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Professional Malpractice for eDiscovery Shortcomings?

Created: 09 Jun 2011
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Blue chip law firm McDermott Will & Emery was sued last week for alleged eDiscovery shortcomings.  http://bit.ly/iiKVO1 The complaint (see http://bit.ly/lnEk6E) alleges that the firm should be held liable for the disclosure of 3,900 attorney client privileged documents since it "did not thoroughly review" the privilege review performed by its contract attorneys.  See ¶¶ 9-10.

Regardless of the allegations' merits, this lawsuit should serve as a wake-up call to firms and companies who rely on contract attorneys, particularly for their privilege document reviews.  Privileged materials often contain extremely sensitive information that must be safeguarded against disclosure.  Privilege reviews therefore merit heightened scrutiny.

Without such care, the protections surrounding the attorney client privilege will continue to erode.  Technological innovations, including social media, email and the cloud, are already inviting additional scrutiny to privileged communications.  See In re Vioxx Products Liability Litigation, 501 F.Supp.2d 789 (E.D. La. 2007).

To prevent those protections from eroding any further, clients (and the courts) will likely expect their counsel to go beyond “limited spot-checking” of their contract attorneys’ privilege reviews.