October 23, 2018 Substantive Law

Alleged Failure to Monitor Discovery Leads to Malpractice Suit

By Onika K. Williams

Reprinted with permission from Litigation News, August 7, 2018. ©2018 by the American Bar Association. Reprinted with permission. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

An attorney’s failure to institute a litigation hold or monitor a client’s compliance with that hold may constitute malpractice, according to at least one federal district court. In  Industrial Quick Search, Inc. v. Miller, Rosado & Algois, LLP, the U.S. District Court for the Southern District of New York rejected a law firm’s defense against claims that its lawyers were not involved enough in the discovery process; the court thus found the firm liable for $2.5 million in damages related to spoliation sanctions levied on a former client. ABA Section of Litigation leaders see the case as a reminder of the importance of determining a client’s understanding of the discovery process and preservation obligations.

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