Ethics of E-Discovery
Defensible Document Review
September 25, 2013
Jennifer Freeman
Ethics & Electronic Evidence
• Ethical obligations do exist
when it comes to e-discovery
• Courts are more clearly
articulating counsel’s
affirmative duty to act
competently and diligently
• Counsel should expect to be
held to a higher standard
than ever before
Ethics & Electronic Evidence
Pension Committee: Low tolerance for unethical behavior
•
13 plaintiffs failed to issue timely written litigation holds
•
Adverse inference and monetary sanctions against the plaintiffs for conducting discovery in “an
ignorant and indifferent fashion”
See Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 2010 WL
184312 (S.D.N.Y. Jan. 15, 2010)
Commentary on Ethics & E-Discovery
•
Judge David Waxse on Cooperation and Lawyers Who Act Like Spoiled Children, available at
http://e-discoveryteam.com/
•
Ethics of Electronic Discovery, a two part essay available at http://ediscoveryteam.com/2012/03/04/ethics-of-electronic-discovery-part-one/
•
Lawyers Behaving Badly, 60 Mercer L. Rev. 983 (Spring 2009)
•
Mancia v. Mayflower Begins a Pilgrimage to the New World of Cooperation, 10 Sedona Conf. J.
377 (2009 Supp.)
See Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 2010 WL
184312 (S.D.N.Y. Jan. 15, 2010)
Discussion Overview
• The Rules in Relation to E-Discovery
• Emerging Technologies
• Basic Workflows
• Internal Thresholds
• Parting Thoughts
The Rules In Relation to
E-Discovery
The Rules
Model Rules of Professional Conduct
Rule
1.1
Rule
1.3
Rule
1.6
Rule
3.2
Rule
3.3
Rule
3.4
Rule 1.1: Competence
A lawyer shall provide competent
representation to a client.
Competent representation
requires the legal knowledge,
skill, thoroughness and
preparation reasonably
necessary for the representation.
Duty of Competence
• Keeping abreast of current practice requirements includes “the
benefits and risks associated with relevant technology.”
• Competence in locating, reviewing and producing ESI in litigation
and regulatory work is among the greatest challenges for lawyers
today
• Counsel’s ability to examine and produce ESI is central to managing
discovery in the modern age
Duty of Competence: Legal Knowledge & Skill
When to hire a consultant:
 Any time training and experience of your staff would
make you uncomfortable if you had to call them as
witnesses
 Any time conflicts of interest might really hurt your case
 Any time the current workload of your staff would
prevent them from focusing on your case
 Any time your staff lacks the tools and equipment to
handle the job
Duty of Competence: E-Discovery
Knowledge is an Obligation
• Court found plaintiffs’ counsel “did
not understand the technical depths
to which electronic discovery can
sometimes go”
•
Counsel has an obligation to
search for sources of information to
understand where data is stored
• Issued monetary sanctions due to
counsel’s failure to speak with key
figures at the company
-
In re A & M Florida Props. II, 2010
WL 1418861 (Bkrtcy.S.D.N.Y. Apr.
7, 2010).
Rules 1.3 & 3.2: Diligence &
Expediting Litigation
Rule 1.3
A lawyer shall act with
reasonable diligence and
promptness in representing a
client
Rule 3.2
A lawyer shall make reasonable
efforts to expedite litigation
consistent with the efforts of the
client
Diligence & Expediting Litigation
• Diligence is impossible unless you adhere to the duty of providing
competent representation of your client
• “Vigorous advocacy”
 Thorough understanding and analysis of facts, law and data set
 Not simply knee-jerk opposition to everything the other side
proposes
• Unnecessary motions and efforts to stonewall discovery violate both
duties
Rule 1.6: Confidentiality
A lawyer must act competently
to safeguard information
relating to the representation
of a client against inadvertent
or unauthorized disclosure
by the lawyer…
- Comment 16, ABA Model
Rule 1.6 Confidentiality of
Information
Duty of Confidentiality: Privilege Issues
• Protecting privilege in the era of electronic discovery is growing
increasingly difficult given the volume of data
• Counsel should consider entering into a protective order, clawback
agreement or quick peek agreement
• Counsel should also familiarize themselves with Fed.R.Evid. 502
• Comment 6: Specifically points to changes in technology and how
those affect confidentiality
Duty of Confidentiality: Attorney Beware
• Court found privilege was waived
regarding e-mails sent via company
e-mail addresses using company
computers
• Attorney should have been aware
client’s employer would be
monitoring and accessing e-mail
sent to that address since it is now a
common practice
-
Alamar Ranch, LLC v. County
of Boise, 2009 WL 3669741(D.
Idaho. Nov. 2, 2009).
