In big e-discovery malpractice case, role of contract attorneys likely to be key
Contract Attorneys
There are thousands of them. They work primarily for legal staffing, consulting and even some technology firms. Their ultimate client is usually a company or other entity that finds itself in litigation handled by a law firm outsourcing laborious, but necessary processes.
The law firm is under a dual duty. First, they must comply with the e-discovery rules that apply in all federal courts and some state courts. They must also supervise the work of the contract attorneys to assure that it is well done and that the client is well-served and protected in its privileged documents.
Contract attorneys, the outsourced legal labor often assigned extensive electronic document reviews, perform routine tasks for modest pay. They plug away at litigation support chores, and they usually manage to keep a low profile.
Now, however, in the first known legal malpractice suit arising from alleged mishandling of electronically stored information (ESI), 970-lawyer powerhouse McDermott Will & Emery faces claims it failed to adequately supervise contract attorneys it hired for a client’s large-scale document review.
Claiming “fraudulent,” “malicious” and “despicable” behavior -- allegations that McDermott has denounced as baseless -- plaintiff J-M Manufacturing’s complaint raises issues over the competency, cost, and adequacy of the firm’s supervision of outsourced attorneys.Under California procedures, which apply in this California Superior Court case, McDermott must answer the complaint within 30 days after it is served.
Los Angeles-based J-M alleges McDermott, through its hired help, mistakenly turned over 3,900 privileged documents to adverse parties while defending J-M against civil False Claims Act charges. The divulged data has yet to be returned by the "relator" in the case, who had obtained them from the US Department of Justice. Federal prosecutors had previously sopoenaed them from J-M.
“McDermott’s elements of defense,” said Greg Buckles, co-founder and principal analyst at eDiscovery Journal, “include a timeline of actions from collection to production, the billables of personnel involved and the diligence of oversight on their part, versus the time and scale of discovery.”
Employing contract attorneys a cost-saving measure
All of those concerns have been raised in J-M’s malpractice complaint, but none more sharply than the role of billable personnel. The suit’s emphasis on contract attorneys underscores the time and cost that large firms often devote to outsourcing, in part to save money for clients and to spare high-dollar associates the grunt work of document review and database management.
While top law firms may pay upwards of $100 per hour to new associates fresh out of prestigious law schools, contract attorneys can be hired to do much the same discovery-related work for roughly $45 per hour, with little if any discernible loss of quality.
“Contract attorneys making a long-term living doing this have developed fundamental review skills,” Buckles said. “If you can’t produce consistent volume and quality, you won’t have a job.”
Emily Stitelman, a New York attorney who specializes in e-discovery consulting, said that while some contract attorneys are even better qualified than associates to review electronic data, hiring outsourced help still presents complications. Conducting interviews and vetting resumes can be especially burdensome when firms must quickly ramp up staffing to meet the demands of large-scale document review, which in the case of McDermott’s work for J-M, spanned 160 custodians and potentially millions of e-documents.
Established connection with outside provider a mixed blessing
Legal staffing agencies that provide contract attorneys can help, especially if they have established relationships with law firms that enable them to provide services at a moment’s notice. Legal process outsourcing firms, which offer document review services performed by staffs in India, the Philippines and elsewhere, are also available.
“If you want to buy a jet engine, you don’t buy it from Harry The Jet Engine Maker, you buy it from G.E.,” said Andrew Lavoott Bluestone, a legal malpractice attorney in Manhattan. “McDermott will make the case that they hired well known, well respected, well endowed contract firms and attorneys to do a search, and they can’t be expected to look at 250,000 pages without delegating the work to well known professionals.”
Still, an established connection with a respected service provider may not guarantee high-quality help.
Buckles said that instances of discovery mishandling are more likely to arise when legal staffing agencies “know they have the job” and aren’t required to bid for business from firms with which they already have close working relationships.
Of course, even if the hiring is handled well, other obstacles may arise with outsourced e-discovery that must be navigated with care.
Training, supervision and quality control a must
Training contract attorneys so that they have a complete understanding of the case, as opposed to merely providing them with codebooks and pertinent search terms, is one way that firms can protect themselves from inadvertent disclosure of privileged materials, as alleged of McDermott.
“While certain specialized cases may require the document review to be done by more expensive big-firm associates, in many cases it would be abusive to the client not to use contract lawyers,” said Alvin Lindsay, a partner at the Miami office of Hogan Lovells. “But training and oversight are key, as is a rigorous quality-control process. Some firms might be giving these elements short shrift.”
At Hogan Lovells, he explained, training might include a PowerPoint session explaining the case, the custodians involved, the problem areas and a rundown of the technology and the form document reviewers use to mark responsive data.
If the experience of attorney Tom Regis is indicative, McDermott Will & Emery may routinely take similar steps.
“They trained us on software, the nature of the case -- enough that we knew what was going on,” said Regis, who worked as a contract document reviewer on a US Securities and Exchange Commission case for McDermott in Los Angeles in late 2006.
“I pay attention to detail and work ethic and note in document review the things I’d do differently. With McDermott Will & Emery, I didn’t have any sense they should have done things differently,” Regis said.
“Training was better than with most of the firms I worked for. Work was monitored particularly well. I was more in touch with their attorneys than I was with other cases.”
It is this “in touch” part where McDermott now stands accused of failure in the malpractice lawsuit that will likely serve as a wake-up call regardless of its outcome.
“The most important thing is to remind law firms that they have to supervise discovery,” said Stitelman, the New York e-discovery consultant. “That’s pretty basic. But most attorneys don’t even know what’s going on in those darkrooms of 100 reviewers.”
By: Rovert Hilson
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