Ethical Issues in E-Discovery

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?