Thursday, June 30, 2011

From Information Week - Google+ stops sending invites - "Insane Demand"

Due to an "Insane Demand" for invites Google+ has stopped issuing new invites.  Have you added to the "insane demand" yet?  Happy "Social Media" day everyone.

How Lawyers can use an Ipad for Business Development

From the blog of subject matter expert Kevin O'Keefe...observations made regarding a valuable presentation given by Tom Mighell regarding methods that attorneys can use Ipads for developing their business, and increasing their personal productivity.  There are some very helpful pointers in the link provided above.

FBI seizure from Cloud - even for entities not subject to investigation

Article from last week that discusses an FBI raid of a Cloud computing data center, that resulted in seizure of data from several corporate uses of the Cloud service...most of whom had nothing to do with the one company the FBI was investigating.

SRM Legal and Valora assist top 5 Long Term Healthcare Provider

The link above provides a brief Case Study of how SRM Legal, and our strategic partner Valora Technologies, recently assisted at Top 5 Long Term Healthcare services provider with the use of "Black Cat" technology.  Proper use of early case assessment techniques, and data analytics can help corporations avoid future liability by identifying potential issues before litigation ever arises.

Wednesday, June 29, 2011

Law Technology News - NLRB will protect employee's right to use social media in some cases

Article by Michael Starr, Esq. of Holland & Knight, and Katherine Healy Marques, Esq. of Holland & Knight.  The link above provides information regarding the NLRB's recent opinions that the use of social media by employees (even non-union personnel) may trigger certain protected federal rights.

The article also points out that certain restrictions of the use of social media by corporations may go too far, and violate employees rights, as well.

Article by Evan Koblentz regarding Microsoft's Office 365 - Now out of Beta

Link to article published by Law Technology News, and available via  Discusses hosted applications from Microsoft that will compete with Google's Apps for Business.

Zen & the Art of Social Networking - Mid Sized Law Firms

What are mid sized law firms doing in terms of using social media to assist their practice?  Article by Lindsay Griffiths of the International Lawyers Association outlines a panel discussion held regarding the use of social media, as well as blogging by individual attorneys, as well as by the firms that employ them.

Many questions are posed by this article, and it certainly touches upon issues that firms should consider, and possible concerns about the use of Facebook, Twitter and LinkedIn by their own employees.

Tuesday, June 28, 2011

Ten Tips to Enhance iPad Security

We have gotten alot of feedback regarding our iPad posts. The very attributes that make the iPad such a powerful tool for lawyers -- easy portability, fast access to information, ubiquitous connectivity and a simple user interface -- also help make it a security risk. Here are ten tips to help you make your iPad more secure.

Article by Thomas Allman, Esq. - Developments in State Laws re: ESI

Very detailed and well documented article outlining the developments in State law since the revisions to the Federal Rules of Civil Procedure were enacted in 2006.  Highlights the differences amongst the States in how their court systems deal with Electronically Stored Information.

Thanks go to the Fios website for the article authored by Thomas Y. Allman, Esq. is the author of the article, he is the Chair Emeritus of Working Group 1 of the prestigious Sedona Conference®.

LinkedIn to start using social ads

Article by Leena Rao from

LinkedIn to start using personalized ads based on user feedback, and recommendations. They hope to have highly-targeted, more interactive ads, similar to what Facebook has been attempting.

Digital Universe Graphic - Projections

Identification - Preservation - Collection - Processing - Hosting - Attorney Review ----- The challenges increase as the amount of data explodes exponentially. 

Article by Evan Koblentz - Law Technology News - Billing Codes for EDD

New billing codes being are expected to be approved by the Legal Electronic Data Exchange Standards (LEDES) organization.  They are working in conjunction with the EDRM (Electronic Discovery Reference Model) organization to create standards for line item billing in eDiscovery...hopefully making it easier for clients that outsource services to eDiscovery providers to perform an "apples-to-apples" pricing comparison of the services they wish to outsource.  There are 34 codes being considered, and the proposal seeks to divide them into 5 categories:  Identification; Preservation; Collection; Review; and Project Management.  

