With electronic discovery and document review playing a significant role in litigation, the search for a more efficient and cost-effective approach to controlling cost and managing cases is paramount. Advances in technology and the use of electronic-discovery experts can reduce the number of documents requiring review on a case-by-case basis. Using both technology and experts in the initial stages of the litigation process results in a more concise and cost-effective review, specifically, the use of experts with both subject-matter expertise and review experience.
E-discovery entails many players with expertise in multiple disciplines including identification, preservation, collection, processing, review, and electronically stored information (ESI) production. With the advance of technology and the changing rules of civil procedure such as the broad and varied interpretations of Federal Rule of Evidence 502 (FRE 502), no one is immune from sanctions and malpractice. The case of J-M Manufacturing Co. Inc. v. McDermott Will & Emery, filed on June 2, 2011, in Los Angeles Superior Court (Case BC462832) is a good example. The central complaint of this suit is the allegation that McDermott failed to properly supervise its staff attorneys and the electronic-discovery efforts of its client J-M Manufacturing, which resulted in the inadvertent disclosure of privileged information. Additionally, the suit was amended to include that the contract attorneys negligently performed their document-review duties. McDermott produced 250,000 documents, which included almost 4,000 privileged documents. This lawsuit serves as a good illustration of what can happen when counsel fails to be realistic about what is required to oversee a defensible e-discovery process.