A tale of caution. Recently, a client sued its lawyer for negligence in reviewing documents for privilege before producing them. Right now, the lawsuit has been initiated, and we will have to wait to see what happens as the record develops. For a complete copy of the complaint, click here.
In a lawsuit filed June 2, 2011 in the California Superior Court, J-M Manufacturing Company, Inc. (“JM”) alleges that the law firm of McDermott Will & Emery (“MWE”) breached its fiduciary duty owed to JM and committed legal malpractice by failing to sufficiently supervise the document review, and more specifically failing to adequately review documents for privilege prior to production.
According to JM’s allegations, MWE represented JM in connection with a series of subpoenas issued to JM from the United States. MWE allegedly worked with JM to identify approximately 160 custodians of information and hired a third-party vendor, Stratify, to run a keyword search. JM claims that following an initial keyword search, the United States government found a significant amount of privileged documents and asked MWE, as counsel for JM, to redo its production with a privilege review. JM alleges that MWE next employed contract attorneys to run a second keyword search, aimed at privilege, and categorized the documents into responsive and privileged categories. However, according to JM, aside from limited spot-checking, the firm did not thoroughly review the categorization or conduct any further privilege review. Allegedly, 3,900 privileged documents were inadvertently produced based upon the contract attorneys’ assessment of responsiveness and privilege and the then real-party-in-interest, the “Relator” refused to return the privileged material.