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EDI 2009- Ethics and E-Discovery New and Emerging Issues

EDI 2009- Ethics and E-Discovery New and Emerging Issues






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    EDI 2009- Ethics and E-Discovery New and Emerging Issues EDI 2009- Ethics and E-Discovery New and Emerging Issues Presentation Transcript

    • Ethics and E-Discovery New and Emerging Issues Edward H. Rippey Partner, Covington & Burling LLP
    • Agenda
      • Ethics of Off-Shoring
      • Ethics of Self Collection
      • Ethics and Metadata
      • Ethics and Privilege
    • Off-Shoring
      • Off-shoring of lawyer and non-lawyer tasks
      • Advantages
        • Cost savings
        • Efficiency
        • Other
      • Potential Risks or Concerns
        • Confidentiality concerns
        • Language barriers
        • Lack of ability to properly supervise
        • Ownership and control of documents
    • Off-Shoring: The Ethics
      • ABA Opinion
      • State Opinions
        • North Carolina State Bar
        • Florida State Opinion
      • Other Opinions
        • New York City
        • San Diego County
        • Los Angeles County
    • Key Take Away Points
      • Check your specific jurisdiction’s ethics rules and case law before engaging in off-shoring
      • Generally
        • Off-Shoring legal services permitted
        • Adequate supervision is required
        • Client consent may be required
        • Steps to safeguard confidential information and privileged communications must be taken
        • Supervising lawyer ultimately responsible for work of off-shore attorneys
    • Ethics of Self Collection
      • “Self collection” is the process of the client collecting all or part of documents pursuant to a discovery request.
      • Advantages
        • Can be most cost effective
        • Can be more efficient (client knows electronic systems better than outside counsel)
      • Potential Risks
        • May be scrutinized more by courts
        • Potential for error may be greater
        • Could disadvantage outside counsel in motions practice (if counsel does not fully understand the steps taken to collect documents)
    • Key Considerations
      • Ensure that both inside and outside counsel supervises any self collection effort.
      • Be able to articulate search methodology to opposing counsel or to a court
      • Consider outside counsel collection of priority custodians
    • Ethics and Metadata
      • “Metadata” is data about data.
      • Metadata must be preserved.
      • Confer with opposing counsel as to which metadata fields should be produced.
      • Use outgoing “scrubber,” which removes certain metadata, to send documents outside your place of business.
    • Ethics and Metadata
      • Obligation to ensure that clients’ metadata is protected from inadvertent production/disclosure
      • Whether it is ethically permissible to “mine” metadata received from opposing party
        • Split in jurisdictions
        • Mining Not Permitted: ( e.g., Alabama, New York, and Maine)
        • Mining Permitted: ( e.g., ABA, Colorado, and Maryland)
    • Ethics and Privilege
      • Privilege issues arise in the context of e-discovery
        • Greater chance that documents will be inadvertently produced
      • Ethical requirements of counsel receiving inadvertently produced privileged information
        • Vary from jurisdiction to jurisdiction
        • Waiver issues