If the application of the Standards of Professionalism and Civility to the topic of electronic discovery seems a little contrived, it is—we’re trying to make a relatively dry subject more interesting and useful.
If the sweeping proposed changes to the Federal Rules of Civil Procedure go into effect on December 2, 2014, a lot of what we discuss today may change significantly.
And an acknowledgement:
Mike and I are humbled by the experience and skill of the attorneys assembled in this room. So rather than a presentation that we are giving to you, let’s all consider this a facilitated discussion of an important topic, and please speak up with questions and comments.
In addition to detailing the requirements for admitting electronic evidence under the Federal Rules of Evidence, Lorraine offers an excellent primer on some of the technology and document management issues involved.
Admittedly, this slide is as much for the CLE board at the Utah State Bar as it is for us.
But nonetheless the preamble to the Standards of Professionalism provide an important touchstone.
This is not the Wild West, and I am not a hired gun.
I am a professional who is hired to help solve problems in a rational, peaceful, and efficient manner.
Again, so that the CLE Board at the Utah State Bar knows we did our job today . . .
Rule 1.1. Competence.
A lawyer shall provide competent representation to a client.
Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Attorneys handling e-discovery should have the requisite level of familiarity and skill to, among other things, be able to perform (either by themselves or in association with competent co-counsel or expert consultants) the following: initially assess e-discovery needs and issues, if any; implement appropriate ESI preservation procedures, including the obligation to advise a client of the legal requirement to take actions to preserve evidence, like electronic information, potentially relevant to the issues raised in the litigation; analyze and understand a client’s ESI systems and storage; identify custodians of relevant ESI; perform appropriate searches; collect responsive ESI in a manner that preserves the integrity of that ESI; advise the client as to available options for collection and preservation of ESI; engage in competent and meaningful meet and confer with opposing counsel concerning an e-discovery plan; and Produce responsive ESI in a recognized and appropriate manner.
Rule 3.4(a) also provides that “A lawyer shall not counsel or assist another person to do any such act” prohibited by the provision.
Professionalism and Civility in Electronic Discovery
Professionalism & Civility in
Rich Mrazik and Mike Young
June 17, 2014
Growing recognition that lack of
competence in e-discovery can result in
– Proposed Formal Opinion Interim No. 11-0004, The State Bar of California
– See Sharon Nelson et al., The Legal Implications of Social Networking, 22 Regent U.L. Rev.
1, 1-2 (2009/2010).
The inability to handle e-discovery properly is
“almost always a self-inflicted injury which
can be avoided by thoughtful, advance
– Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 542 (D. Md. 2007).
Why are we talking about this?
The administration of justice is a truth
seeking process designed to resolve
problems in a rational, peaceful, and
– Preamble, Utah Standards of Professionalism and Civility
Consider Standard Nos. 2, 6, 10, 17, 19,
Standards of Professionalism
e-discovery and ethical duties
Standard No. 6
Standard No. 10
Standard No. 19
Standard No. 2
Standard No. 17
Standard No. 20
Assess e-discovery needs and issues;
Analyze and understand a client’s ESI systems
Identify custodians of relevant ESI;
Implement appropriate ESI preservation
Perform appropriate searches; and
Ensure preservation and search procedures are
Lawyers shall adhere to their express promises
and agreements, oral or written, and to all
commitments reasonably implied by the
circumstances or by local custom.
Lawyers shall make good faith efforts to resolve
by stipulation undisputed relevant matters,
particularly when it is obvious such matters can
be proven, unless there is a sound advocacy
basis for not doing so.
Competence: Standard Nos. 6 and 10
In responding to document requests and
interrogatories, lawyers shall not:
(1) interpret them in an artificially restrictive
manner so as to avoid disclosure of relevant
and non-protected documents or information; or
(2) produce documents in a manner designed
to obscure their source, create confusion, or
hide the existence of particular documents.
Competence: Standard No. 19
Four major considerations:
(1) Collecting ESI in a manner that
preserves its integrity;
(2) Producing ESI in a recognized and
(3) COST; and
(4) Engaging in competent negotiations
regarding an e-discovery plan.
Negotiating an e-Discovery Plan
A fundamental principle in the client-lawyer
relationship is that, in the absence of the client’s
informed consent, the lawyer must not reveal
information relating to the representation.
This contributes to the trust that is the hallmark
of the client-lawyer relationship.
– Utah Rule 1.6 cmt. 2
Rule 1.6: Confidentiality
Interplay of Protections
A lawyer must act competently to safeguard
information relating to the representation of a
client against inadvertent or unauthorized
– Utah Rule 1.6 cmt. 16
A lack of reasonable care to protect against the
disclosure of privileged information when
producing ESI can be deemed a waiver of the
– See Kilopass Technology Inc. v. Sidense Corp., 2012 WL 1534065 at *2-3 (N.D. Cal. 2012);
Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 259-260, 262 (D. Md. 2008)
Clawback provision might not be applied where
– Fails to meaningfully engage in early e-discovery
meet & confer;
– Fails to carefully select ESI search terms; or
– Fails to carefully monitor ESI collection and
Clawback provisions also provide cold comfort
for disclosed proprietary information and/or trade
Clawback Provisions ≠ Safety Nets for Luddites
A lawyer shall not:
(a) unlawfully obstruct another party’s access to
evidence or unlawfully alter, destroy or conceal a
document or other material having potential
evidentiary value; or
(d) in pretrial procedure, make a frivolous
discovery request or fail to make reasonably
diligent effort to comply with a legally proper
discovery request by an opposing party.
Rule 3.4: Fairness
Lawyers shall not use or oppose discovery for
the purpose of harassment or to burden an
opponent with increased litigation expense.
Lawyers shall not object to discovery or
inappropriately assert a privilege for the purpose
of withholding or delaying the disclosure of
relevant and non-protected information.
Standard No. 17
• Disclosure Required
Under Rules of Civil
• Responsive to
• Within “Constructive”
Control of Party
• Work Product
• Trade Secret/
Fairness vs. Confidentiality
The procedure of the adversary system
contemplates that the evidence in a case is to be
marshaled competitively by the contending
Fair competition in the adversary system is
secured by prohibitions against destruction or
concealment of evidence, improperly influencing
witnesses, obstructive tactics in discovery
procedure and the like.
– Rule 3.4 cmt. 1.
Lawyers shall advise their clients that civility,
courtesy, and fair dealing are expected.
They are tools for effective advocacy and not
signs of weakness.
Standards No. 2