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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
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Ethical Building Blocks of e-Discovery
CompetenceDiligenceExpediteFairness
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©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
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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
Do your best and don’t delay
• ER 1.3: Diligence
• ER 3.2: Expediting Litigation
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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.
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.
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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
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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
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;
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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.
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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.
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