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.