Rule 3.3: Candor Toward The Tribunal
(a) A lawyer shall not
knowingly:
(1) make a false statement
of fact or law…
***
(3) offer evidence lawyer
knows to be false
Duty of Candor: Dishonesty Will Cost You
• “Distorted representations” of
discovery production and accuracy
contradicted defendants’ duty of
candor to the court
• Court ordered defendants to pay
$1,000 in sanctions for discovery
misconduct
-
Baez-Eliza v. Instituto
Psicoterapeutico de Puerto
Rico, 2011 WL 2413051 (D.
Puerto Rico June 16, 2011).
Rule 3.4: Fairness
Unobstructed Process and Access to Evidence
A lawyer shall not:
(a) unlawfully obstruct another
party’s access to evidence or
unlawfully alter, destroy or
conceal a document or other
material having potential
evidentiary value. A lawyer shall
not counsel or assist another
person to do any such act…
Rule 3.4: Fairness
Non-Frivolous Litigation Tactics
A lawyer shall not:
(d) in pretrial procedure, make
a frivolous discovery
request or fail to make
reasonably diligent efforts to
comply with a legally proper
discovery request by an
opposing party….
Courts Require Good Faith Efforts
• Plaintiff failed to abide by local rule
requiring attorneys to meet and
confer in good faith before filing
motion to compel
• Court warned the parties to “act less
like armed combatants and more
like highly skilled professionals”
going forward
-
B & B Hardware, Inc. v.
Fastenal Co., 2011 WL
2115546 (E.D. Ark. May 25,
2011).
Courts are Losing Patience for
Lack of Cooperation
• Attorneys “embarked upon a course
entailing a conscious effort to
maximize litigation and to make
certain [it] was as time-consuming,
difficult, unpleasant, and expensive
as possible”
•
-
Two attorneys were held personally
liable in the amount of $3,750
each, to be paid without
reimbursement from the law firms
or clients.
Alford v. Rents, 2010 WL 4222922 (S.D.
Ill. Oct. 20, 2010).
Emerging
Technologies
Emerging Technologies
• Strategic Searching
• Conceptual Searching and Clustering
• Early Data Analysis
• Advanced Analytics
• Predictive Coding
High-Level
Workflows
Electronic Discovery Reference Model
PROCESSING
PRESERVATION
INFORMATION
MANAGEMENT
IDENTIFICATION
REVIEW
PRODUCTION
PRESENTATION
COLLECTION
ANALYSIS
VOLUME
Based on Electronic Discovery Reference Model (EDRM), www.edrm.net, used with permission
RELEVANCE
Early Workflows
Collect Broadly
Targeted Collection
Review Everything
Review Everything
Reducing universe of potentially producible data during
IDENTIFICATION or COLLECTION phases
Evolving Workflows
Collect Broadly
Search Terms
Collect
Search Terms
Identify
Sample
Collect
SBVR
Priv Terms
Terms
ID With Strategic Search
Review Everything
Produce w/ Clawback
Negotiate
Collect
ECA Analytics
Review
Review Everything
Review Remainder
Reducing universe of potentially producible data during
PROCESSING or ANALYSIS phases
Advanced Workflows
Collect
Exclude
Collect
Preview
Validate
Code Ref Set
Review Remainder
Random Sample
Assess PR Targets
Sample
Noise Filter
Train Classifier
Finish Classifier
Apply Coding
Validate
Reducing universe of potentially producible data during
ANALYSIS and REVIEW phases
Electronic Discovery Reference Model
PROCESSING
PRESERVATION
INFORMATION
MANAGEMENT
IDENTIFICATION
REVIEW
PRODUCTION
PRESENTATION
COLLECTION
ANALYSIS
VOLUME
Based on Electronic Discovery Reference Model (EDRM), www.edrm.net, used with permission
RELEVANCE
Defensibility
The best technology in the world
cannot compensate for lack of
expertise and sound process.
Internal Thresholds
What Can We Handle?
• Enterprise Software
• Internal Expertise
• Internal Process Development
• Outside Counsel
• Vendors and Consultants
LITIGATION PROFILE | RISK TOLERANCE | COMPLIANCE OBLIGATIONS
Parting Thoughts
Parting Thoughts
Cooperation is paramount - Zealous Advocacy does not amount to a
“fight everything” mentality
 Judge Waxse: Lawyers as “spoiled children” in constant need of adult
supervision through a judge.
 Solution: Enforce cooperative behaviors through MRPC
See David J. Waxse, Cooperation—What is it and Why do it?, XVIII Rich. J.L. & Tech. 8
(2012);
Uncooperative behavior is per se unethical
 Cooperation and principles of fair play at the foundation of our
professional duties as lawyers
 Inability to cooperate is one of the primary causes of rising e-discovery
costs
See The Sedona Conference, Cooperation Proclamation, 10 Sedona Conf. J. 331 (2009
Supp.)
Q&A