Ride the Lightning
Cybersecurity and Future of Law Practice Blog
by Sharon D. Nelson Esq., President of Sensei Enterprises, Inc.
E-Discovery Extortion
September 28, 2011
In response to my last post about Ralph Losey's keynote thoughts in Salt Lake City, I received a thoughtful comment from lawyer Jill McIntyre of Jackson Kelly. She wrote:
Lawyers may unintentionally become e-discovery extortionists through efforts to vigorously represent their clients. We know of a “more senior” local lawyer (Lawyer A) who hired a young, local consultant (Lawyer B) to help discover a case against a large corporation. Lawyer B’s role, apparently, was to ferret out every place in which electronic evidence might be found. But Lawyer A, who did not know how properly to inquire about the corporation’s information systems or to identify key players in the case, had no idea how onerous her hold and production demands were. When challenged for overreaching, she was offended and flummoxed, convinced she had done all the right things by hiring a consulting expert.
Counsel of record must not permit an e-discovery consultant to usurp his or her role, which includes an obligation to assess proportionality. The disconnect remains, not only between lawyers and IT specialists but also among lawyers. Older or tech-averse litigators who are going to rely on other lawyers to shepherd their e-discovery efforts must at least understand what they do not know.
Thanks for writing Jill. I do think ignorance is often at the root of some of the most absurd e-discovery requests. And that just underscores the need for lawyers to get educated about what they do not know!
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