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July 12, 2011

E-Discovery's Quality Control Problem

JM Eagle, among the largest manufacturers of industrial pipes, last month sued McDermott Will & Emery for allegedly disclosing 3,900 privileged documents in an e-discovery process. Now, a question is floating around the legal tech industry: what is the state of e-discovery quality control?

The pipe company, according to a whistleblower profiled in The New York Times, falsified its test results and knowingly sold flawed products to various governments. The pipes burst, causing millions of dollars in damage and replacement construction. McDermott was hired as JM Eagle's e-discovery counsel, who in turned hired contract attorneys and used software from Stratify, which is now part of Autonomy. Somewhere along the way, JM Eagle says, there was fraudulent, malicious, and/or oppressive behavior (ironic given the nature of the original claims against that company.)

"This is a huge issue for law firms!" -- that's how e-discovery expert Robert Owen reacted today when asked by our own Monica Bay about emerging news topics. Owen knows: he's a senior litigator at Sutherland, Asbill & Brennan, a member of the Sedona conference, and a Law Technology News editorial board member.

E-discovery practices, Owen said, can take steps to avoid being in McDermott's shoes: "QC lawyers overseeing the worker bees. Rigorous testing of the process. Documentation of what you did to enhance defensibility. Expert witnesses ready to testify that procedures and processes were state of art or at least of average quality."

Frank Canterino wrote of related e-discovery chaos in the SRM Legal blog last week, and there's been a hot discussion lately about who pays for e-discovery. Regardless of JM Eagle's outcome vs. McDermott, the next debate may well be, "When buying e-discovery, what's the guarantee?"

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