Digital Universe to Add 1.8 Zettabytes in 2011

Article by Rich Miller, posted on  According to the article, which sites the most recent IDC study of the Digital Universe, it is expected that 1.8 Zettabytes of data will be stored in 2011.  That is over 1 Billion Terabytes.

To put this in some type of rationale perspective, if we looked at all the communications taking place in Twitter this would take 100 years of tweets, at the current rate, to create 1 Zettabyte.

It is not a bold statement to say that eDiscovery and ESI will be important to the legal profession for quite some time to come.  If you don't agree, you can feel free to respond, and add even more data to the digital universe.

Monday, June 27, 2011

Google Turns Over User Data to U.S. Government in 94% of Requests

Article by Dan Goodin posted on "The Register" website.  Google responds in full, or in part, to 94% of U.S. government requests, by turning over some data...this is higher percentage of data disclosure being made by Google in reply to any governmental request.

Social Media Influences Search Engine Rankings

Article by Christopher Penn.  Is your law firm using social media?  If not...I think it is becoming clear from articles such as this one that you, or someone authorized to send messages for you firm, should be.

Trends in e-Discovery - Cloud and Collection - Social Media

White paper commissioned by Clearwell Systems and distributed by Enterprise Strategy Group.  A market perspective regarding the trends in e-Discovery, including comments and statistics about the growth of Cloud computing and social media.  Includes projections regarding the future impact of the Cloud and Social Media upon e-Discovery. Written by Brian Babineau and Katey Wood.

Article Providing Review of Trial Pad 2.0 App for Ipad by Ted Brooks

Informative article by Ted Brooks, from Court Technology and Trail Presentation Blog.  A detailed review of the Trial Pad 2.0 App for the Ipad.
For those of you trial counselors that are not using technology to enhance your practice...this might be the time to re-think why you aren't.

6 Reasons EHR/EMR Might Help Improve Healthcare Practices

From Health Information Management....6 items to consider when shopping for an EMR/EHR solution for your healthcare environment.

11 embarrassing email examples from Business Insider

Some nice examples of improper use of email....despite all the stories like this one, it keeps on taking place.  With over 240 Billion emails sent daily, is it any wonder?

e-Discovery - Coming soon to a Florida Courtroom near you

New e-Discovery rules approved by the Florida Civil Rules Committee after 6 years of debate, and heading to Florida's Supreme Court for approval.  Yet another State deals with the impact that ESI is having upon the legal profession.

Sunday, June 26, 2011

Saturday, June 25, 2011

The UELMA - Uniform Electronic Legal Materials Act

Uniform Electronic Legal Materials Act...Rules for Authentication of Electronic State Records.  Don't forget to lay the foundation of your evidence...for State government documents, the attachments sets forth the guidelines as to how to properly authenticate your proposed evidence.

Top 20 Ipad Apps for Attorneys from

Top 20 Ipad Apps for Attorneys.  This is a good resource for counselors that have adopted the use of the Ipad as a tool to improve the efficiency of their practice.

Sony sued over hacks

Sony sued, allegations that they ignored warnings of security flaws.  The suit, filed in a San Diego Federal Court, cites a confidential informer that claims Sony had laid off many of the people in their network security department, just two weeks prior to the hacks.  Information from 77 million accounts were accessed by the hackers.

Friday, June 24, 2011

State of Litigation Management - Survey Results 2011

Survey taken by Lexis-Nexis and Harris Interactive...results complied in April 2011 from questions posed to 513 attorneys (263 from Outside Counsel Firms, and 250 from corporate law departments)  in March 2011.  Interesting trends revealed regarding eDiscovery, effective data management and case analysis, and the use of alternative fee arrangements.

Thursday, June 23, 2011

Attorneys Must Be Careful When Choosing Facebook Friends.

Counselors beware:
The sometimes murky ethics of using social careful whom you send a friend request to on Facebook, you may be violating ethical rules depending on whom, when and why you are trying to "friend" someone.

