Corporate Counsel Question the E-Discovery Competence of their Outside Firms

What keeps corporate counsel up at night? I doubt it would surprise you to hear that e-discovery is top among the topics fueling the nightmares of in-house lawyers. What might surprise you, however, is that a key concern corporate counsel have about e-discovery is that their outside law firms are not competent to handle it.

This is among the findings of Litigation Outlook 2013, a survey just released by The BTI Consulting Group in Wellesley, Mass. The survey is based on some 350 telephone interviews with general counsel, heads of litigation and other legal-department decision makers at companies with average revenues of $15.7 billion and median revenues of $4 billion.

As reported this week by Tex Parte Blog, the Wall Street Journal Law Blog, and Above the Law, the headline-grabbing finding of the survey was its naming of the “Fearsome Foursome,” the four law firms corporate counsel most fear going up against.

Asked in the survey which firm “would you really rather not see as lead opposing counsel in a litigation case,” the four corporate counsel most frequently named were Boies, Schiller & Flexner; Jones Day; Kirkland & Ellis; and Skadden, Arps, Slate, Meagher & Flom.

But when asked about their biggest worries, e-discovery was near the top of the list, with corporate counsel complaining that e-discovery is draining their “already stretched resources.” In addition to concerns about the “cost and time drain” of e-discovery and worry about compliance and risk exposure, a large number of corporate counsel expressed a surprising lack of confidence in their outside lawyers’ competence in e-discovery.

As reported by the WSJ Law Blog, “84% of litigation counsel rated their outside lawyers a 7 or lawyer on a scale of 1 to 10 in how well they handle and manage e-discovery.”

Consider these quotes from the survey, again as reported by the Law Blog:

“First of all I don’t think law firms themselves are even qualified and they should be working with 3rd party vendors,” said one respondent, described as “Deputy General Counsel, Multinational Energy Titan.”

“Most law firms are extremely inept,” according to “Senior Counsel, Fortune 500 Media Mogul.”

I have not read the full survey, which costs $2,400 to purchase. BTI offers an executive summary, but it provides no details on the e-discovery findings.

So what are we to make of this? First off, it needs to be said that not all law firms should be painted with the broad brush of ineptitude. There is no arguing that, among lawyers and law firms broadly, a large number of them are unskilled in e-discovery. For that matter, a large number of them remain unskilled in technology, period. But there are also firms that are highly competent in e-discovery. If many firms are unqualified or even inept, some are superbly qualified and highly skilled.

Still, we are reminded time and again of Magistrate Judge John M. Facciola’s admonition from his 2008 opinion, U.S. v O’Keefe, that many aspects of e-discovery are “clearly beyond the ken of a layman” and require expertise in such areas as computer technology, statistics and linguistics. On one hand, law firms should be striving to increase their fluency in e-discovery and technology. But it is also important to know your limits, to understand what you don’t understand.

As that deputy GC quoted above said, law firms should be working with third-party vendors on many aspects of e-discovery. Lawyers should have no reluctance to bring in outside expertise. And corporate counsel should have no hesitation about urging their outside counsel to do that.



About Bob Ambrogi

Bob is known internationally for his expertise in the Internet and legal technology. He held the top editorial positions at the two leading national U.S. legal newspapers, the National Law Journal and Lawyers USA. A long-time advisor to Catalyst, Bob now divides his time between law practice and media consulting. He writes two blogs, LawSites and MediaLaw, co-authors's Legal Blog Watch, and co-hosts the weekly legal-affairs podcast Lawyer2Lawyer. A 1980 graduate of Boston College Law School, Bob is a life member of the Massachusetts Bar Foundation and an active member of the Massachusetts Bar Association, which honored him in 1994 with its President's Award.