Collaboration is a Key Component that Provides Quality Control For Clients

J-M Manufacturing v. McDermott and the Advantage of Choosing a Discovery Partner, Not Just a Service Provider.

Much has been made about the filing of the malpractice lawsuit by J-M Manufacturing Company, Inc. against their former counsel McDermott Will & Emery last week. While the industry has been waiting for the other shoe to drop on the issue of liability in the handling of Electronically Stored Information ("ESI”) and the use of contract attorneys during the discovery process, this may not be the landmark case that will clarify the issues involved substantively. However, the case does raise important questions regarding the choice of service providers to help avoid the unpleasantness both parties are enduring in the J-M v. McDermott case.
The facts presented in the suit are well known by professionals in the e-discovery space. To briefly summarize, Plaintiff alleges that McDermott failed to adequately supervise the attorney reviewers or provide quality control analysis of their work prior to production in the underlying Qui Tam (whistleblower) case. Because of this, Plaintiff alleges McDermott’s inaction allowed approximately 3,900 privileged documents to be produced. While this case has only recently been filed, facts may surface that provide more insight into where the review and quality control process allegedly fell short.
The important take away from this first e-Discovery malpractice suit is that clients and outside counsel should enlist a Discovery Partner to deal with their ESI and the subsequent review that result from large data collections. The chosen Discovery Partner must not only offer the necessary services, but also consult with outside counsel and in-house counsel to ensure collection, processing, review, and production have a requisite level of quality assurance. A Discovery Partner can provide the level of consultation and quality control that may have been missing in the J-M v. McDermott case.
Typically, a traditional staffing service provider will only offer attorneys and sometimes space with review hardware and software. The traditional staffing service provider will not concern themselves with matters of quality control of the review or data issues – that’s not their area of expertise and often leave that important duty in the hands of the outside counsel.
Conversely, a traditional ESI data processing service provider will only be concerned about the culling of the data, creating a review set from the larger body of the data, and eventually assisting in producing what has been deemed responsive during the review. A traditional ESI processing service provider will not get involved in the quality control process of the work product of attorney reviewers or the outside counsel regarding findings of responsiveness or privilege – that’s not their area of expertise and also leave quality control in the hands of the outside counsel.
Outside counsel should seek to work with (and in-house counsel should insist upon) a Discovery Partner that handles both of the discovery challenges of e-Discovery and attorney review from a consultative perspective. ESI, document review, and the quality control analysis that is required of both - that’s the area of expertise for the Discovery Partner. Only when the two sides (data and review) work together can you craft an approach that will safeguard against what allegedly happened in the J-M v. McDermott malpractice suit. Outside counsel, in-house counsel, and Discovery Partner should work together to:
- Build a team approach between outside counsel, in-house counsel and the Discovery Partner to identify the problems associated with ESI and document reviews.
- Spell out the duties and responsibilities of the individual team members in regard to quality control of reviewed data at the inception of the engagement;
- Craft a quality control regimen that is layered and analyzes responsive, non-responsive, and potentially privileged documents using a combination of focused searches and reexamination of a statistically significant portion of the reviewed documents throughout the review – but especially before production of ESI;
- Leverage the flexibility of the Discovery Partner to assist in the quality control of the data and the review portion of large scale e-discovery.

Matthew Minor is General Counsel and Director of Attorney Staffing at BlueStar Case Solutions, Inc. , a Discovery Partner and Consultant that skillfully provides a full suite of discovery support solutions to national law firm and corporate clients. Mr. Minor can be contacted at mminor@bluestarcs.com.