SRM Legal Press Release regarding Litigation Support Technology Blog

About SRM Legal's blog, and more information about SRM Legal.  Thanks for reading our blog, and we thank all the authors whom have drafted the materials that we have re-posted here. 

Digitization of Healthcare records...finding the value

An article by Bob Herman that discusses the issue surrounding implementation of an electronic health records system.

The challenges that electronic healthcare records will create for the eDiscovery profession will certainly create some new obstacles to address.

Cutting legal costs

AMERICA thinks of itself as having not only liberty, but “justice for all”, as the Pledge of Allegiance has it. The World Justice Project disagrees, releasing a report on June 13th on the status of the rule of law in 66 countries around the world.

Law Technology Article regarding "Corporate Counsel's" 2011 In-House Tech Survey

The article makes a point that regarding a trend I have personally observed over the past few years..."companies calling the shots on what technology, and which providers, outside counsel themselves need to embrace."

The dynamics of the relationship between the corporate law department, their outside counsel law firms, and the litigation support service providers continue to evolve.  The best relationships, and most reliable workflows are established when all three parties communicate frequently with each other.

Wednesday, June 22, 2011

How the iPad Can Increase Lawyers' Productivity

Part 2 in our iPad series. This is a great article that lays out how the iPad can help  make lawyers more productive. Michael H. Payne a partner in the Philadelphia law firm of Cohen Seglias Pallas Greenhall & Furman talks about how he is using the iPad and lists some of his favorite Attorney-Specific Apps

Catalyst Publishes article by Bob Ambrogi, Esq. regarding sanctions

DL, et al. v. District of Columbia  1:05-cv-01437-RCL

 The Defendant, District of Columbia attempted to produced tens of thousands of pages of email to the plaintiff on the eve of trial...the Judge was not pleased, and described the defendant's actions saying it would be like a comic telling jokes after the punch line, or a plane putting down landing gear after touching down.  The delay caused by the defense led to the Judge saying that there was a waiver of privilege of any documents that the defendant claimed it had yet to review.  
 In my opinion, there simply was no excuse for defense counsel's actions here....they could have sought an extension as the Court pointed out, or in the alternative, they could have explored new technologies that could have helped them locate and review the information that was potentially relevant to this case, long before finding themselves in this position.   This case is a textbook example of how to get sanctioned for not properly searching through electronically stored information, and violating obligations set forth during the discovery phase of litigation.


SRM Legal partner iConect's article - Social Media and the Legal Profession

SRM Legal has a long standing partnership with iConect....iConect recently published this article regarding the use of social media, and how it has impacted the legal profession.

Litigation article by Andrew Haslam

White Paper published by "The Know List"...focuses on UK Law, but also has a good analysis of developments in the U.S. The article mentions "Tunnel Vision" as a service provider to watch....SRM Legal supports "Tunnel Vision" services at our operational facilities, and we have a team of experts that understands the technology, and the best practices involved in utilizing it correctly.  Should you have questions about "Tunnel Vision", please feel free to contact us at SRM and we will be glad to assist.

12 ways the Cloud Changes Everything by Julie Bort

Read Julie Bort's interesting article from Network World. 

As the old saying goes....the only constant in life is change.  Cloud computing continues to impact the landscape of the corporate environment, and will further impact the legal profession as more corporate client's outsource their information to service providers. SRM Legal is uniquely positioned to assist with challenges that will arise due to this increasing trend. 

Tuesday, June 21, 2011

The 50 States and eDiscovery laws - which one's have them and which don't?

21 of the 50 States as of April, 2011 have either adopted the Federal Rules of Civil Procedure's method to dealing with eDiscovery and ESI, or have adopted their own rules...the others are still debating revisions, or doing nothing at all.

Predictive Coding Wars - Chris Dale of the UK provides a nice analysis

Chris Dale provides detailed insight regarding the "Predictive Coding" wars recently touched off, and provides some vital information regarding the various services....this is much more instructive than the "name calling" that has recently been taking place.  Thanks Chris.

