Is Agreement to Exclude E-Discovery Malpractice?

[ESI Attorney]

I am continually surprised when I hear of attorneys who agree with opposing counsel to exclude electronic evidence. Their justification appears to be that there is probably little evidence in electronic form, and rather than cover the cost of looking for it, counsel for both parties agree to ignore ESI evidence.

Why is this a problem? Some of the best evidence includes e-mail, not to mention letters and memos, including drafts that were never sent. If you don't at least look for electronic evidence, how do you know what exists?

On the other hand, e-discovery is expensive. For attorneys in small lawsuits, the cost of e-discovery may not seem justified.

By analogy, what if the discovery was not related to electronically stored information, but rather, some other evidence that was expensive to obtain. In such a situation, do attorneys have the discretion to exclude this evidence?

What do you think? Do attorneys commit malpractice when they agree to exclude relevant electronic evidence without at least evaluating that evidence? Is it okay for attorneys to agree to exclude e-discovery because of the cost?

[SendDoc]

I think a good argument can be made that attorneys have the authority to decide where they will look for evidence. If they estimate that the potential benefit of searching for ESI (electronically stored information) is not worth the cost, that's their decision to make. Similarly, attorneys have no obligation to gather physical evidence from every possible source -- they must decide where to search while balancing the cost.

[ESI Attorney]

In my opinion, the answer depends on the circumstances in the case. In some cases, there may be justification for not searching for ESI. In other cases, ESI evidence may be important, and excluding it could be malpractice.

[Nicholas Jordan]

It is my opinion that reluctance to allow an exposure of client's casual remarks becoming unanticipated material is a consequence of allowing busniess machines to be extensively used for personal business that cannot reasonably be conducted during business hours. Email carries no burden of privacy, thus seemingly small matters could be held to view without fear of relevance.

It may be that not restricting use of the machine to business traffic would be where the malpractice issue, if any, could be examined. I doubt that employment law will keep people from ordering online at the company site, and as well do not think those doing the ordering would be able to compartmentalize personal business sufficiently well to provide a barrier, but whatever malpractice, if any, would be in employment law - not fast track exclusion of idiosyncratic use of the machine to avoid discussing that use while burning a thousand dollars an hour druing litigation.

[Nicholas Jordan]

Further, well past the halfway house, we find sites yielding such tidbits as "However, it is important to emphasize that in the final analysis courts have traditionally held that legitimate business interests permit employers to intercept communications." .... after one gets past sufficient banners to hang any machine. Granted, Counsel should not alienate potential employees. With a clear margin, a front-line citation of personal machine use as being allowed could be justified by potential emplyees as "Well, let's say you do not want some information transmitted - I can encrypt that for you and send it as personal traffic, therefore exempt from discovery."

Now what? Let alone Export Control Restrictions, skip past Flanagan v. Epson America, Inc. I just sit here, mulling the pictue I have of average workplace computer users. Someone who could not implement Skipjack won't be working at my business no matter what. The rest of them could not get it right the first time, I shudder at the thought of hiring Board Certified Counsel and their boilerplate does not exclude email traffic that was not written by trained attorneys.

It is very difficult to explain why, seems obvious to me.

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