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Risky Business

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MITIGATING THE MALPRACTICE RISKS OF E-DISCOVERY The risk of failing to understand how ESI is managed (i.e., when the process is undocumented or not standardized) heightens the challenge of finding and controlling ESI that is relevant evidence, and complying with the very different requirements of the FRCP and other pertinent rules and regulations. LATE ADOPTION ISN'T AN OPTION A frequent observation from e-discovery experts is that a significant portion — some say a majority — of their colleagues do not have the skills required to meet the requirements of e-discovery. The legal profession is often cited as a late adopter of technology (or something less euphemistic), but compelling arguments (such as the ABA's "Profile of Legal Malpractice Claims") illustrate the significant (and consistent) role of e-discovery-related issues in attorney malpractice allegations. Whether gaps in the e-discovery skills of the current population of lawyers correlate to widespread, pervasive and severe malpractice (much of which is unrecognized and unpunished), or simply a symptom of common procrastination in the profession, is a debate best left to responsible members of the bench and the bar. There's no question that litigants (clients) should be protected from ill-prepared or unskilled legal representation. After all the work required to complete law school, pass the bar and find a secure position in the ever-increasingly competitive market for lawyers, many are receiving a reality check that there's still much to learn. But the call for lawyers to get skilled in e-discovery raises a concern that lawyers might be misled into believing that some "magic curriculum" will significantly reduce or eliminate the risk inherent in their existing command of information-management processes in corporate settings. One of the core reasons that unauthorized practice of law restrictions — that the skills and knowledge required to responsibly represent a client in legal matters is the domain of qualified attorneys — make sense is in the notion that an attorney shouldn't attempt to prematurely demonstrate the technology acumen required of adversaries in the cooperative environment that judges increasingly expect. For those whose interest and professional objectives lead to a deep and broad understanding of the technically complex processes of information management, the opportunity is real — and growing. Quality training and mentoring channels are starting to appear, and leading jurists are urging law schools to close the gaps in their offerings, both for currently-matriculated students and those with continuing professional training needs. TIME TO GET SKILLED In the meantime, wise attorneys recognize that the issues of e-discovery (and the skills required to meet them) are likely well beyond the scope of CLEs and a three-day seminar. They are seeking and incorporating the experience and wisdom of senior IT professionals while they develop their own skills and knowledge. The debate over what level of skill is "enough" (versus the universally-discounted notion that perfection is required) appears far from complete, potentially providing some (if not unlimited) breathing room to get skilled. Until then, avoid the "unwise practice of IT" until you've accurately identified — and mitigated — your risk of e-discovery failure and can protect yourself from possible malpractice claims. ILTA www.iltanet.org Risky Business 43

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