Essential Reading for E-Discovery Ethical Considerations – Start Here
One important topic in the e-discovery space involves ethical considerations for attorneys. With so many different aspects of e-discovery, and so many players (from managed review vendors to discovery counsel), it can be difficult to get a firm handle on these obligations.
If you want to understand what your ethical obligations are as an attorney, where do you start?
Most law schools do not provide, and most lawyers have not had, any formal training in the ethical rules and foundations of e-discovery practice. In addition, many state and local bars have not issued formal opinions laying out obligations for conducting a competent e-discovery process.
There is a wealth of resources regarding e-discovery, ranging from the well-known Sedona Principles to the Judges Handbook on Technology Assisted Review to a wide variety of court opinions in a variety of jurisdiction which, in various ways, touch on various aspects of the e-discovery. Yet, there is not a comprehensive review of the ethical considerations despite the fact that whether you are new to e-discovery or have advanced knowledge of technology systems and review protocols, it is important to have a strong foundation of the relevant ethical rules.
So–where do you start?
A good place to start is with relevant model ethical rules from the ABA and your state equivalent. For ease of discussion, however, we will generally stick with the Model Rules.
While not specifically drafted for e-discovery, there are a number of Model Rules that bear on an attorney’s responsibilities in e-discovery, and they can be grouped into three separate categories: (1) a lawyer’s duty of competence, (2) duty to safeguard property, and (3) duty to adequately supervise.
Here we go through each.
Duty of competence (Model Rule 1.1)
ABA Model Rule 1.1: As licensed attorneys, we are charged with a number of duties and responsibilities. Among them is the duty of competence. The ABA has placed this duty—that an attorney shall provide representation with “legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation”—at the very beginning of the Model Rules.
In 2012, the ABA amended Rule 1.1 to include Comment 8, which states, in part: “To maintain the requisite knowledge and skill a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”
That is a helpful starting place, but what does it mean?
The California State Bar issued an important opinion interpreting and applying the California Bar’s version of Model Rule 1.1. California Bar Formal Opinion No. 2015-193.
This bar opinion analyzes California’s competence requirement as it applies to e-discovery. The opinion is an excellent primer on how to assess your e-discovery knowledge for any particular matter.
The opinion notes nine separate areas that “attorneys handling e-discovery should be able to perform (either by themselves or in association with competent co-counsel or expert consultants).”
1. Initially assess e-discovery needs and issues, if any;
2. Implement/cause to implement appropriate ESI preservation procedures;
3. Analyze and understand a client’s ESI systems and storage;
4. Advise the client on available options for collection and preservation of ESI;
5. Identify custodians of potentially relevant ESI;
6. Engage in competent and meaningful meet and confer with opposing counsel concerning an e-discovery plan;
7. Perform data searches;
8. Collect responsive ESI in a manner that preserves the integrity of that ESI; and
9. Produce responsive non-privileged ESI in a recognized and appropriate manner.
Op. at 4.
The bar opinion is clear that counsel without the requisite competence in these areas should seek assistance:
“Competency may require even a highly experienced attorney to seek assistance in some litigation matters involving ESI. An attorney lacking the required competence for e-discovery issues has three options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation.
Those who lack competence but proceed anyway run a serious risk: “Lack of competence in e-discovery issues also may lead to an ethical violation of an attorney’s duty of confidentiality.”
Safeguarding property (Model Rules 1.6, 1.15)
The Model Rules also impose a duty on an attorney to take reasonable precaution to ensure that a client’s property, which includes confidential information or other ESI, is safeguarded from unauthorized disclosure.
Specifically, Model Rule 1.6 states that a “lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of the client.” Similarly, Model Rule 1.15 requires the safeguarding of property. Model Rule 1.15(a) (“Other property shall be identified as such and appropriately safeguarded.”)
Supervisory responsibilities (Model Rules 5.1, 5.3)
In e-discovery and handling electronically stored information (“ESI”), typically a large and varied team is used—from attorneys to technology vendors to outsourced review teams.
The Model rules impose a responsibility on the supervising attorneys to ensure that the entire team complies with the ethical rules.
Under Model Rule 5.1, that duty applies to lawyers on the legal team. See Model Rule 5.1(a) (“A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct”).
Under Model Rule 5.3, that duty extends to the supervisions of non-lawyers. See Model Rule 5.3(b) (“[A] lawyer having direct supervisory authority over the non-lawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer”).
The e-discovery process can be very complicated and, under the applicable ethical rules, fraught with risk for in-house and outside counsel. All attorneys should become familiar with the specific requirements of the rules in the jurisdiction where they practice. And, if they don’t have the requisite skills required, either learn them or reach out for help. This is a situation where ignorance is not bliss.