Ethical Challenges in Ediscovery


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Electronic evidence poses new ethical dangers for practicing attorneys. Learn about important ethical considerations for attorneys as they relate to ediscovery and the impact that new technologies, such as cloud computing and social networking, may have on ethical responsibilities.

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Ethical Challenges in Ediscovery

  1. 1. Ethical Challenges of Ediscovery Ethical Challenges in Ediscovery
  2. 2. 2
  3. 3. Discussion Overview The Rules in Relation to Ediscovery New Technologies & Issues 3
  4. 4. The Rules in Relation to Ediscovery  Ethical obligations do exist when it comes to ediscovery  Courts are more clearly articulating counsel’s affirmative duty to act competently and diligently  Counsel should expect to be held to a higher standard than ever before 4
  5. 5. Amended Ethics Rules 5  In August 2012, The ABA House of Delegates approved recommendations sponsored by the ABA Commission on Ethics 20/20 » Of special interest to ediscovery practitioners is Recommendation 105A, which amends existing rules as follows:  Rule 1.0 – “Writing” now includes an “electronic communication”  Rule 1.1 – Comment [8] adds an attorney’s duty to stay informed about changes in practice and relevant litigation technology  Rule 1.6 – Adds section (c), identifying duty to prevent inadvertent disclosure of confidential client information  Rule 4.4 – Adds “electronically stored information” to provision about sending prompt notice when lawyer receives third party information
  6. 6. 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.” 6
  7. 7. Rule 1.1, Cmt. [8]: Maintaining Competence “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology…” 7
  8. 8. Rule 1.6: Confidentiality of Information “(c) A lawyer shall make reasonable efforts to prevent the inadvertent disclosure of, or unauthorized access to, information relating to the representation of a client.” 8 …what efforts are reasonable to prevent disclosure?
  9. 9. Duty of Confidentiality: Privilege Issues Amidst growing data volumes, protecting privilege in the era of electronic discovery is growing increasingly difficult » Counsel should consider entering into a protective order, clawback agreement or quick peek agreement » Counsel should also familiarize themselves with Fed. R. Evid. 502 on inadvertent disclosure 9
  10. 10. Rule 3.4: Fairness Unobstructed Process & Access to Evidence; Preservation “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. A lawyer shall not counsel or assist another person to do any such act….” 10
  11. 11. Duty of Fairness: Unobstructed Process & Access to Evidence Scott Adams, Inc./Dict. by UFS, Inc. 11
  12. 12. Rule 3.4: Fairness Non-Frivolous Litigation Tactics “A lawyer shall not: (d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent efforts to comply with a legally proper discovery request by an opposing party….” 12
  13. 13. Maintaining the Integrity of the Profession Court awarded $1,049,850.04 in attorney’s fees and costs as a sanction for discovery abuse » “Defendants’ misconduct affected the entire discovery process since the commencement of this case.” – Victor Stanley, Inc. v. Creative Pipe, Inc., No. MJG-06- 2662 (D. Md. Jan. 24, 2011) (part of the “Victor Stanley II” decisions that began in September 2010). Order was affirmed by the District Court: Victor Stanley, Inc. v. Creative Pipe, Inc., Case 8:06-cv-02662-MJG (D. Md. June 15, 2011). 13
  14. 14. New Technologies & Issues Use of social networking sites and blogs creates potential for ethical violations or disciplinary action for misconduct As an example, the Florida Bar reprimanded and fined an attorney $1,200 for violating ethics rules, by writing on a courthouse blog the judge was an “evil, unfair witch” with an “ugly, condescending attitude” 14