Clearwell and dare I say..."Predictive Coding"

Interesting article by Venikat Rangan, CTO of Clearwell.  Clearwell just awarded SRM Legal with "Silver Level Partner Award" for 2010.  Provides a nice history regarding the technology (and patents) behind "Predictive Coding".

kCura joins ACEDS as affiliate member

Further reason to obtain ACEDS e-Discovery certification...kCura, a strategic partner of SRM Legal, is an affiliate member.

Monday, June 20, 2011

Lawyers encouraged to pad up with iPads

Lawyers may no longer have to struggle in to courtrooms with luggage cases stacked with documents, if a pair of iPad-touting law students are to be believed.

SRM Legal adds Clearwell Version 6.6

SRM Legal continues to invest in the latest technological solutions.  SRM Legal employs the right people, develops best practices and processes, and utilizes State of the Art technologies, to meet our client's various needs.  See the attached information regarding SRM's upgrade to Clearwell Version 6.6.

More on the Predictive Coding War.....

Interesting and comprehensive article about the Predictive Coding Wars recently touched off by a certain provider that I will not name....I really find it interesting that they used the "TM" symbol for terms that they never had a Trademark for.

In big e-discovery malpractice case, role of contract attorneys likely to be key

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.

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

This is the first known legal malpractice suit arising from alleged mishandling of electronically stored information.

Stay tuned we will have more details as this case unfolds.

Friday, June 17, 2011

Sanctions case - Green v. Blitz Usa

Creative use of sanctions by the Court...Defendant failed to properly conduct searches for ESI and appointed a lay person that was a self-admitted "computer illiterate" to be in charge of their internal discovery process.  Defendant missed several relevant documents which it produced to plaintiff after the trial had already concluded. The sanction resulted in a $250,000 fine, and an order stating the defendant had to disclose a copy of the Order to all plaintiff's that had sued defendant in the past 2 years, and was ordered to attach the Order to all of the defendant's first pleadings in all litigation for the next 5 years.

Writing 1000 times on the Court's blackboard (or posting it on Twitter), "I will not play games with my ESI" might have also been a good idea too.
SRM Legal Releases Clearwell v6.6

Clearwell Systems is pleased to announce the release of Clearwell E-Discovery Platform v6.6.  As a Clearwell Cerified Silver Partner, SRM wanted you to know about the product enhancements that were made to make our clients more successful.

New features in v6.6 include:

Processing Report Enhancements
Batch-Level Pre-Processing Reports
Improved Reporting for Processing Exceptions
Integration of Pre-Processing Reports with Jobs Framework 

Search and Review Features
Transparent Concept Search

Production Enhancements
Production Image Creation Progress Monitoring
Production Slipsheet Reporting

Clearwell Silver Partner

Play Visions Case - Latest example of poor lawyering leading to sanctions

The Play Visions, Inc. v. Dollar Tree Stores, Inc., No. C09-1769 MJP (W.D. Wash. June 8, 2011)...full opinion attached below

This case is a perfect example of how to get sanctioned by not properly dealing with e-Discovery issues. The corporate plaintiff in this matter, and their outside counsel, failed to even ask the plaintiff's I.T. department for electronic records, that plaintiff ultimately produced months later.  

For law firms that keep wanting to ignore e-Discovery and electronically stored are on notice multiple times now, and the Courts are losing patience with attorneys that ignore these issues.

Predictive Coding Explained

A great deal of discussion has taken place recently about a new form of document review that is taking the eDiscovery industry by storm: Predictive Coding. The reasons for this surge in interest are several – as discussed below – but the timing is not coincidental, as two major trends are colliding when 1) the economics of traditional, linear review have become unsustainable while 2) the early returns from those employing Predictive Coding are nothing short of phenomenal and have given such early adopters a significant competitive advantage. Given the nascent stage of the Predictive Coding world, we thought the timing was right for a quick primer on what Predictive Coding is, what it isn’t, how it came to be and the problems it seeks to address.

