In a lawsuit filed June 2, 2011 in the California Superior Court, J-M Manufacturing Company, Inc. ("JM") alleges that the law firm of McDermott Will & Emery ("MWE") breached its fiduciary duty owed to JM and committed legal malpractice by failing to sufficiently supervise the document review, and more specifically failing to adequately review documents for privilege prior to production. 

According to JM's allegations, MWE represented JM in connection with a series of subpoenas issued to JM from the United States.  MWE allegedly worked with JM to identify approximately 160 custodians of information and hired a third-party vendor, Stratify, to run a keyword search.  JM claims that following an initial keyword search, the United States government found a significant amount of privileged documents and asked MWE, as counsel for JM, to redo its production with a privilege review.  JM alleges that MWE next employed contract attorneys to run a second keyword search, aimed at privilege, and categorized the documents into responsive and privileged categories.  However, according to JM, aside from limited spot-checking, the firm did not thoroughly review the categorization or conduct any further privilege review.  Allegedly, 3,900 privileged documents were inadvertently produced based upon the contract attorneys' assessment of responsiveness and privilege and the then real-party-in-interest, the "Relator" refused to return the privileged material. 

The claims raised in this lawsuit highlight the fact that "parties should carefully consider the experience and expertise of a potential [vendor] before his or her selection."  The Sedona Principles®: Second Edition, Best Practices Recommendations & Principles for Addressing Electronic Document Production, Principle 6, cmt.d. (June 2007).  This is because "[u]ltimate responsibility for ensuring the preservation, collection, processing, and production of electronically stored information rests with the party and its counsel, not with the nonparty consultant or vendor."  Law firms which offer a full range of electronic discovery services, like those offered by Ryley Carlock and Applewhite's Document Control Group, provide a unique advantage to litigants as there is minimal risk of miscommunication between the "moving parts" to expose the litigant to liability.  Moreover, associating Ryley Carlock and Applewhite as co-counsel, as opposed to simply hiring a vendor or contract attorneys, brings an experienced and thoughtful voice to the table to address the client's electronic discovery process and most importantly, assume risk and responsibility for the preservation, collection and production. 

Readers are reminded that the allegations made in the above-referenced lawsuit are only allegations and have yet to be proven.  For a complete copy of the complaint, click here.