E-discovery and the ever-growing quantity and sources of relevant documents, coupled with economic pressures, have conflated an attorney’s professional role with project management skills. Attorneys need to understand certain basic technology fundamentals and be able to apply them to their general practice. Not understanding the technological aspects of practicing law can lead to many issues, from poor results with high costs, to inadvertent production, ethics violations, sanctions and more.
The Potential Problem
A striking example of the potential for problems occurred in In Re Fannie Mae Securities Litigation, 552 F.3d 814 (D.C. Cir. 2009).??There, the court ordered the Office of Federal Housing Enterprise Oversight to spend over $6 million (and more than 9 percent of its total annual budget) to comply with a subpoena for electronic documents even though the agency was not a party to the action. This stemmed from a simple agreement to cooperate during a hearing on a Rule 45 subpoena and restore a series of backup tapes, search them using search terms, and produce relevant, non-privileged emails and attachments. The 400 search terms yielded approximately 660,000 documents.
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