Linear document review – where individual reviewers manually review and “code” documents ordered by date, keyword, custodian or other simple fashion – has been the accepted standard within the legal industry for decades. This was not a big deal when ESI volumes were measured in megabytes or even a few gigabytes; the explosion of data volumes over the past decade, however, has exposed traditional linear review as an exceedingly inefficient, costly and inconsistent approach to document review (which accounts for 60-70% of the costs of eDiscovery). There is simply so much data to be coded that the old model has become too slow and expensive to keep up.
Why does linear review perform so poorly in most cases? For starters, many – and often most – documents in a review are “false positives” (i.e. irrelevant, unresponsive, or both), yet they are still reviewed by an attorney, which racks up huge amounts of unnecessary costs. Second, documents are typically not organized by topic which forces reviewers to jump from topic to topic, slowing down the process and leading to inaccurate results. Third, documents aren’t prioritized in any way (i.e. from most important to least important) so reviewers can miss key documents. And finally, because individual attorneys typically know little about a case’s substance, multiple “passes” must be made over the same documents based on the substance of a particular review (i.e. a first pass for relevance, a second for responsiveness, a third for relationship to a substantive category, etc.). Add it all up and one is left with a woefully outdated and extremely expensive approach that is rapidly falling out of favor with clients and outside counsel.
By contrast, Predictive Coding seeks to automate the majority of the review process. Using a bit of direction from someone knowledgeable about the matter at hand, Predictive Coding uses sophisticated technology to extrapolate this direction across an entire corpus of documents – which can literally “review” and code a few thousand documents or many terabytes of ESI at a fraction of the cost of linear review. The result? A more thorough, more accurate, more defensible and far more cost-effective document review…which allows attorneys to do what they were trained to do, namely use the facts to advocate on behalf of their client. Predictive Coding is so powerful that it actually changes the economics of eDiscovery, allowing law firms to win new business while maintaining or even improving their margins.
Due to the number of vendors, practitioners, outside counsel and clients in the eDiscovery space, there has been a lot of confusion about Predictive Coding. For all that it is and all it can do, here are several of the most common ways in which various commentators have inaccurately characterized Predictive Coding:
  • Can be comprised of culling, threading, categorizing and/or clustering. These techniques can be helpful in organizing documents for review. However, they do not themselves predictively “code” documents, nor do they prioritize documents automatically, nor do they provide quality control after the fact, thus they are not Predictive Coding. Put another way, they address one symptom of linear review (the lack of topical organization of documents) but do not address the fundamental flaws of linear review and still require huge review teams (often contract attorneys).
  • A replacement for attorneys. Simply put, Predictive Coding makes seasoned attorneys more valuable (not less) as it allows them to focus on the most important part of any matter: defending or prosecuting their client’s interests. Predictive Coding also allows attorneys to take on more business by expediting the most tedious element of eDiscovery – document review – which is especially important in the current economic cycle.
  • Subject to defensibility issues. A classic red herring, some linear review vendors and practitioners have reflexively voiced concerns about defensibility, namely that Predictive Coding may carry risk because it is not linear review. In fact, the opposite is true: more and more courts are pushing litigants to pursue alternative approaches to document review (like Predictive Coding) due to the risk and costs associated with legacy eDiscovery methods. When part of a thorough, documented process, Predictive Coding is actually more defensible than linear review.
  • As being solely about technology. The technology aspect of Predictive Coding is not trivial and cannot be discounted; it is not easy to do, which is why linear review has continued to outlive its useful lifespan. But what makes Predictive Coding so defensible and effective are the processes, workflows and documentation of which it is an integral part. Although technology is at its CORE, Predictive Coding includes all of these parts as one integrated whole.
  • Solely for big cases and/or big law firms. One of the most common misperceptions is that Predictive Coding is the province of the rich (i.e. AmLaw 100 firms and Fortune 100 clients). This is simply not true. As many small and mid-sized yet forward-looking law firms like Eimer Stahl have begun to realize, Predictive Coding is useful for anyone dealing with litigation or regulatory or internal investigation.
With today’s huge volumes of ESI pressuring inside and outside counsel alike to embrace new approaches to eDiscovery, it’s no surprise that Predictive Coding has become so popular in such a short period of time. Look for this trend to continue throughout 2010 and into 2011 and beyond.

