To what Extent do Lawyers need to Supervise Document Disclosure?

Associate

November 8, 2021

In 2020, several US court decisions dealt with lawyers who failed to properly supervise the discovery process, for example by allowing their clients to “self-collect” records (see Equal Emp’t Opportunity Comm’n v. M1 5100 Corp., Civil No. 19-cv-81320-DIMITROULEAS/MATTHEWMAN (S.D. Fla. Jul. 2, 2020)) or not taking reasonable effort to ensure that the client produced all required documents (see Optronic Techs. v. Ningbo Sunny Elec. Co., Case No. 16-cv-06370-EJD (VKD) (N.D. Cal. Jun. 1, 2020)).

In the first example, the lawyer received a warning from the judge, but escaped sanctions because the discovery process was not yet complete. … Read More

Cost-Effective Document Disclosure in Construction Arbitration

Martin Felsky

Senior Counsel

October 22, 2021

There are four rules-based approaches to document disclosure in legal disputes. From broadest to narrowest they are:

Relevant: Each party discloses all documents relevant to the issues in dispute.
Responsive: Each party discloses documents responsive to requests by the other party.
Material: Each party discloses only those documents that could have an impact on the outcome of the dispute.
Reliance: Each party discloses only those documents upon which it intends to rely.

Each of these approaches is often supplemented by two underlying principles: first, a party can always be ordered to produce a document the arbitrator deems relevant (which enhances fairness but expands disclosure), and second, all disclosure models may be subject to proportionality, so that the cost of disclosure does not overtake its value to the parties.… Read More