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TIPS ON TECHNOLOGY By Kevin F. Brady, Esquire

Redaction Misstep Leads to Major Disclosures in High-Profile Case

Manafort filed a response to a report from Special Counsel Robert Mueller, where Mueller stated Manafort had not told the truth after he had agreed to cooperate with the prosecutors. In Manafort’s response, his lawyers argued that their client had been truthful. However, in reviewing the redacted filings, a reporter from The Guardian discovered that Manafort’s lawyers had failed to properly redact his court filing. Ap12

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parently, the reporter copied and pasted the blacked-out redacted text into a new document and the redacted text was visible. 4 While there are a number of ways this mistake could have happened, the bottom line is that it did happen. While perfection in handling digital information in discovery may not be attainable, mistakes like this highlight the technological complexity of how litigation grows and as mistakes are made, the risk of claims for attorney incompetence and attorney malpractice rise. It is important to understand that the legal and technical issues associated with managing even simple tasks in dealing with digital information involve unique — and greater — challenges than paper.

Legal Malpractice and eDiscovery The 2011 decision in J-M Manufacturing Co. v. McDermott Will & Emery, 5 recognized by many commentators as “the first malpractice case involving eDiscovery,” warned about the potential risk for attorneys who practice in the area of digital discovery without adequate knowledge and oversight. In the J-M Manufacturing Co., Inc. case, the plaintiff, J-M Manufacturing Company (“JM”), filed a complaint for malpractice and breach of fiduciary duty against its law firm, McDermott, Will, & Emery in a qui tam case. 6 J-M complained that the law firm, which had held itself out as knowledgeable in the area of eDiscovery, 7 breached its “duty to render legal services competently” and breached its fiduciary duty by, among other things, producing privileged documents to adverse parties, failing to supervise attorneys, and failing to supervise the vendors that the law firm hired to perform the review and production of J-M’s docu ment s. According to the first amended complaint in the case, the law

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he headlines about former Trump campaign manager, Paul Manafort, were arresting: “Paul Manafort’s Lawyers Fail to Redact Documents,” 1 “Failed Redaction Reveals Paul Manafort’s ‘lies to FBI’”2 and “Thank you for Everyone Who Can’t Redact Documents Properly.” 3 The story about the botched redaction of documents in Paul Manafort’s case generated significant attention, in part, because of the very high-stakes litigation with high-powered law firms and the mistake which involved a routine process that occurs hundreds of times each day in law firms and vendors across the country.

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DSBA Bar Journal February 2019  

DSBA Bar Journal February 2019  

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