The Estrin Report

"Who's to Blame When EDD Vendors Go Boom?"

I hate it when companies "go boom," but this article really discusses what happens "when vendors let you down":

"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."

Read the rest of this important article for advice from three lawyers -- Michael Arkfeld, Craig Ball, & J. William Speros -- who all work as electronic data discovery consultants....

"Working With an Expert Witness: The Seven Deadly Sins"

Good article from Law.com about what not to do:

"'So, I'd really like it if you could say this ...'

"If you've just said that to your expert witness, you've just made his blood boil. And that's probably not going to be very good for your case. As engineer Steven Murray, Ph.D., of Exponent Failure Analysis Associates in Menlo Park, Calif., says, 'Our job is not to support a lawyer's theory, it's to find out the technical truth.'

"Working on a case can be like a juggling act -- you've got your client, the other side, the other side's attorney(s), your witnesses, your expert witnesses, the other side's witnesses and experts. That's a lot of balls in the air. But you should never lose sight of your expert witnesses -- they can make or break your case. Commit too many of the Seven Deadly Sins and you can sabotage your chances of getting the best results."

Very good read & important advice!

New Expert Witness Guidelines for Neurologists

See this article from Law.com:

"In a move that has irked plaintiffs attorneys, the American Academy of Neurology recently revamped its 16-year-old guidelines regarding expert witness testimony by neurologists. The new guidelines [PDF] were formally adopted earlier this year, but will not go into effect until Jan. 10, 2006.

"The AAN maintains that the guidelines, which call for tougher expert credentials and warn against doctors advocating for lawyers, are a response to several complaints by physicians about unqualified witnesses.

"But plaintiffs lawyers allege that the new rules are scare tactics designed to strip credentials from plaintiffs' experts and keep doctors from testifying in medical malpractice cases."