Lawyers warned about negligence in e-discovery

In the high-tech world of electronic discovery, lawyers need to take old-world steps to avoid negligence claims, say lawyers who practise in the area.

Susan Wortzman has seen lawyers negligently collect too few or too many records.

A panel of lawyers tackled e-discovery negligence at a conference on Sept. 19 organized by Sedona Canada and sponsored by the Law Society of Upper Canada, the Ontario Bar Association, and The Advocates’ Society.

Susan Wortzman, co-founder of e-discovery law firm Wortzman Nickle Professional Corp., noted she has seen lawyers negligently collect too few or too many records, both of which can be fatal to a case. “If you over-collect, the problem you will face is that you are left with so much data.

You can use all the fancy tools you want to cull it but if you collect a million records and you’re successful in culling 75 per cent of it, you still have 250,000 records to review, and that is a lot of records.

Now you need lawyers to sit for days, months, and maybe years, and the costs are going to become exorbitant.”

Glenn Smith, a founding partner at Lenczner Slaght Royce Smith Griffin LLP, said there’s a risk of negligence right at the inception of a file if lawyers fail to exert the type of supervision that seems routine in other areas of practice.

“If you allow a client to self-collect the evidence, you may already have a negligence problem. It’s like having the client go through the filing cabinet without you there. You wouldn’t do that in hard copy but you somehow allow it to happen today.”

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Source: lawtimesnews.com
By: Michael McKiernan