Ethical Issues and E-Discovery: Practice Pointers for Young Lawyers

Electronic discovery (e-discovery) can raise ethical problems for litigators—particularly for young lawyers, who are frequently given significant responsibility for e-discovery early in their careers. As e-discovery has proliferated, so, too, have the demands on lawyers to ensure fairness and maintain ethical standards in navigating the collection, review, and production of millions of pages of documents. However, the relatively inexperienced associates in charge often bear conflicting responsibilities when making critical discovery decisions that can directly constrain the fairness of the procedural process and affect case outcomes. These attorneys’ professional and ethical obligations will inevitably conflict, and the choices made during e-discovery often function in gray areas not formally outlined in the model or jurisdictional ethics rules.

It’s important for young lawyers to give due consideration to the ethical implications of their decisions, to document how and why they make certain decisions in the process of production, and to try to get second opinions when they sense ethical dilemmas. This article provides practice pointers to help navigate attorneys’ ethical obligations in the context of e-discovery.

E-Discovery and Junior Attorneys

In the digital age, document production and its associated costs have skyrocketed, and attorneys are increasingly called upon to bring technical competence to their practice. N.Y. Rules of Pro. Conduct r. 1.1 (stating that attorneys must represent their clients competently: “A lawyer shall not intentionally: (1) fail to seek the objectives of the client through reasonably available means permitted by law and these Rules; or (2) prejudice or damage the client during the course of the representation except as permitted or required by these Rules.”). Furthermore, complex litigation now regularly involves millions of pages of discovery to review and produce, given the wealth of electronically stored information (ESI) and the scope of an attorney’s duty to make disclosures and respond to discovery requests based on the information then known or reasonably available to the party in accordance with Rule 26 of the Federal Rules of Civil Procedure and parallel state procedural rules. In this environment, attorneys who are responsible for supervising document review are often required to make critical decisions with a large impact on the outcome of litigation—as well as major implications regarding the fairness of civil practice more generally.

Responsibility for various aspects of document review and production is often given to junior practitioners. That this work is delegated to and handled by junior attorneys does not mean that it is unimportant. As the gatekeepers of discovery, these attorneys, who are often new and relatively inexperienced, will inevitably be forced to confront difficult decisions regarding how to sift through the information, how to determine what to produce according to ethical guidelines, how to provide the most competent representation in their clients’ interests, and how to minimize costs for their clients.

For example, junior associates might be required to craft appropriate search terms to mine their clients’ data. Largely unsupervised by senior attorneys, they may hold meet and confers with opposing counsel to determine search term protocol. They may discover additional responsive material after document disclosure has concluded. They may be asked to review their clients’ conversations to determine whether attorney-client or work-product privileges actually apply. Associates are expected to find every potentially helpful fact or document, in keeping with professional rules requiring them to vigorously represent their clients’ interests. Id. r. 1.3(a) (“A lawyer shall act with reasonable diligence and promptness in representing a client.”). Conversely, they may feel pressure to “ignore” the existence of certain documents, or to hide or minimize the impact of the documents that could damage their client’s cases. All of these circumstances implicate ethical considerations—and litigation outcomes.

Transparency in Search Parameters Used to Cull ESI

Attorneys must provide all relevant and requested documents, but do they need to help opposing counsel ask the right questions? The ethical rules are ambiguous as to the scope of the lawyer’s duty to disclose, particularly where opposing counsel may not have propounded discovery production requests with the requisite specificity. It is sometimes unclear whether the duty to disclose applies to acts of omission or simply to an attorney’s affirmative suppression of evidence. See, e.g., id. r. 3.3 (“In the course of representing a client, a lawyer shall not knowingly make a false statement of fact or law to a third person.”).

Omitting production of relevant documents could lead to sanctions or increased litigation costs down the road if these documents are uncovered in some way later in the process through subsequent requests or other forms of discovery. Where an attorney knows the questions that opposing counsel must ask to get the relevant documents, like the relevant search term needed to bring up certain information, there is likely an ethical duty to affirmatively disclose.

The duty to affirmatively disclose is also unclear as to documents that straddle the line of relevance. Where there is a reasonable case to be made that a document is nonresponsive or would be privileged, there is an assumption that most lawyers would not disclose, weighing their client’s interest as a factor in the analysis. Nonetheless, this instinct weighs on the side of unethical: where a document is bad for one’s client in the instant litigation, it is likely relevant to discovery.

