• August 26, 2015

DataHypothetical: adversary in litigation asks for your client’s “ESI” (electronically stored information) related to the lawsuit and proposes that certain search terms be run on your client’s computer systems.

Your client tells you that it has already given you all responsive documents in hard copy so that any such searches would likely be duplicative.

Relying on the client’s statement, the lawyer invites the adversary’s e-discovery vendor to “come on in” and run the proposed searches. The lawyer makes sure there is a “claw-back agreement” so that his client will be able to demand return of any inadvertently produced privileged documents.

It turns out, however, that the search terms are extremely broad, that a huge amount of non-responsive ESI is produced, including information on highly confidential product plans. This is in litigation against a direct competitor.

Who is to blame for this, the lawyer or the client?

Does it make any difference whether the company is a high-tech company or a low-tech company?

I think the wide-spread consensus is that, while both the lawyer and the client bear some responsibility, the lawyer is by far more to blame.

Analogize to the criminal defense lawyer whose client says, “I have done nothing wrong,” and, based on that, the defense lawyer advises the client to allow a police search of his home without a warrant (where the police find something incriminating). By simply ignoring what many would see as a high risk based on a client’s word (which might be completely uninformed), the criminal defense lawyer has probably breached the applicable standard of care. (I am not a criminal defense lawyer, so I qualify my opinion a bit.)

Whether we’re in the criminal sphere or the civil sphere, clients look to their lawyers for guidance and advice. And they are vulnerable. And they often do not know they are vulnerable. Vulnerable to what? They might have no clue. The lawyers are supposed to be the knowledgeable ones.

A client might say, “They can go ahead and run ESI searches. They’ll just find the same things we have already given them…,” but the lawyer should at least have some inkling, some knowledge or experience, that such toss-off comments by clients can be¬†wrong and the consequences of taking them completely literally could be catastrophic.

This is deeply frustrating to both lawyers and their clients because the clients want the fastest, cheapest, least disruptive, solution.

Clients often put their lawyers under great pressure in light of the punishing expense of litigation. But protecting a litigant’s interests in civil litigation will inevitably impose expense. If done on the cheap, it can ultimately be the most costly approach of all.

 

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