The McDermott e-discovery malpractice case and contract attorneys: The Posse List weighs in

1 August 2011 — Over the weekend we posted an update on the McDermott e-discovery malpractice case involving contract attorneys, vendors and privilege.  The case involves a allegedly botched privilege review.  For that post click here. 

The response from the List was enormous.  We received 980+ emails commenting on our post and the case.  

We have written a number of posts about the technological changes that have reshaped the legal industry (we hesitate to call it a profession) with a focus on what Richard Susskind, Ralph Losey and Jordon Furlong (among others) have wriiten about these past few years:  the deep and rapid technological advances (of the disruptive kind) that have led to relentless connectivity, the burgeoning electronic legal marketplace and the “decomposition of legal tasks” into component parts that can be delegated to various sources: in-sourcing, relocating, offshoring, outsourcing, subcontracting.  It has led to reducing costs for repetitive processes such as regulatory filings, document review, etc.  It has simply commoditized large sections of the law, especially document review. 

The law simply became another business, just a Law Factory.  It took the precepts of Clayton Christensen’s The Innovators Dilemma who introduced one of the most influential business ideas of our time — “disruptive innovation”, penned in 1996.   In the case of document review law firms adopted the cost-saving manufacturing principle of “just-in-time” production, and applied it to a service industry: hire attorneys “just when you need them” but only on a short-term, part-time basis.  And to make it even further removed from any hint of a profession move it to “managed review” and document review centers and out of the realm of law firms.

Result?  The McDermott case.  As many of you wrote, this case is a prime example of the myriad ethical problems in modern, assembly-line document review.   

And that’s what document reviews are today: performance under under assembly-line conditions by temps (not always lawyers) who often work 60 or 70 hours a week, ten or twelve hours a day, at rates ranging from $12.50 to $35 an hour (for English-language reviews) who are summarily fired if they fail to meet arbitrary production quotas. 

As several of you wrote:  “the work is mind-numbing and monotonous, affording none of the intellectual stimulation that a lawyer should expect.  There is often little or no quality control.  What supervision reviewers get usually has more to do with the schoolroom than with the law office, and generally focuses on production levels, tardiness, talking, number and length of breaks, etc.  Under those demoralizing conditions, mistakes are inevitable, and careless, unprofessional work is common.” 

A large number of you  pointed out reviews in DC and New York where reviewers were improperly instructed on privilege by  junior associates and/or case administrators who obviously did not know the difference between the attorney-client privilege and the attorney-work-product doctrine.  The general response?  Above our pay grade.  Don’t target yourselves by pointing out that masses of privileged communications that will be produced as a result.   We need this job.

The “schoolroom” working conditions and poor training can only be demoralizing for lawyers and will do nothing but produce indifference to standards of “professional” competence.

And as several of you said “instead of addressing these problems by improving working conditions, quality control, etc., the legal staffing agencies seem to be responding by requiring temps to sign indemnification agreements, whereby the temps agree to hold the agencies and their clients, the law firms, harmless against all claims arising out of the temps’ work”.  Normally, employers buy liability insurance to cover the errors and omissions of their employees.  This oppressive tactic reverses that arrangement, and makes the individual employee the insurer of his or her employer and its client. 

And let’s face it:  temps aren’t paid enough to cover malpractice insurance, so those who sign such contracts are simply hoping nothing bad will happen.  The McDermott case names 100 John Doe lawyers as defendants, presumably referring to the temps who worked on that review.  But one good thing is that according to Hudson they do not require temps to sign indemnification agreements.  If they had, those 100 John Does would be looking at the possibility of thousands of dollars in personal liability, for which McDermott’s malpractice insurer would certainly pursue them.  Remember that when asked to sign an indemnification agreement.

The case slogs on.  We keep you up-to-date best we can.