Avoiding Sanctions & Surprises
The ethics of discovery
Kat Meyer, Esq.
President of Conquest
eDiscovery, LLC
What am I supposed to be doing?
What am I supposed to be doing?
How do I do it?
What am I supposed to be doing?
How do I do it?
Why is it important?
 Be Competent
“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…”
“[t]o 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.”
“Comment 6 already encompasses an obligation to
remain aware of technology that affects law practice,
but the Commission concluded that making this
explicit…would offer greater clarity.”
Know the basics of how technology is affecting the legal field
Know the basics of how technology is affecting the legal field
 KNOW the rules related to e-discovery
Know the basics of how technology is affecting the legal field
 KNOW the rules related to e-discovery
 KNOW about your client
Data Maps (Good Luck)
Custodian Interviews
IT Interviews
“There is no more obvious and critical source of
information in the 21st century than a company’s
email accounts. Plaintiff’s counsel’s failure to
identify and produce this discovery in a timely
fashion and in an acceptable form and manner
while suggesting –if not misleading the
defendants—that it had identified responsive
documents is sanctionable…”
Know the basics of how technology is affecting the legal field
 KNOW the rules related to e-discovery
 KNOW about your client
 KNOW what you don’t know & Get help
“MS & Co. gave no thought to using an outside contractor to expedite
the process of completing the discovery, though it had certified
completion months earlier; it lacked the technological capacity to
upload and search the data at that time; and would not attain that
capacity for months…”
Coleman Holdings, Inc. v. Morgan Stanley
If you use a vendor, pick the right one
If you use a vendor, pick the right one
 What experience does the vendor have?
 Have they voluntarily agreed to the EDRM ethical rules for
vendors
 What are their quality control processes
 How is their security & infrastructure set up?
 Be Competent
 Certify Responsibly
FRCP 26(g):
The attorney must sign all disclosures certifying the
disclosures are complete and correct at the time they
are made “to the best of the person’s knowledge,
information, and belief formed after reasonable
inquiry.”
“While, of course, it is true that counsel need not supervise
every step of the document production process….the rule
expressly requires counsel’s responses to be made upon
reasonable inquiry under the circumstances. Here, there is no
doubt whatsoever that counsel failed to comply with that
standard…”
Metropolitan Opera v. Local 100
“…defendants took a backseat approach and
instead let the process proceed through a
vendor….[s]uch a hands-off approach is
insufficient…Defendant’s cannot place the
burden of compliance on an outside vendor
and have no knowledge, or claim no
control, over the process.”
Peerless Industries, Inc. v. Crimson Av,
LLC
 Be Competent
 Certify Responsibly
 Be Diligent
 MRPC 3.4: a lawyer shall not unlawfully
alter, destroy, or conceal a document or
other material having potential evidentiary
value.” 3.4(a)
 MRPC 3.4: a lawyer shall not unlawfully
alter, destroy, or conceal a document or
other material having potential evidentiary
value.” 3.4(a)
 A lawyer shall not “…fail to make
reasonably diligent effort to comply with a
legally proper discovery request by an
opposing party.” 3.4(d)




Be Competent
Certify Responsibly
Be Diligent
Supervise & avoid unauthorized practice of
law
MRPC 5.3: there is an ethical duty on
counsel to supervise non-attorneys retained
in the course of litigation
DC Bar Opinion 21-12: To avoid the
unauthorized practice of law, service
providers are limited to administrative,
technical, and logistical tasks
Be involved
 Know what the vendor is doing
Be involved
 Know what the vendor is doing
 Supervise and QC Review
Review QC
 Not Relevant Sample Set
 Relevant Sample Set
 Sample Privilege Terms in relevant set
Be involved
 Know what the vendor is doing
 Supervise and QC Review
 QC productions
Production QC
 Correct number of documents?
 Branding correct?
Redactions present?
Redacted text removed from text file?
The Gist:
1. Know your ethical responsibilities
2. If you aren’t competent when it comes to technology, find
someone who is
3. Make sure you understand the process before you tell the
court it is complete
4. Supervise, Supervise, Supervise
5. You can’t abdicate your ethical responsibilities!
Avoiding Sanctions & Surprises
The ethics of discovery
Kat Meyer, Esq.
President of Conquest
eDiscovery, LLC