Written by Chris Carpenter

Judge's Guide to Cost-Effective e-Discovery

A very interesting and informative article from earlier this year that discusses some of the newer technologies that are available to law firms and corporate law departments during the discovery phase of litigation.  SRM Legal can provide the various services referenced in this article to our diverse client base.

Gartner's First Magic Quadrant for e-Discovery

Negotiating the Impact of ESI on Arbitration - from LTN

e-Discovery - Information Governance

Thursday, June 16, 2011

Gartner Publishes First Magic Quadrant for e-Discovery Software

Gartner RAS Core Research Note

The market for electronic discovery software is volatile and over crowded, with new vendors entering as others merge. Nevertheless, Gartner considers the market mature enough to warrant the first Magic Quadrant analyzing 24 of its vendors.

The electronic discovery (e-discovery) software market presents something of a paradox. A business imperative drives demand for this software, yet the profession demanding it is often slow to understand and adopt technology. Purchasing decisions frequently reflect long-standing trusted relationships, which means that even a small book of business can be profitable to providers and the effects of customary market forces are muted. This situation is changing, however, because the amount of data subject to discovery is ballooning as enterprises adopt new social media and cloud technologies.

The e-discovery software market is entering a phase of high growth,increasing maturity and  inevitable consolidation. Nevertheless, new players are still entering the market to capitalize on the growing opportunities, and existing vendors in adjacent spaces are adding functionality to their offerings.

10 Careers Derailed by a Tweet......from the Huffington Post - June 15th.

Avoiding e-Discovery Nightmares - 10 ways C.E.O.'s Can Sleep Easier

From Forbes Magazine....

Social Media Use - Promises and Pitfalls

Law Firms Beware

Amid rising fears of e-discovery malpractice, huge law firm faces client lawsuit

The tables have been turned on one of the world's largest law firms. As a result of allegations of e-discovery malpractice in a state case filed in Los Angeles last week, McDermott Will & Emery, a 970-lawyer global behemoth, must now practice what it preaches. It must issue a "litigation hold" to its own lawyers, litigation support and IT staff and others to preserve its own records that are relevant to the serious charges that its former client, J-M Manufacturing Co., Inc., has leveled.

The lawsuit, filed on June 1 in Superior Court, is believed to be the first e-discovery malpractice case ever filed against a law firm for the alleged failure to supervise contract attorneys that were hired to perform the client’s work and to protect privileged client records.

It is a case that normally would not get much attention. But this is not a normal case. It raises issues and poses scenarios cutting across all sectors of the global e-discovery community. The issues and scenarios undoubtedly cause sleepless nights for thousands of lawyers, litigation support professionals, IT specialists, records managers, technology officers, consultants, staffing companies and legal process outsourcing firms that face the e-discovery phenomenon daily.

Outside help almost unavoidable now in complex cases

These professionals know that electronically stored information, or ESI, abundantly permeates all aspects of business, commerce and daily lives and that any complex legal case -- even some simple ones -- will require outside help to plow through great volumes of electronic data. The new e-discovery legal regimes require that work in order to identify records that are responsive to the discovery demands of opposing parties and to separate privileged documents that must not be disclosed.

The outside help that lawyers or their clients hire – in private and public sectors – are usually technology providers, consultants or hired eyes that perform the practically unavoidable "document reviews." In various ways, the outsourced assistance, who performs services for lawyers and clients, act as "surrogates" for the companies that hire them.

These outside providers relieve lawyers of much of the tedious review of electronic records, but do not relieve them of the "duty to supervise" the persons they hire to help with client’s matters. Any lawyer who doubts that should peruse Rule 5.1 of the American Bar Association’s Model Rules of Professional Conduct.

That is the rub. And that is where McDermott Will & Emery’s former client says it ran afoul of its obligations.

