1. Patrick X. Fowler
Snell & Wilmer LLP
Phoenix, Arizona
pfowler@swlaw.com
602.382.6213
The Ethics of e-Discovery

2. 2
Some, But Not All, of the Ethical Rules
Applicable to e-Discovery
• E.R. 1.1: Competence
• E.R. 1.3: Diligence
• E.R. 4.4(a): Respect the Rights of Others
• E.R. 4.4(b): Inadvertent Disclosure
• E.R. 3.2: Expediting Litigation
• E.R. 3.4: Fairness to the Other Side

3. 3
Ethical Building Blocks of e-Discovery
Competence
Diligence
Expedite
Fairness

4. 4©2011 Snell & Wilmer L.L.P.
ER 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
• What does this mean in the e-Discovery
context?

5. 5©2011 Snell & Wilmer L.L.P.
ER 1.1. Competence
• Should be knowledgeable about:
◦ Basic information technology;
◦ Applicable E-Discovery procedural rules:
◦ Preservation, collection and production of
ESI (Electronically stored information)
- Issuing litigation hold directives and follow-ups
- Crafting defensible E-discovery collection and
production protocols
- Knowing what to do with the other side’s ESI
- Dealing with metadata

6. 6
ER 1.1. Competence
• Practical Considerations:
◦ “Weaponization” of e-Discovery
- Inexperienced counsel put clients at strategic
disadvantage
• Ignorance leads to mistakes, delays and higher costs
• Threat of looming sanctions may force bad settlement
◦ Courts No Longer Sympathetic or Patient
- Federal Rules Amended in 2006 – 6+ yrs ago
• Courts Are Past the Learning Curve. Why aren’t you?
- Rising Tide of Sanction Orders in e-Discovery

7. Do your best and don’t delay
• ER 1.3: Diligence
• ER 3.2: Expediting Litigation
7

8. ER 1.3 Diligence
A lawyer shall act with reasonable
diligence and promptness in
representing a client.
• Don’t procrastinate!
• Timely implemented a legal hold?
• Prepared for meaningful discussion regarding ESI at
the Rule 16 conference?
• Timely sought ESI from the other side?
8©2010 Snell & Wilmer L.L.P.

9. ER 3.2 Expediting Litigation
A lawyer shall make reasonable
efforts to expedite litigation
consistent with the interests of the
client.
• Comment: Dilatory practices bring the administration
of justice into disrepute.
• Comment: Delay should not be indulged merely for
the convenience of the advocates, or for the
purpose of frustrating an opposing party’s attempt to
obtain rightful redress or repose.
9

10. Take the High Road
ER 3.4: Fairness to Opposing
Party and Counsel
ER 4.4(a): Respect for Rights of
Others
ER 4.4(b): Handling Inadvertent
Disclosures
10

11. ER 3.4 Fairness to Opposing Party
and Counsel
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
any such act;
(Thou shall not spoliate!)
11

12. ER 3.4 Fairness to Opposing Party
and Counsel
A lawyer shall not:
(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;
12

13. ER 4.4(a) Respect for Rights of Others
(a) In representing a client, a lawyer shall
not:
• use means that have no substantial
purpose other than to embarrass, delay,
or burden any other person, or
• use methods of obtaining evidence that
violate the legal rights of such a person.
13

14. ER 4.4(b) Inadvertent Disclosures
A lawyer who receives a document and
knows or should reasonably know that
the document was inadvertently sent
shall
• promptly notify the sender, and
• preserve the status quo for a
reasonable period of time in order to
permit the sender to take protective
measures.
14

15. Questions?
Patrick X. Fowler
Snell & Wilmer LLP
Phoenix, Arizona
pfowler@swlaw.com
602.382.6213