Professionalism and Civility in Electronic Discovery


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  • REM

    Two disclaimers:

    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.
  • REM

    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.
  • REM

    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.
  • REM

    Again, so that the CLE Board at the Utah State Bar knows we did our job today . . .
  • REM

    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.

  • REM

    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.
  • REM
  • REM
  • REM
  • 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

    1. 1. Professionalism & Civility in Electronic Discovery Rich Mrazik and Mike Young June 17, 2014
    2. 2. 2  Growing recognition that lack of competence in e-discovery can result in ethical violations. – 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 preparation.” – Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 542 (D. Md. 2007). Why are we talking about this?
    3. 3. 3  The administration of justice is a truth seeking process designed to resolve problems in a rational, peaceful, and efficient manner. – Preamble, Utah Standards of Professionalism and Civility  Consider Standard Nos. 2, 6, 10, 17, 19, and 20. Overview: Standards of Professionalism
    4. 4. 4 Overview: e-discovery and ethical duties ELECTRONIC DISCOVERY Duty of Competence Duty of Confidentiality Duty of Fairness Standard No. 6 Standard No. 10 Standard No. 19 Standard No. 2 Standard No. 17 Standard No. 20
    5. 5. 5 Competent Representation Knowledge Skill Thoroughness Preparation Rule 1.1: Competence
    6. 6. 6  Assess e-discovery needs and issues;  Analyze and understand a client’s ESI systems and storage;  Identify custodians of relevant ESI;  Implement appropriate ESI preservation procedures;  Perform appropriate searches; and  Ensure preservation and search procedures are executed properly. Competence Applied: Initial Stage
    7. 7. 7  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
    8. 8. 8 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
    9. 9. 9 Four major considerations: (1) Collecting ESI in a manner that preserves its integrity; (2) Producing ESI in a recognized and appropriate manner; (3) COST; and (4) Engaging in competent negotiations regarding an e-discovery plan. Competence Applied: Negotiating an e-Discovery Plan
    10. 10. 10  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
    11. 11. 11 Attorney-Client Privilege Rule of Confidentiality Work Product Doctrine Confidentiality: Interplay of Protections
    12. 12. 12  A lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure. – 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 attorney-client privilege. – 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) Confidentiality Applied
    13. 13. 13  Clawback provision might not be applied where an attorney: – 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 production.  Clawback provisions also provide cold comfort for disclosed proprietary information and/or trade secrets. Confidentiality Applied: Clawback Provisions ≠ Safety Nets for Luddites
    14. 14. 14 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
    15. 15. 15  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. Fairness: Standard No. 17
    16. 16. 16 Fairness • Disclosure Required Under Rules of Civil Procedure • Responsive to Discovery Request • Within “Constructive” Control of Party Confidentiality • Attorney-Client Privilege • Work Product • Trade Secret/ Proprietary • Sensitive Disclosure Non-Disclosure Fairness vs. Confidentiality
    17. 17. 17  The procedure of the adversary system contemplates that the evidence in a case is to be marshaled competitively by the contending parties.  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. Fairness Through Adversarial Advocacy
    18. 18. 18  Lawyers shall advise their clients that civility, courtesy, and fair dealing are expected.  They are tools for effective advocacy and not signs of weakness. Fairness: Standards No. 2
    19. 19. 19  Mike Young – – 801.536.6963  Rich Mrazik – – 801.536.6931 THANK YOU