Legal Malpractice

E-discovery and Legal Malpractice

By (Andrew Lavoott Bluestone)

We grant that it is a stretch to jump from new statutes to legal malpractice, but it is a given that when the rules change, there will be mistakes made.  Mistakes, the eternal produce of human endeavor is known as legal malpractice within the legal community. 

It is no novelty, nor a surprise that negligent handling of discovery might lead to dismissals and sanctions.  U.S. Judge Shira Scheindlin's decisions in Zubulake v. UBS Warburg  and Pension Committee are considered groundbreaking, yet merely restate and interpret the existing law. 

Parties in litigation are required to save and exchange electronically stored information.  No clearer message could be stated in the twin decisions.  Now, the State of New York has adopted a set of regulations which are calculated to streamline the discovery proceedings.

Preliminary conferences now must include a complete discussion of ESI, and provisions must be made to preserve and  exchange ESI.  Failures by attorneys to issue "litigation holds" and to preserve ESI will inevitably lead to problems, sanctions and dismissals.  Legal malpractice litigation will follow, as surely as day follows night.

Full post as published by New York Attorney Malpractice Blog on August 31, 2010 (boomark / email).