Traditional ethical rules governing preservation of evidence have spawned many new challenges for companies and their counsel in this digital age. The task of identifying and preserving diverse and voluminous data in anticipation of litigation requires much more than just good intentions. The multiple sources and vast universe of potentially relevant electronically stored information (ESI) provide myriad opportunities to err. Lawyers must expend extra care and effort to fulfill legal and ethical duties surrounding the preservation of evidence.
E-discovery sanctions have reached an all-time high and lawyers are often the targets. Failure to preserve electronic evidence is the most common reason for sanctions awards. The following is a practical guide to ensure ethical preservation. It is important to remember that perfection in preservation is often unattainable, but with careful attention to and documentation of the following steps, attorneys can maximize compliance and minimize sanction risks.
Counsel also should be aware of the potential for “metadata mining” by litigation adversaries. Ethical opinions on this issue run the full spectrum from prohibiting data mining entirely to allowing full access and use of this information. Based on the confusing and conflicting opinions on metadata mining, lawyers producing or receiving ESI should familiarize themselves with the rules governing these issues wherever they are practicing.
4. Manage the process and the client. Model Rule 1.2 requires lawyers to abide by client decisions during representation. But that duty is subordinate to a lawyer’s ethical obligations, including the obligation to preserve and produce relevant evidence. Counsel should not simply defer to a client’s IT or records personnel to handle preservation. Rather, both inside and outside counsel should ensure that the client takes, and documents, adequate and proper steps. Due diligence may require not simply taking at face value everything that a client representative may say about the location of relevant evidence and its being preserved or collected. ESI issues can be complicated; typically no one individual has first hand knowledge of all of the relevant facts, and many lawyers have been burned by accepting what they hear from a client representative or IT person who may not have performed a full and adequate investigation, or may be mistaken about some of the relevant facts