Ethical Issues in E-Discovery
Addressing New Ethical Dilemmas
Recording of a 90-minute CLE webinar with Q&A
Outline
- Duty to preserve and produce electronic evidence
- Model Rule 3.4 — No destruction or concealment of evidentiary documents
- F.R.C.P. 26(g) — Certification of discovery responses
- Court decisions in the absence of formal ethics opinions — Zubulake decisions on “litigation holds”
- Electronic document management
- Use of third-party document management company
- Model Rule 7.2 — Referring client to non-lawyer vendor for data management
- Model Rule 5.7 — Disclosure of communications between client and third-party vendor
- Model Rule 1.8 — Disclosure of relationship between attorney and vendor
- Model Rule 5.3 — Supervising delegated work
- Model Rule 5.5 — Guarding against unauthorized practice of law
- When client takes on document management — duty to ensure client diligence in law-related services
- When law firm takes on document management
- Model Rule 3.7 — May not serve as counsel in case where likely to be necessary witness
- Model Rule 1.7 — Attorney’s exercise of independent judgment
- Model Rule 1.5 — No unreasonable fees or expenses
- Outsourcing document management
- Inadvertent data corruption — does duty of candor require disclosure to court and opposing counsel?
- Use of third-party document management company
- Other ethical concerns
- Duty of competence under Model Rule 1.1 — Staying abreast of technological advancements impacting e-discovery
- Metadata contained in electronic documents — ABA ethics opinion
- 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?
Faculty

David R. Cohen
Partner
K&L Gates
He concentrates in e-discovery issues, technology and intellectual property litigation, insurance coverage, real estate... | Read More
He concentrates in e-discovery issues, technology and intellectual property litigation, insurance coverage, real estate and other complex litigation, and appeals.
Close
David K. Isom
Shareholder
Greenberg Traurig
He co-chairs the firm's National E-Discovery and E-Retention Practice Group and consults throughout the country on... | Read More
He co-chairs the firm's National E-Discovery and E-Retention Practice Group and consults throughout the country on electronic discovery and electronic document retention.
Close
Allison O. Van Laningham
Partner
Smith Moore
She focuses on complex civil litigation and appeals in the areas of commercial law, products liability and legal... | Read More
She focuses on complex civil litigation and appeals in the areas of commercial law, products liability and legal malpractice defense. She practices extensively in both state and federal courts.
CloseAccess Anytime, Anywhere
Strafford will process CLE credit for one person on each recording. All formats include course handouts.
CLE On-Demand Audio