Contract lawyers "DOES 1 through 100" also sued

The complaint also sues persons it describes as "DOES 1 through 100." These are presumably the persons who performed the document review.

The case has been assigned to Superior Court Judge Charles F. Palmer. He was a partner in the Los Angeles office of the large national law firm, Perkins Coie, for 14 years. According to his biography, he handled complex commercial litigation there before his appointment to the bench by former Governor Gray Davis in 2002.

J-M, a major manufacturer of PVC piping, had hired McDermott to defend against civil False Claims Act charges concerning the quality and sale of its products to federal and state governments. Filed in January 2006, the case remained under seal until October 2008. In March 2010, the complaint against McDermott states, J-M retained Sheppard Mullin Richter & Hampton to replace McDermott.

J-M had 160 custodians of records

The document review the complaint describes was no easy matter. J-M had about 160 custodians of ESI that were "likely" responsive to government discovery requests. McDermott hired Stratify, an outside vendor, to cull through the ESI. Stratify was later acquired by Iron Mountain, whose digital product lines have been acquired by Autonomy.

The attorney for the "relator" in the False Claims Act case told Sheppard that some J-M documents it had received from the government which had previously been turned over by J-M "appeared to be privileged."

Although McDermott worked directly with the Assistant US Attorney in the False Claim Act case to develop a keyword list to produce responsive ESI, the government returned the first production set after finding many privileged documents. The second attempt did not fare better. The complaint says McDermott and its contract lawyers produced a second data set again laced with privileged documents despite being filtered through a second keyword list.

J-M says "[McDermott]'s attorneys performed limited spot-checking of the contract attorneys' work, [and] did not thoroughly review the categorizations or conduct any further privilege review.”

Sheppard asked for the return of the privileged documents but the relator refused. It said McDermott had already done two "privilege reviews" before giving them to the government and that J-M had thus waived the attorney-client privilege. J-M alleges in its suit that 3,900 privileged documents were erroneously produced by McDermott as part of 250,000 J-M electronic records that were reviewed.

Source of McDermott's contract lawyers not revealed

The complaint does not identify the source of the contract lawyers that McDermott used for the document review for J-M. Nor does it say whether the firm used its own legal staff or hired temporary workers through a legal staffing or legal process outsourcing firm.

For McDermott, employing lower paid lawyers for document reviews and other e-discovery tasks is not new. In 2007, according to published reports, the firm established a second tier of lawyers that earn roughly 25 percent less than new associates to perform less appealing tasks like document reviews. The two-tiered system was a response to the proliferation of keyword searches and database maintenance of ESI. These tasks were consuming much of the time of the firm’s higher-paid associates who were on a track toward partnership.

J-M seems intent on making sure that McDermott pays an undefined price for its failure to supervise. For McDermott's alleged "breach of fiduciary duty," it also wants punitive damages awarded in a "sufficient amount to make an example of... and to deter future fraudulent, oppressive and malicious misconduct."

The complaint also requests that McDermott provide an accounting of the sums that it paid for contract attorneys and two vendors. It alleges that McDermott "marked up" the fees and costs it paid to contract attorneys and vendors and failed to disclose that to J-M.

Rafael Bernardino, Jr., of Hobson Dungog Bernardino + Davis, in Los Angeles, who represents J-M, declined to comment beyond citing the complaint. He was previously an attorney at the US Department of Justice in Washington.

Through its partner and general counsel Alan S. Rutkoff, McDermott would say nothing more than, "We believe this case is without merit and we look forward to defending the firm against these baseless allegations. We do not litigate matters such as this in the press and will not be making any substantive comments about this matter."

McDermott must respond within 30 days after being served with the complaint under California rules.

McDermott's malpractice insurer is not known. The firm is a member of the Attorneys’ Liability Assurance Society (ALAS), a self-insurance group of very large law firms. ALAS held a web seminar for members only last week on e-discovery malpractice risks and other hazards lawyers face.;email

Author: Robert Hilson and ACEDS Staff
Additional research by Zachary Park