Extract from article by Casey Sullivan and Todd Eastman
While it’s the few headline-garnering cases that attract national attention, mistakes like this happen all the time. Virtually any attorney who’s ever practiced complex litigation has a horror story or two—a production poorly done, a confidentiality review botched, a disk drive full of client information lost.
A large part of the problem stems from outdated, highly complex technology provided by third-party vendors. Poorly made eDiscovery software can take months to learn and years to master, leading to situations like Wells Fargo’s—users who simply do not understand the tools they are using and place their faith in a vendor’s ability to manage discovery for them. This more prevalent risk of human error only exacerbates the issue, and when something goes wrong, it is the attorneys (who are bound by professional duties) not vendors (who are not) who will face potential malpractice claims.
The solution is two-pronged. Better education is a must, and the pleas for better training will only get louder as more of these incidents become public. But lawyers will never be technologists. Instead, it is incumbent upon technology providers to build software that is simple yet powerful, with safeguards to protect attorneys from themselves.