Ethical Challenges of Ediscovery

Ethical Challenges in Ediscovery

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Discussion Overview

The Rules in Relation to Ediscovery

New Technologies & Issues

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The Rules in Relation to Ediscovery Ethical obligations do exist when it comes to ediscovery

Courts are more clearly articulating counsel’s affirmative duty to act competently and diligently

Counsel should expect to be held to a higher standard than ever before

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Amended Ethics Rules

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In August 2012, The ABA House of Delegates approved recommendations sponsored by the ABA Commission on Ethics 20/20

» Of special interest to ediscovery practitioners is Recommendation 105A, which amends existing rules as follows:

Rule 1.0 – “Writing” now includes an “electronic communication”

Rule 1.1 – Comment [8] adds an attorney’s duty to stay informed about changes in practice and relevant litigation technology

Rule 1.6 – Adds section (c), identifying duty to prevent inadvertent disclosure of confidential client information

Rule 4.4 – Adds “electronically stored information” to provision about sending prompt notice when lawyer receives third party information

Rule 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.”

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Rule 1.1, Cmt. [8]: Maintaining Competence

“To maintain the requisite

knowledge and skill, a

lawyer should keep

abreast of changes in the

law and its practice,

including the benefits

and risks associated with

relevant technology…”

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Rule 1.6: Confidentiality of Information

“(c) A lawyer shall make

reasonable efforts to

prevent the inadvertent

disclosure of, or

unauthorized access to,

information relating to the

representation of a client.”

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…what efforts are reasonable to prevent disclosure?

Duty of Confidentiality: Privilege Issues

Amidst growing data volumes, protecting privilege in the era of electronic discovery is growing increasingly difficult

» Counsel should consider entering into a protective order, clawback agreement or quick peek agreement

» Counsel should also familiarize themselves with Fed. R. Evid. 502 on inadvertent disclosure

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Rule 3.4: Fairness

Unobstructed Process & Access to Evidence;

Preservation

“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

do any such act….”

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Duty of Fairness: Unobstructed Process &

Access to Evidence

Scott Adams, Inc./Dict. by UFS, Inc.

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Rule 3.4: Fairness

Non-Frivolous Litigation Tactics

“A lawyer shall not:

(d) in pretrial procedure,

make a frivolous discovery

request or fail to make

reasonably diligent efforts to

comply with a legally proper

discovery request by an

opposing party….”

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Maintaining the Integrity of the Profession

Court awarded $1,049,850.04 in attorney’s fees and costs as a sanction for discovery abuse

» “Defendants’ misconduct affected the entire discovery process since the commencement of this case.” – Victor Stanley, Inc. v. Creative Pipe, Inc., No. MJG-06-

2662 (D. Md. Jan. 24, 2011) (part of the “Victor Stanley II” decisions that began in September 2010). Order was affirmed by the District Court: Victor Stanley, Inc. v. Creative Pipe, Inc., Case 8:06-cv-02662-MJG (D. Md. June 15, 2011).

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New Technologies & Issues

Use of social networking sites and blogs creates potential for ethical violations or disciplinary action for misconduct

As an example, the Florida Bar reprimanded and fined an attorney $1,200 for violating ethics rules, by writing on a courthouse blog the judge was an “evil, unfair witch” with an “ugly, condescending attitude”

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