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
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.”