• October 30, 2019

Being a solo civil litigator presents enormous challenges — far too many to list in this post. But one obvious one is document management.

In those eighteen letters and two simple words, there can be a horrifying and bottomless abyss for solo (or small firm) lawyers (or even large law firms or corporations).

E-discovery poses a challenge to all civil litigators in law firms of all sizes. However, as a simple matter of fact, solo lawyers face tracking a volume of documents that no single human can possibly track without help of one kind or another.

Aggravating this substantial risk considerably, solo lawyers disproportionately represent legally unsophisticated clients who might not be aware of (or might not take seriously) their obligations with regard to document collection and production. Many solo/small firm clients are “one and done” when it comes to civil litigation; they have a single sortie into civil litigation combat and they are oblivious to the rules of engagement.

They might collect (and the lawyer might produce) thousands of documents that are irrelevant; they might withhold critical documents with or without bad intent (without their lawyer’s knowledge). (“Even if [the client] could be excused for his lack of technological savvy, [client’s lawyer] is responsible for overseeing his client’s collection of documents in response to discovery requests.” (here at p. 12).

The recent sanctions order in Darmer v. State Farm (an insurance coverage claim arising from the ashes of a house fire) is a scary cautionary tale, appropriate for Halloween week.

Mr. Darmer, represented by a solo lawyer, produced over twenty-thousand documents, without bates numbers. From U.S. Mag. Judge Katherine M. Menendez’s (D. Minn.) recent sanctions order, it is clear that Mr. Darmer’s counsel did not have knowledge of what had been produced and what had not been produced. Judge Menendez found the plaintiff’s initial document productions to be “essentially nullities” — “so unusable that it was as if he made no document production at all.”

In subsequent document productions, it seems that Mr. Darmer omitted several emails that, “to put it mildly,” (here at p. 5) were damaging to his case…

Judge Menendez found “[t]he discovery misconduct and mismanagement by [the plaintiff and his lawyer]… significant, persistent, and troubling.”

How is a solo lawyer supposed to manage document discovery then?

The easiest, safest (but most expensive) way is for the solo lawyer to work with an e-discovery vendor, like one of our sponsors, Shepherd Data Services.

Data collection and production are not taught in law school. They are not normally the tasks of lawyers. Companies like Shepherd Data have the experience and expertise so that, if Shepherd Data‘s involved, document collections and productions as occurred in Mr. Darmer’s case never happen.

Mind you, with or without help of an e-discovery vendor, there is no substitute for active attorney involvement in the document collection.

At a minimum, even if solo/small firm lawyers do not hire an e-discovery vendor, we would suggest that nearly every document production in every case be (1) bates-numbered; (2) text-searchable.

Judge Menendez was extremely critical of the “massive dump of data” in Mr. Darmer’s case. If Mr. Darmer’s document productions had been bates-numbered and text-searchable, this, by itself, would not have ensured better organized productions, of course, but it would have been a step in the right direction. It would have made it easier for all of the parties and lawyers to get their arms around what was produced and what wasn’t.

In our practice, we have found Everlaw, a cloud-based e-discovery vendor, to be extremely useful for orderly document collection and production. Again, neither hiring a e-discovery vendor nor using a cloud-based e-discovery company will guarantee a flawless process.

Ultimately, there is no work-around or technological solution to recklessness or dishonesty. Whether one’s client is a single person or a large business, the integrity of a document collection or production is dependent on the thoroughness and integrity of the individuals involved. In some cases, the root cause of e-discovery disasters are not technical; they might be baked in from the get-go: flawed client intake (sometimes discoverable only in hindsight, unfortunately).

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