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.”

In the event of mistakes, judges won’t look kindly on parties who failed to adequately supervise collection or put safeguards in place, Smith said.

According to Wortzman, lawyers may have to do battle over this issue since clients are often anxious to avoid the costs associated with bringing in a third-party vendor to do collection when they feel they can do just as good a job.

“One of the ways that we have dealt with it is by saying, ‘OK, you can do the collection yourselves, but we’re going to send someone along to see the protocol and understand in writing how exactly you’re going to do that collection.’

“If someone ever has to testify, you don’t want your own IT person or the client’s IT person being put on the stand and subject to cross-examination on all types of issues. There’s huge exposure there.”

via Lawyers warned about negligence in e-discovery | Headline News | Law Times News.