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
Both in-house and outside counsel have an obligation to preserve documents relevant to a claim or defense that may lead to admissible evidence in the litigation. Counsel must make a reasonable inquiry, identify potentially relevant materials on a company’s systems and preserve those materials both: 1.) through physical sequestration of the discoverable material, including suspension of auto-deletion, backup tape rotation and record destruction policies, and 2.) by implementation of a litigation hold on the key custodians and information management personnel when litigation becomes reasonably anticipated. Few areas of electronically storied information (ESI) collection and production cause as much consternation as the duty to preserve, and with good reason. The failure to properly preserve documents has led to an award of sanctions in more than 230 cases in federal courts. But the key to avoiding problems is to bear in mind that the obligation is one of reasonableness, perfection is not required. Taking reasonable, timely steps to preserve will avoid problems down the line.
Duty to Collect ESI
A lawyer has an obligation to collect ESI (and, where appropriate, its associated metadata) in a sound and defensible manner. The duty ensures that electronic documents are collected properly and without spoliating information. This obligation does not require lawyers to become computer forensic experts, but practitioners should familiarize themselves with the correct procedures and employ forensic experts or professional litigation support personnel to supplement their knowledge if necessary.
Duty to Supervise
Lawyers are responsible for supervising nonlawyers throughout the e-discovery process. At least one court has held that lawyers are obligated “to sufficiently supervise or monitor their employees’ document collection.” Moreover, failure to adequately oversee outsourced or managed services, such as e-discovery service providers or contract review attorneys, could also result in sanctions. This duty is reinforced by the fact that an attorney is the one who signs discovery requests and responses, and that signature represents a certification that the requests, responses or objections are complete, accurate and not interposed for any improper purpose.
Duty During Document Review
Nowhere does a lawyer’s obligation to protect and maintain the confidences, privileged material and work product of a client come more into play than when reviewing ESI. The responsibility here is to review and produce relevant, nonprivileged material. But concomitantly, it means taking steps to avoid the production of privileged or proprietary information. If privileged material is inadvertently produced, Federal Rule of Evidence 502 provides some protection provided the lawyer “took reasonable steps to prevent disclosure” and attempted to timely retrieve the information.
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.”
The Duty of Competence
One ethical obligation we have not mentioned, but that is among the most general and important responsibilities, is the duty of competence. Rule 1.1 of the Model Rules of Professional Conduct explains that a lawyer must provide competent representation to a client, which means a lawyer must have the “legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Recognizing that technology now pervades nearly all facets of legal work, the American Bar Association’s Commission on Ethics 20/20 recently proposed a change to Comment 6 of this rule. The comment states that lawyers should stay apprised of technological changes “including the benefits and risks associated with relevant technology.”
Although this proposal does not alter an attorney’s ethical obligations, it does represent a shift in how the legal community views the effect of technology on the practice of law. The 21st century lawyer must be familiar with new technologies. This is especially true in relation to e-discovery, where lawyers must understand at least the basics about how electronic information is created, stored and retrieved. The failure of an attorney to be technologically competent can have serious consequences for the client, and in extreme cases could lead to sanctions against the lawyer. Attorneys have been held accountable for the actions of vendors, contract attorneys, and legal support personnel. Outside counsel can even be held liable for the actions of in-house counsel. Of course, being competent includes knowing when you need help, and retaining experts in a field when necessary is perfectly appropriate. Bottom line, attorneys need to know enough to ask the right questions, act diligently and seek professional assistance when appropriate.
In this six-article series on e-discovery, we have tried to break the e-discovery process down into its component parts, illuminate it, simplify it and offer practical advice to those involved in it. We also took a few detours to discuss current topics of significance. If no other message resounds from these articles, the one that should is that the 21st century lawyer needs to understand technology in order to effectively represent their clients and their companies.