Ethical Issues in E-Discovery

Description

The new e-discovery rules emphasize cooperation between parties and effectively force litigating attorneys to define the bounds of their discovery process. While the rules address many of the unique challenges of electronic documents, they also create some ethical gray areas.

The Model Rules of Professional Conduct provide broad ethical guidance for the discovery process. The Principles of Electronic Discovery proposed by the Sedona Conference offer additional direction. However, a number of issues of legal ethics surrounding e-discovery remain unsettled.

Failure to exercise sound ethical judgment during the e-discovery process may result in case disqualification, lost fees, disciplinary action or damage to professional reputation.

Listen as our panel of attorneys examines the legal ethics issues that commonly arise during the e-discovery process and strategies for dealing with them.

Outline

1. Duty to preserve and produce electronic evidence
   1. Model Rule 3.4 — No destruction or concealment of evidentiary documents
   2. F.R.C.P. 26(g) — Certification of discovery responses
   3. Court decisions in the absence of formal ethics opinions — Zubulake decisions on “litigation holds”
2. Electronic document management
   1. Use of third-party document management company
      1. Model Rule 7.2 — Referring client to non-lawyer vendor for data management
      2. Model Rule 5.7 — Disclosure of communications between client and third-party vendor
      3. Model Rule 1.8 — Disclosure of relationship between attorney and vendor
      4. Model Rule 5.3 — Supervising delegated work
      5. Model Rule 5.5 — Guarding against unauthorized practice of law
   2. When client takes on document management — duty to ensure client diligence in law-related services
   3. When law firm takes on document management
      1. Model Rule 3.7 — May not serve as counsel in case where likely to be necessary witness
      2. Model Rule 1.7 — Attorney’s exercise of independent judgment
      3. Model Rule 1.5 — No unreasonable fees or expenses
   4. Outsourcing document management
   5. Inadvertent data corruption — does duty of candor require disclosure to court and opposing counsel?
3. Other ethical concerns
   1. Duty of competence under Model Rule 1.1 — Staying abreast of technological advancements impacting e-discovery
   2. Metadata contained in electronic documents — ABA ethics opinion
   3. Inadvertent disclosure of privileged information — ethical obligations of party seeking production and producing party

Benefits

The panel reviewed these and other key questions: 

• What are the ethical obligations of parties that inadvertently produce or receive privileged information?
• What ethical issues arise from the use of third-party document management vendors?
• What is an attorney's ethical obligation when electronic documents are inadvertently corrupted?

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