Another area relevant to the ethical debates over affirmative production is when lawyers become aware of potential sources of client data that may be expensive and burdensome to mine. On the one hand, lawyers should make reasonable efforts to reduce the costs of representation. Nonetheless, this concern should not override lawyers’ ethical obligations to produce all responsive evidence under New York Rules of Professional Conduct Rule 3.4. Id. r. 3.4(a)(1) (“A lawyer shall not . . . suppress any evidence that the lawyer or the client has a legal obligation to reveal or produce.”); id. r. 3.4 cmt. 2 (“Evidence that has been properly requested must be produced unless there is a good-faith basis for not doing so.”). To avoid ethical transgressions, attorneys are better off disclosing the existence of relevant documents and working with the court and opposing counsel to determine who should shoulder the cost burdens associated with this production.

In all instances, young attorneys navigating these decisions should document the process by which they execute e-discovery so that they can show why these choices made sense under the circumstances.

Inadvertent Disclosure of Privileged Documents

Where attorneys know or have reason to believe that opposing counsel inadvertently disclosed documents that should have remained privileged, they face conflicting professional and ethical obligations about how and when to bring this to counsel’s attention.

Failing to review a relevant and helpful document conflicts with a lawyer’s duty of diligence, restricting the lawyer’s ability to put on the best case possible and provide competent legal services under New York Rules of Professional Conduct Rules 1.1 and 1.3. And while lawyers are required to promptly inform opposing counsel about the inadvertent disclosures of privileged documents, they are not formally barred by the ethics rules from reading the document before doing so. See id. r. 4.4(b) (“A lawyer who receives a document, electronically stored information, or other writing relating to the representation of the lawyer’s client and knows or reasonably should know that it was inadvertently sent shall promptly notify the sender.”).

Nonetheless, ethically speaking, reading the documents with the knowledge that they were produced inadvertently controverts the spirit of discovery rules and preserving fairness. Furthermore, lawyers have an ethical obligation to promote and protect client confidentiality, even when it is not their client on the line.

Ethically, lawyers must disclose inadvertently produced documents, though there is no ethical requirement that they refrain from reviewing the document first.

Balancing an Ethical Duty to Disclose with Client Privacy Concerns

Ethically, there is no formal requirement forcing lawyers to make their clients’ or witnesses’ information available to opposing counsel outside of the formal channels of discovery. For example, in Formal Opinion 745, the New York County Lawyers Ethics Committee concluded that attorneys may advise clients as to social media use and that “there is no ethical constraint on advising a client to use the highest level of privacy/security settings that is available. Such settings will prevent adverse counsel from having direct access to the contents of the client’s social media pages, requiring adverse counsel to request access through formal discovery channels.” Where social media posts are relevant to the litigation at issue and responsive to requests for discovery, lawyers may not advise their clients to delete posts, but they can advise that their clients change who can see such posts.

Attorneys must remain careful to ensure they are not instructing clients to delete information relevant to litigation where such litigation is reasonably anticipated. Where it is unclear whether or not litigation is on the horizon, lawyers should play it safe, ensure that they inform their clients of the possibility of sanctions upon deletion, and ask a senior attorney whether or not such evidence must be preserved.

Conclusion

In all events, junior associates should not hesitate to consult supervisory attorneys, and senior attorneys delegating responsibility for various aspects of e-discovery should ensure that they provide opportunities for these conversations. Rule 5.2 of the New York Rules of Professional Conduct provides guidance in this regard:

(a) A lawyer is bound by these Rules notwithstanding that the lawyer acted at the direction of another person.

(b) A subordinate lawyer does not violate these Rules if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.

Id. r. 5.2(a)–(b).

Furthermore, comment 2 of Rule 5.2 provides thus:

When lawyers in a supervisor-subordinate relationship encounter a matter involving professional judgment as to ethical duty, the supervisor may assume responsibility for making the judgment. Otherwise, a consistent course of action or position could not be taken. . . . [I]f the question is reasonably arguable, someone has to decide upon the course of action. That authority ordinarily reposes in the supervisor, and a subordinate may be guided accordingly. To evaluate the supervisor’s conclusion that the question is arguable and the supervisor’s resolution of it is reasonable in light of applicable law, it is advisable that the subordinate lawyer undertake research, consult with a designated senior partner or special committee, if any . . . , or use other appropriate means.