Evaluating Outside Law Firms on E-Discovery--Now is the Time

When will in-house counsel break through the looking glass and realize that not all law firms (if any) understand the complexities of electronic discovery? When Waters Edge published our groundbreaking book--Evaluating the Electronic Discovery Capabilities of Outside Law Firms: A Model Request for Information and Analysis--we expected law firms to buy the book, out of fear they would be confronted by clients with demands to which the law firms could not respond.

But we did not expect that in-house counsel would ignore the critical need to hold their law firms accountable for vastly inconsistent capabilities that often put the client's interests at risk. The recent decision in Victor Pipe by Judge Grimm highlights that law firm guidance can be fraught with peril. In that case, counsel used key word searching to try to identify privileged records to be withheld from production and missed critical materials that were disclosed. Oops! Its pretty unlikely that the client was pleased to be paying those legal bills, and its pretty unlikely the malpractice carrier was not too pleased with the outcome either.

Corporate companies must be prepared to rigorously demand their law firms demonstrate their competency in this field--it cannot be presumed. The issue is not that the lawyers are not good lawyers--the question is whether their law firm, as a service provider of information processing and analysis, is properly managing the most sensitive data a client may control--the evidence in a hostile lawsuit. How many more decisions like Victor Pipe will be required before in-house counsel begins to realize that presuming law firm competency places their corporate interests at risk, sometimes with disturbingly significant consequences.