"If you engage in e-discovery, chances are you depend on vendors to help you harvest, process, search and filter digital evidence. But is that a dependency that blurs the line between lawyer and service provider?
"Selecting responsive information, planning search strategies and deciding forms of production are responsibilities traditionally reserved to counsel. But confronted by the Gordian knot of electronic data discovery (EDD), lawyers now share -- and sometimes surrender -- aspects of that role to vendors and experts. When all goes well, delegation seems sensible. But what happens when a vendor error exposes lawyers to malpractice allegations, or clients to needless expense, sanctions or even an adverse judgment? Several recent cases and incidents underscore the risks.
The American Lawyer recently reported that LexisNexis Applied Discovery Inc. used software that blanked the contents of older e-mail messages. Though LNAD assured customers that the problem affected only a minute fraction of its work, the company faces questions about quality assurance and its failure to timely apply software patches.
"Flawed search methods also contributed to the $1.45 billion dollar verdict in Coleman (Parent) Holdings v. Morgan Stanley, 2005 WL 679071 (Fla.Cir.Ct. March 1, 2005). And expert incompetence drew the judge's ire and sanctions in Gates Rubber Co. v. Bando Chem. Ind., Ltd. , 167 F.R.D. 90 (D. Colo. 1996). On Dec. 1, 2006, new federal rules move EDD to center stage. For years to come, lawyers and EDD vendors will be joined at the hip in an uneasy alliance."