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.
1. Know your e-discovery, or call in lawyers who do. E-discovery is still a new area of law for most lawyers, involving technology outside of their usual skill set and training. Nevertheless, attorneys have an obligation to educate their clients, and themselves, when providing counseling and supervision during data identification and preservation. In addition, Federal Rule of Civil Procedure 26(f) requires lawyers to understand, and discuss competently, their clients’ electronic systems, data storage, accessibility and steps taken during preservation. This obligation requires attorney competence in e-discovery generally, and specifically with regard to the ESI potentially relevant to a particular matter. Outsourcing these obligations to vendors or inexperienced junior attorneys without close supervision is not an option under the ethical rules.
2. Guard against the destruction of potentially relevant data. The duty of fairness prohibits an attorney from concealing or destroying evidence. ABA Model Rule 3.4 requires fair access to evidence without alteration, obstruction or evasive tactics. In e-discovery terms, this means the defensible and systematic identification, preservation and production of potentially relevant non-privileged ESI. Attorneys must investigate and counsel clients on the search and preservation process. They should carefully document investigation and preservation, and retain that documentation, to prove the thoroughness and reasonableness of the process. Beware of any preservation that may alter the ESI (including potentially relevant metadata) or is haphazard in implementation.
3. Disclose relevant non-privileged information, without producing privileged material. With the voluminous amounts of ESI often involved in litigation today, and the imperfections of human review, it is almost impossible to conduct perfect screening for relevance and privilege. However, proper training of reviewers, project management, quality control and use of the latest e-discovery technology can greatly reduce the incidence and risk of errors. Just in case, it is generally a good idea to agree to a privilege non-waiver order, subject to the protections of F.R.E. 502.
Metadata, the “hidden” information that accompanies ESI, can pose additional challenges. Like other data, it may contain responsive, confidential and/or privileged material, but unlike other data, it can be harder to see and review. Production of metadata without proper privilege screening could result in irreversible disclosure of privileged information. (In Amersham Biosciences Corp. v. PerkinElmer, Inc., for example, the plainff did not take “sufficiently reasonable precautions” to avoid inadvertent disclosure of privileged documents).
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
5. Cooperate with your adversaries to address e-discovery issues. The 2006 amendments to the Federal Rules of Civil Procedure require parties and their lawyers to be proactive and forthcoming about e-discovery. Courts increasingly expect and demand cooperation with opposing counsel on e-discovery issues. This represents a major shift for experienced litigators who may have learned that zealous representation requires a more adversarial approach that minimizes free disclosures. Experienced litigators are learning, however, that cooperation and reasonableness usually benefit their own clients in the long run. Cooperation fosters trust and efficiencies that can greatly reduce costs for all concerned, while failure to cooperate can lead to nightmarish results. (In Pippins v. KPMG, for example, the court upheld denial of motion to limit preservation due to a perceived lack of cooperation in the discovery process.
In summary, attorneys should approach all discovery preservation matters in a proactive, energetic, cooperative and practical manner. Counsel must actively address preservation with their clients and should discuss issues of scope, cost, metadata, production formats and related issues openly with clients, opposing counsel and courts. To butcher an old adage, this is truly an area in which a few ounces of preservation can save many pounds of sanctions.