17 Responses to Going “Gaga” Over Big Deals and Malpractice in e-Discovery

  1. Jeff says:

    Ralph, about your analysis of the lack of merit to the McDermott lawsuit: it sounds like the first production was done solely based on keyword hits without any privilege review. The complaint is ambiguous in this regard but it sounded as if the list of potentially privileged keywords was only added after the initial production. If that is the case, I think you may not be comfortable defending the initial production as reasonable. It also isn’t clear if the 3900 documents were picked up by the privilege keywords (and mis-coded by the reviewers), or whether the keyword list was, in retrospect, not well-chosen. By the same token, if the documents reflected coding errors, if the potentially privileged documents was a small subset of the 250,000 documents, a second review may have been reasonable.

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  2. […] Surprisingly, this entire discussion is about a mere complaint filed against a large firm, who assuredly will wage numerous procedural challenges.   Thus, it’s questionable whether this case even sees the light of day.  So, why is it showing up on the radar of so many experts and pundits?  First of all, as Ralph Losey notes: […]

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  3. I just received an email from a document review firm that it “shred[s] our protocols once the case has been disposed”, i.e., the firm is no longer reviewing documents. FYI the document review firm completed the review less than one week prior to this email.

    Regardless, in light of potential malpractice suits against document review firms and their law firm clients, this seems risky at the very least. I would be curious as to the ethical obligations of a document review firm and retention of its records.

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  4. […] analysis on the case (plus much more) from Ralph Losey (with some cool links to Lady Gaga) click here. Tags: contract attorneys, e-discovery, Electronic Discovery, http://e-discoveryteam.com, […]

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  5. […] analysis on the case (plus much more) from Ralph Losey (with some cool links to Lady Gaga) click here. Posted in Document review: some basics Tags: contract attorneys, e-discovery, electronic […]

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  6. NYC reviewer says:

    I do hope this case goes to trial, though I think it’s likely to settle. Too many embarassing disclosures for both sides, but especially for the defendants.

    I admit that as someone who has worked for Hudson Legal as a reviewer I am very curious to learn what they paid the reviewers and what rate the law firm billed them out to the client.

    This case could be a great learning opportunity, a “teachable moment” that would help develop better practices in the e-discovery field. I feel the status quo is not acceptable, and changes will need to be made.

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  7. P. Hall says:

    It’s “The Fame Monster”, Ralph.

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  8. NYC reviewer says:

    I should clarify. I had read the story about the amended complaint. I understand that the law firm (McDermott) paid the agency (Hudson) $61 per hour. What I’m curious about is what Hudson paid the reviewers, and what rate McDermott billed out to its client for the work performed by the contract attorneys.

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    • That I do not know, but it will probably come out as part of the lawsuit concerns McDermott’s markup.

      I agree with Prof Losey, the most interesting part of this lawsuit is the Third Count.

      Frankly, I do not think it matters what Hudson paid the reviewers as Hudson is not engaged in the practice of law.

      However, McDermott’s markup is subject to the Rules of Professional Responsibility. According to the ABA, markups are OK as long as they are “reasonable”. The California rules, where the suit was filed, seem to concur.

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      • Charlie Delta says:

        As the employer of practicing lawyers, Hudson is very much engaged in the practice of law, as is every legal staffing agency in the document review industry. Most of the agencies use lawyers as recruiters and supervisors for that reason, as lip-service to the ethical requirement that lawyers be supervised and directed by other lawyers. Their fee arrangements with law firms are unethical fee-splitting, according the the New York City Bar Association, but that doesn’t seem to trouble anyone.

        Firms’ marking up of temps’ wages is probably also unethical, since the temps often use none of the firms’ resources and may have little or no direct contact with the firm or its attorneys.

        Much of the work document reviewers perform, thanks to a misguided, extreme division of labor, is routine, repetitive, and requires no specialized knowledge or training. It’s essentially “find-a-word”, and any high-school graduate could do it. Firms use lawyers, though, because that enables them to charge their clients lawyers’ rates for the work. It also allows the agencies to claim that the employees performing this assembly-line work are exempt from wage and hour laws and don’t have to be paid overtime rates for mandatory 60- and 70-hour workweeks.

        The industry needs more suits like this. Unfortunately, the agencies’ response, instead of cleaning up their unethical practices, seems to be to force individual reviewers to sign indemnity agreements, making employees the insurers of their employers.

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    • Charlie Delta says:

      Hudson generally pays admitted attorneys about $32/hr for English-language reviews in New York.

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  9. I made you your favorite ...goodbye! says:

    Today, most contractors are directly billed to the client, eradicating the “markup” by the law firm. That jig was up years ago. I don’t believe for a second that JM didn’t agree to the process implemented by the law firm for the review’s parameters (percentages, scope of first level and quality control, etc.) as each step translates into $ saved or spent. This is interesting, but clients limit what the firm can do on the back end to mitigate inadvertent production of priv docs, etc. every day. You get what you pay for.

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    • Charlie Delta says:

      Today, most contractors are directly billed to the client, eradicating the “markup” by the law firm.

      That wouldn’t surprise me, but makes me wonder why firms still hire lawyers to do work that, thanks to a misguided, extreme division of labor, could really be done by any intelligent high school graduate.

      I don’t believe for a second that JM didn’t agree to the process implemented by the law firm for the review’s parameters….

      There’s many a slip twixt cup and lip. A good lawyer can convince his client that a horse chestnut is a chestnut horse, and get him to buy it a saddle and bridle. But when he loses his case, the spell is broken.

      …clients limit what the firm can do on the back end to mitigate inadvertent production of priv docs, etc. every day. You get what you pay for.

      Are lawyers free to commit malpractice if the client refuses to pay the reasonable price of competent representation? I don’t think so. A little less mahogany and marble in the lobby, a Toyota instead of a Jag, a slightly smaller villa at Laguna Beach–that kind of sacrifice by law firm owners could lower clients’ costs without the risks of malpractice liability; but the partners would rather keep pulling in $675 an hour and treat surplus lawyers (ostensibly their colleagues) as faceless, interchangeable drudges. Well, you get what you pay for.

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  10. […] Like I’ve been saying all year, e-discovery is hot. Now there are 10,000,000,000 more reasons to believe it. Like they say, money doesn’t talk, it screams. See The Word is Out: e-Disco is the Hot New Dance; 2nd Addendum to e-Disco is Hot: Clearwell Sells for $410 Million!;  Going “Gaga” Over Big Deals and Malpractice in e-Discovery. […]

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  11. joe says:

    joe…

    […]Going “Gaga” Over Big Deals and Malpractice in e-Discovery « e-Discovery Team ®[…]…

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