Ethical Challenges in Ediscovery
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Transcript of Ethical Challenges in Ediscovery
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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