Oops! Firm hires contract attnys & gets sued for allegedly producing privileged docs. Would paralegals make the same mistake?

 According to a post today in Ryley Carlton's blog, J-M Manufacturing Company, Inc. ("JM") alleges that the law firm of McDermott Will & Emery ("MWE") breached its fiduciary duty and committed legal malpractice by failing to sufficiently supervise a document review, and more specifically failing to adequately review documents for privilege prior to production.

JM's allegations claim that MWE represenJ0285144ted JM in connection with a series of subpoenas issued to JM from the United States. MWE allegedly worked with JM to identify approximately 160 custodians of information and hired a third-party vendor, Stratify, to run a keyword search. Following an initial keyword search, the United States government found a significant amount of privileged documents and asked MWE, as counsel for JM, to redo its production. JM alleges that MWE then employed contract attorneys to run a second keyword search, aimed at privilege, and categorized the documents into responsive and privileged categories. According to JM, aside from limited spot-checking, the firm did not thoroughly review the categorization or conduct any further privilege review.

Allegedly, 3,900 privileged documents were inadvertently produced based upon the contract attorneys' assessment of responsiveness and privilege and the then real-party-in-interest, the "Relator" refused to return the privileged material.

    "The general reputation is that it is a low-paying, dull, go-nowhere  job."

Here's the question:  Five – ten years ago, only paralegals were doing document productions and privilege reviews.  Attorneys just wouldn't be caught dead doing that "lower level" type of assignment.  What happened?  Do paralegals pay more attention to detail?  Do contract attorneys think that working on document productions is so far beneath them that they don't care?  The document review attorney position has been generally categorized as a low-paying, dull, go-nowhere job.  Sitting in a windowless room, confined to a 3 x 6 foot fold-out table with padded bridge chair days on end while staring at document after document can possibly drive you insane. 

Did paralegals get tighter supervision because they were paralegals?  Is there an assumption that attorneys know the difference between privilege and non-privilege and don't have to be carefully supervised but in reality just might need a little more guidance? (Particularly, if they're right out of law school with no experience.)

How about the decision making process?  Are attorneys more liberal whereas a paralegal, if in doubt, will hold that document back and ask a supervisor?  Would an attorney be too embarrassed to ask?  Are there simply too many documents these days that it's impossible to supervise everything?  What is happening?

Readers, what is your opinion?  Should law firms return the job of document production back to paralegals where it probably should have stayed to begin with?  Thoughts?

2 Replies to “Oops! Firm hires contract attnys & gets sued for allegedly producing privileged docs. Would paralegals make the same mistake?”

  1. Great question Chere.. but IMHO the wrong question. Over past 18 years, I’ve worked with contract Attorneys, Paralegals… and non legally trained data entry (Coders). When properly trained and supervised, all can do a terrific job.

    Universe of 160 custodians? Conservatively, that’s 1.6 million records…. more likely 5 or 6 million. And they relied on simple keyword search to segregate privilege…. not once but twice! No Concept Search… no Near Duplicate detection to assist in the quality/consistency of the review?

    The tools are out there. The ROI has been proven over and over. The methodology is sound and defensible. Oh, and it actually improves quality-of-life for the reviewers by reducing drift and fatigue!

    Whether it’s Attorneys or Paralegals, if they don’t have the right tools for the job these errors (and Sanctions) will continue to occur. Here’s hoping that more people get the right tools!

    Ed Fiducia

  2. Readers, what is your opinion? Should law firms return the job of document production back to paralegals where it probably should have stayed to begin with? Thoughts?

    Absolutely! In fact, I think law firms should give all the document review and production work to Litigation Paralegals, LLC in a Mobile Litigation Command Center right outside the clients office! It is dangerous to rely solely on technology, keyword searching, conceptual searching and the like for a privilege review prior to production. It needs to go a step further with paralegal/attorney review to cross check against a compiled cast of characters and subject matter list that nothing was inadvertently produced.

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