Will Your Lack of E-Discovery Expertise Affect Firm’s Fee Recovery?

The matter of Chen v Dougherty, C04-987 MJP WD WA (July 7, 2009), may finally drive home the obligation of attorneys and paralegals to be proficient when it comes to e-discovery.

In this Western District of Washington employment law case, the prevailing plaintiff’s counsel sought a fee award at the rate of $300 per hour. The court reduced the fee award to $200 per hour. Why?

Judge Pechman found that plaintiff’s counsel’s “inhibited ability to participate meaningfully in electronic discovery tells the Court that she has novice skills in this area and cannot command the rate of experienced counsel.” Ouch!

This is an important point that all attorneys and paralegals must consider. For elaboration, I turned to an expert in this area: Attorney Tom Mighell, Senior Manager of the Professional Services Group at Fios, Inc., a company that has been a pioneer in the area of electronic discovery.

Here’s what Mr. Mighell had to say:

“I think the Chen case is…indicative of the increasing impatience courts are having with counsel who are not preparing adequately for dealing with electronically stored information.

“The parties’ failure to enter into any type of discovery plan (frankly, the Defendants are likely at fault for this as well) is, in my opinion, at the root of the problem; a thoughtfully-negotiated discovery plan will, in most cases, allow the parties to reduce the amount of discovery to review, as well as the time (and dollars) spent in reviewing it.

“But it’s also the plaintiff counsel’s failure to offer or suggest search terms that further demonstrates how many lawyers are not prepared for this “brave new world” of electronic discovery.

“I really wonder how many seasoned litigators really understand the importance of developing a defensible discovery plan, which includes search terms and other methods for appropriately reducing the universe of discoverable documents.

“There’s no question that e-Discovery now requires lawyers (or their paralegals, or lit support staff) to have an understanding of the computer systems being used by their clients (or their opponents), and some have complained that lawyers shouldn’t have to know all that “technology stuff.”

“Lawyers who don’t understand e-Discovery can nevertheless put together a defensible case by working with knowledgeable paralegals, lit support staff, or even outside vendors to provide expertise.

“But regardless of a lawyer’s technological competence, the Chen case demonstrates that lawyers who don’t even follow appropriate pre-trial procedure in dealing with e-Discovery will be affected.”

E-discovery isn’t important to you because you don’t handle large cases? Think again. Even in small cases, electronic discovery can be a significant element of discovery for both parties. The small case requires that you implement a discovery plan, just as you would if you were undertaking complex litigation.

The importance of e-discovery expertise can no longer be ignored. It’s time for all paralegals and attorneys to get the training they need to use e-discovery techniques in their practices so that no Judge ever reduces their fees because they have an ‘inhibited ability to participate meaningfully in electronic discovery.’

© 2009 Vicki Voisin, Inc. Do you want to use this article in your newsletter, ezine or Web site? You can, so long as you include this entire blurb with it: Vicki Voisin, “The Paralegal Mentor”, delivers simple strategies for paralegals and other professionals to create success and satisfaction by achieving goals and determining the direction they will take their careers. Vicki spotlights resources, organizational tips, ethics issues, and other areas of continuing education to help paralegals and others reach their full potential. She publishes a bi-weekly ezine titled Strategies for Paralegals Seeking Excellence. More information is available at www.paralegalmentor.com