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E-discovery: Lawyers have specific duties with regard to e-discovery

Understand ethical implications and what every general counsel needs to know

What are an attorney’s ethical obligations in e-discovery? Is a written litigation hold or a preservation letter to a client really required? What does certifying discovery requests and responses actually mean? An attorney’s ethical duties, which can take the form of rules or develop as common law, vary by jurisdiction and are still incomplete in an evolving field like e-discovery. Nevertheless, in our previous articles, we have mentioned various duties that lawyers have in the context of e-discovery, which double as ethical requirements.

Duty to Preserve ESI

The First Rule

Often overlooked is the first in the Federal Rules of Civil Procedure, which says that the rules “should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.” This rule, in conjunction with Rule 26(b)(2)(B), reinforces the view that proportionality and cost are of critical importance in the collection and production of ESI. Courts have the ability to limit discovery when “the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.”

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James Bernard

James L. Bernard is a Partner in the Litigation Practice Group at Stroock & Stroock & Lavan LLP. His practice covers a range of complex...

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Michael Quartararo

Michael Quartararo is the Director of Litigation Support Services at Stroock & Stroock & Lavan LLP, an adjunct instructor at Bryan University's E-Discovery Program, and...

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Jason Vinokur

Jason S. Vinokur is an associate in Stroock's Litigation Practice Group.

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