The age-old adage of leaving it to the IT department when it comes to issues related to electronic discovery is a thing of the past. Attorneys under ABA Model Rule 1.1 bear a duty to provide competent representation to their clients. Encompassed within this duty of competence is the duty to stay “abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” See ABA Model Rue 1.1, cmt. 8. With the emergence of new technology and expansion of email use has come an exceeding responsibility on lawyers to locate, review, and produce electronic discovery in connection with litigation, which raises various ethical issues that lawyers must consider.
Preservation and Collection of Electronic Information
ABA Model Rule 3.4 provides that a “lawyer shall not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value.” To avoid spoliation claims and adhere to Model Rule 3.4, attorneys must have a firm grasp on their client’s email and network infrastructure to be able to competently identify, preserve, and collect relevant documents. The first step in the process is issuing a litigation hold. Competent representation requires lawyers to have knowledge of the legal principles governing preservation and to be able to both identify their client’s sources of potentially relevant electronically stored information (ESI) and implement the litigation hold that satisfies their client’s obligations to preserve relevant ESI. To ensure that electronic documents and data are properly preserved, the collection process should include interviews with document custodians to gain a better understanding of the location of all potentially relevant ESI.
The preservation-and-collection process also raises ethical issues related to the duty of candor under ABA Model Rule 3.3. Specifically, this process raises the following issues related to counsel’s ability to accurately represent to both opposing counsel and the court: (1) the client’s capabilities related to locating and producing ESI in an agreed-upon format; (2) the thoroughness of the searches and review performed; and (3) the contents of the production of electronic discovery.
Scope of Electronic Discovery
The scope of electronic discovery in any particular case will depend largely upon the jurisdiction. When in federal court, parties are obligated under Federal Rule of Civil Procedure 26(f) to address the scope of electronic discovery during the Rule 26(f) conference. Many courts have implemented local rules that require counsel to exchange each party’s electronic sources and the location of any potentially relevant ESI at the outset of the case, among other information. A lawyer cannot competently represent its client in these proceedings without having a fundamental understanding of the client’s electronic infrastructure and the contents thereof.
In jurisdictions that don’t impose court-mandated ESI conferences, it has become commonplace for parties to negotiate and enter into ESI protocols. Again, to be able negotiate these agreements on behalf of one’s client requires attorneys to be competent in a number of ESI-related topics including knowledge regarding the client’s ESI sources, the amount of data, any burdens associated with collection, review, and production of the data, preparing search term, and agreeing on production formats.
Production of Electronic Documents
The proliferation of ESI requires lawyers to evaluate electronic discovery costs and burdens when producing electronic documents. The implementation of the proportionality standard under Federal Rule of Civil Procedure 26(b)(1) necessitates that lawyers have a fundamental understanding of the cost and burden that a client would incur in connection with responding to document requests. Without this information, viable objections to discovery requests on proportionality grounds could be waived, which could have curtailed time and expenses for clients associated with producing ESI.
The duty of confidentiality of information under ABA Model Rule 1.6 requires that lawyers take precautions against inadvertently disclosing privileged information and documents during electronic discovery. It is growing increasingly difficult to protect privileged documents from inadvertent production with the expansion of ESI. However, attorneys have a bevy of tools at their disposal to assist them in fulfilling such obligations. In addition to protective orders and clawback agreements, recent amendments to the Federal Rules of Evidence provide yet another option. Parties should consider entering into Rule 502(d) orders under Federal Rule of Evidence 502. Such orders mandate the return of privileged documents produced during discovery without parties fearing that the disclosure waives attorney-client or work-product privileges. Confidentiality obligations under Model Rule 1.6 for attorneys and law firms also extend to implementing data-security measures to protect clients’ ESI from data breaches.
In the ever-expanding world of electronic discovery these are just some of many ethical issues that lawyers must consider. A baseline level of competence requires lawyers to be knowledgeable regarding the benefits and risks of relevant technology when undertaking electronic discovery, to avoid potential pitfalls that could result in judicial sanctions, ethical violations, and malpractice claims.
Tyler D. Trew is an associate with Liskow & Lewis in New Orleans, Louisiana.