills of the current
vast corporate ESI collection — comprising tens of thousands population of lawyers correlate to widespread, pervasive
of terabytes on servers and workstations within the company, and severe malpractice (much of which is unrecognized and
as well as similar or larger amounts of ESI in the company’s unpunished), or simply a symptom of common procrastination
custody and control that are outside the company’s walls — in the profession, is a debate best left to responsible members
into the “vital few” (relatively speaking) dozens of gigabytes of the bench and the bar. There’s no question that litigants
relevant to a particular matter. Identifying a reasonable initial (clients) should be protected from ill-prepared or unskilled legal
set of relevant electronic information — to first, preserve it representation. After all the work required to complete law school,
(as potential evidence) and later, cull out the nonrelevant, pass the bar and find a secure position in the ever-increasingly
nonprivileged ESI through analysis and legal review — in a competitive market for lawyers, many are receiving a reality check
typical corporate environment places the litigator squarely in that there’s still much to learn.
front of the problem of ESI volume. But the call for lawyers to get skilled in e-discovery raises a
concern that lawyers might be misled into believing that some
“magic curriculum” will significantly reduce or eliminate the risk
MaNagiNg The MaNageMeNT OF esi inherent in their existing command of information-management
Unfortunately, the pure volume of ESI is often just the first (and processes in corporate settings. One of the core reasons that
frequently, less troublesome) issue in the process of managing unauthorized practice of law restrictions — that the skills and
a corporate litigant’s electronic evidence. The complexity and knowledge required to responsibly represent a client in legal
variety of ways that ESI is managed — that is, how it is created, matters is the domain of qualified attorneys — make sense is
shared, duplicated, distributed, stored, modified and deleted, in the notion that an attorney shouldn’t attempt to prematurely
and by whom — are almost always extensive and (with the demonstrate the technology acumen required of adversaries in
exception of the ESI subset actually controlled and stewarded by the cooperative environment that judges increasingly expect.
the IT organization) undocumented. For those whose interest and professional objectives lead
Individuals with identical jobs and access to the same to a deep and broad understanding of the technically complex
information frequently manage ESI in different ways. For processes of information management, the opportunity is real
instance, consider two engineers whose highly technical designs — and growing. Quality training and mentoring channels are
are commingled in a company’s next market-busting product: starting to appear, and leading jurists are urging law schools to
one who scrupulously deletes every obsolete drawing and close the gaps in their offerings, both for currently-matriculated
specification as the design evolves, while the other hoards the students and those with continuing professional training needs.
sequence of product versions for potential reuse in future projects.
This is a common scenario in most large companies, where the ESI
is “managed” by an individual or group based on preference, level TiMe TO geT skiLLeD
of experience, familiarity with toolsets and techniques from prior In the meantime, wise attorneys recognize that the issues of
projects (or jobs) and a host of other factors. e-discovery (and the skills required to meet them) are likely
This article was first published in ILTA’s October 2011 white paper titled “Risky Business: Walking a Fine Line” and is reprinted here with permission. For more
information about ILTA, visit their website at www.iltanet.org.

3. well beyond the scope of CLEs and a three-day seminar. They
are seeking and incorporating the experience and wisdom of
senior IT professionals while they develop their own skills and
knowledge.
The debate over what level of skill is “enough” (versus
the universally-discounted notion that perfection is required)
appears far from complete, potentially providing some (if not
unlimited) breathing room to get skilled. Until then, avoid the
“unwise practice of IT” until you’ve accurately identified — and
mitigated — your risk of e-discovery failure and can protect
yourself from possible malpractice claims. iLTa
JoE TREESE is the founder of ESIdence, a consultancy addressing
the ESI needs of in-house and outside counsel engaged in corporate
litigation. Leveraging over 30 years of experience as an in-house
IT executive and information-risk consultant, Joe assesses clients’
information-management practices and identifies e-discovery risks
and gaps in specific cases. Using established IT and legal industry best
practices, combined with emerging case law, Joe provides risk-based
e-discovery client profiles (including risk-mitigation recommendations)
for corporate attorneys and IT leaders. He can be reached at
ESIdence@ESIdence.com.
This article was first published in ILTA’s October 2011 white paper titled “Risky Business: Walking a Fine Line” and is reprinted here with permission. For more
information about ILTA, visit their website at www.iltanet.org.