Who – inside or outside – is ultimately responsible for electronic discovery?

I recoiled, reading a sentence in an article by Richard Donovan, a partner at Kelley Drye & Warren (Met. Corp. Counsel, Oct. 2005 at 5). The article, entitled “The Obligations of Inside and Outside Counsel Regarding Electronic Discovery,” discusses hold orders, backup tapes, instructions to key witnesses, and other steps in e-discovery under case law as well as procedural rules.

The article condescendingly acknowledges that “[m]any of these evidence preservation tasks can be performed by inside counsel, in some cases more effectively than by outside counsel.” Many? In some cases? For examples, the article notes that in-house lawyers should understand better than outside counsel the company’s IT architecture, history with document production, key witnesses, compliance with a litigation hold, and need to retain backup media. Then came the truly offending sentence.

“But outside counsel will likely be held responsible to ensure that someone performs each required task.” Why should a law firm be held more responsible than the company and its inside lawyers? Assuming capable and knowledgeable lawyers inside, how can those outside claim they face ultimately responsibility, which by the way apologizes for them patronizingly taking charge and charging handsomely for shouldering that self-serving accountability?

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