Well, no one likes to see lawyers and law firms in deep water over failing to act properly but sometimes it serves as a timely warning to others to take note and beware. Recently there have been two very high profile cases, one in the UK and one in the USA in which lawyers have been heavily criticised (and will have to pay the price) for errors in their handling of a case involving eDiscovery.
Let us take a quick look at the UK one first as I identify with that most, largely because I know the law firm involved and I also know my long standing friend, Martin Nikel, Head of eDiscovery at Kroll, who was called as an independent expert witness, and who was the first person to draw this one to my attention. The case is Cabo Concepts Ltd v MGA Entertainment, and the trial was due to commence on 27 June 2022 but shortly before the trial, MGA had to inform the court that it had missed thousands of documents in the collection process which affected the disclosure (discovery). It appears that some 800,000 documents were missed, that is never reviewed and that a number of warning signs were not heeded. Cabo had wanted independent supervision of the disclosure process but this was rejected by the case managing judge entirely on the basis of assurances from MGA that the process would be overseen by experts including their lawyers (Field Fisher and its document review provider company, Condor Alternative Legal Services). Most of the problems seem to surround the use (or misuse!) of Microsoft software, partly by attempting to use Outlook for search and collection and then the “misuse” of MS 365. One error I took particular notice of was that when filtering date range searches, the “creation date” was used instead of the sent or received dates. This is a glaring error for those who know about these things and the date hierarchy to which we all work. Overall the complaint against the law firm was in respect of lack of supervision and relying upon the client’s IT dept. Anyway, there is much more to it than this, but the end result was that MGA was ordered to pay almost 580,000 GBP (approx. R11.4m!) on account of wasted costs and the trial was adjourned until October 2024. Furthermore, of course the entire exercise has to be repeated and done properly so the cost implication for MGA and Field Fisher is horrendous. There was specific criticism of the law firm and the Partner in charge who had said they had insufficient experience and relied upon their client’s IT people.
The case in the USA involves the infamous Alex Jones who was ordered to pay $49m to the parents of a child shot in the Sandy Hook Elementary Scholl incident after he lost the defamation case brought against him. Again, I really do not want to go into the “ins and outs” of this case (largely because I do not want to give Alex Jones any more publicity) but my main interest surrounds the problems faced by the lawyer and law firm acting for Jones following the “inadvertent” production of privileged communications, to the other side. There was an attempt to “claw back” the messages via an emergency motion on the basis that the data was inadvertently sent by a paralegal. Further, there is more than a suggestion that medical records were part of the “inadvertent” production. I am also unhappy about the conduct of the Plaintiffs’ attorney for the manner in which he brought this matter to light – i.e. before the jury rather than in camera. There are a number of ways all of this could and should have been avoided but the outcome for the lawyers could be a lot more serious than financial consequences. It is suggested that they may face disciplinary action as the Texas State bar rules, make it clear that an attorney must be knowledgeable about the practice, benefits and risks of technology. A complete mess all round.
These two matters must not be ignored by lawyers everywhere, as they emphasise the fact that it is absolutely crucial for lawyers to understand eDiscovery AND to engage with experts. If there was a case involving a construction dispute or medical issues any lawyer would not hesitate to obtain independent experts such as a civil engineer and a specialist doctor, so why not treat data in the same way? Don’t try to play around with Microsoft using a client’s IT team or rely upon your own reviewers without at least having some authentication by experts and enter into a “clawback” agreement with the other side at the outset of a case to avoid the consequences of inadvertent discovery.
The only tiny grain of comfort I have is that these cases did not occur in SA and one or more of our law firms were involved. Being honest, I live in fear of that happening at some stage and I ask once again – please engage with professional experts as early as possible.