When the Stagehand Steals the Spotlight: An E-Discovery Cautionary Tale

On June 1, J-M manufacturing Co. (“JME”) filed a legal malpractice case against a highly respected litigation law firm.  The complaint alleges that the law firm was negligent in its representation because the law firm failed to supervise a team of contract attorneys and carelessly released thousands of privileged documents that should have been withheld.

I have no independent knowledge of the parties or the underlying facts that gave rise to this legal malpractice case. In addition, I have no reason to believe that any of the allegations made in the plaintiff’s complaint are meritorious or that the plaintiff will eventually prevail. It could very well be that when the law firm files its response, and more facts are brought to light, that the plaintiff’s malpractice claim is dismissed.

But regardless of who wins this malpractice case, the law firm needs to take responsibility for at least one major blunder: allowing issues of electronic discovery and document disclosure to overshadow the merits of the original suit. Somewhere along the line, the attorneys lost sight of the fact that it was their job to focus on not only the alleged violations of the Florida False Claims Act, but also to devote real time, attention and expertise to the collection, processing, review and production of documents. These days, litigants are required to spend a substantial amount of their litigation budget on discovery. The costs associated with larger cases have become so extreme that clients and law firms are cutting corners everywhere they can.  The examples of waste and incompetence in the field of discovery are too numerous to mention.  Naturally, electronic discovery is a prime target for cost cutting. But one area in which you always get what you pay for is in the supervision of document review.

Clients have a right to expect, and should demand, the highest quality legal representation.  It is not enough for law firms to appease clients by cutting costs through the use of contract attorneys whom they do not properly train, track or supervise.  As attorneys, we have an obligation to our clients to staff our cases with competent professionals at reasonable rates.  It is also the responsibility of the attorney of record to personally supervise and take responsibility for the work of all members of his or her legal team, whether they are permanently employed or hired on a contractual basis. This supervision includes the creation and adherence to a strict protocol for the review and production of documents and systematic, detailed reports to the client.  Too often law firms neglect their responsibilities in the area of discovery and document production because it is mundane, expensive, difficult, or simply unglamorous.  Perhaps the only task less desirable then executing a diligent document production is defending oneself in a legal malpractice claim brought by a former client.

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