Five ways to avoid getting sued for discovery malpractice.

• Author: Hilson, Robert
• Position: Special Issue: Technology & the Practice of Law

Malpractice related to discovery and information-related risk is a real threat and has significant implications for attorneys' livelihoods and reputations. Here are five common triggers and how they can be prevented by smart litigators:

Trigger #1: Waiving privilege to secrets and smoking guns.

Solution: Demand a "clawback" order under Fed. R. Evid. 502(d). This one should be a no-brainer because it's so easy, but apparently clawbacks are still far from commonplace. (1) Parties involved in federal litigation should ask the court to enter a Rule 502(d) order. (2) The get-out-of-jail-free card of complex discovery, it should state something to the effect of: "The production of privileged or work-product protected documents, electronically stored information (ESI) or information, whether inadvertent or otherwise, is not a waiver of the privilege or protection from discovery in this case or in any other federal or state proceeding."

A well-worded Rule 502(d) order makes it nearly impossible to waive privilege to sensitive materials due to an inadvertent disclosure. (3) Several federal judges--including U.S. Magistrates David Waxse and Andrew Peck--have called it malpractice not to request such an order.

Trigger #2: Your vendor keeps making mistakes.

Solution: Use a solution that works and choose a competent provider. As far as e-discovery malpractice suits go, the most well-known, by far, is J-M Manufacturing Co., Inc. v. McDermott Will & Emery, Case No. BC462832 (Los Angeles Superior Court 2011), and while the named law firm in that case took most of the heat, its vendors (who shall not be named) deserve at least equal blame.

McDermott was accused of repeatedly wrongfully disclosing approximately 4,000 privileged documents to multiple adversaries in an underlying federal False Claims Act case. How do you repeatedly turn over super-secret (which they were) documents in a bet-the-company case to parties suing you for millions? Well, for one, your vendor forgets to pass 180,000 electronic records through a privilege filter. (4) And, for another, your vendor forgets to submit an additional 10,000 electronic records to outside counsel for review.

Any litigator who has seen his or her fair share of complex litigation has similar horror stories. Do your homework before you choose a solution or hire an outside vendor. Ask for references, talk to those references to be sure that you make your RFP as detailed and minutiae-ridden as possible. The company...