After having read a few insightful articles (Ralph Losey’s “Ethics and eDiscovery Part I and II;” and Ethics and Electronic Discovery: New Medium, Same Problem” by Zachary Wang) in which the authors discuss eDiscovery and Ethics, I was inspired to jot down my own thoughts on the matter.
Currently, the ABA’s Rules of Professional Conduct require that:
(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.”
But to get a better understanding of the Rule, we should take a closer look at the Comments. More specifically, it states:
 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, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.
eDiscovery is an area of law that has its own language, terminology and procedures. Much like any other area in practice today, it would be difficult for a Criminal Defense attorney to defend a client without knowing and understanding terms like arraignment, indictment, search warrant, double jeopardy and Miranda warnings. Not to mention Federal Rules such as FRE 404 and FRCP 12.
“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”
This may sound harsh, but not properly understanding the meaning of these terms or Federal Rules could cost a defendant their freedom and a lawyer their license. But what about when it comes to eDisvovery? If the same rules apply, one would think that in order to abide by ABA Rule 1.1, an attorney would have to be familiar with terms such as metadata, EDD (electronic data discovery), forensic copy, predictive coding, ESI, analytics, and digital forensics. These are all but basic eDiscovery terminology that every litigator should know by now, but let’s go on a bit further . . .
(Rule 1.6 Confidentiality Of Information) states in part that “(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent” . . . furthermore, “(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.
This rule should not be difficult to abide by when dealing with paper documents. Sure, it may take a lot of work, but the process itself is straightforward (at least in comparison to eDiscovery if you don’t know what you’re doing). Attorneys simply sift through hundreds (or thousands) of documents and boxes relating to the case; the pertaining material is extracted, and the information that opposing counsel has requested is delivered to them in a timely fashion.
But what happens when all those thousands of documents aren’t in boxes; rather, they’re stored (sometimes encrypted) in external hard drives.
How does a lawyer extract the information that she needs from these backups; how do they “sift” through millions and billions of bytes of information stored inside these hard drives. Then, there is the question of: what is metadata? And how will they extract what opposing counsel needs without violating the Rules. What about document history and file revisions stored in these records. According to Harvey L. Kaplan, Electronic Discovery in the 21st Century: Is Help on the Way? “More than 90% of all corporate information is electronic; North American businesses exchange over 2.5 trillion e-mails per year; today, less than 1% of all communication will ever appear in paper form; and, on average, a 1000-person corporation will generate nearly 2 million e-mails annually.” This makes Rule 1.6 all the more frightening to those lawyers not familiar with the eDiscovery process.
But there is more, ABA Rule’s 3.4 (Fairness To Opposing Party And Counsel) states that “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.”
So what happens when an attorney doesn’t even know they are obstructing another party’s access to evidence simply because “they” don’t even know where the evidence lies within the encrypted hard drives. The bottom line is that lawyers are measured by their “reasonable” (I’ll let your favorite jurisdiction decipher what “reasonable” means) conduct when it comes to competency, confidentiality and client representation.
The courts are beginning to look closer at lawyer competency in regards to eDiscovery issues – in part because there needs to be accountability in data preservation, protection and delivery. This seems to put lawyers on notice that eDiscovery is here to stay, and the best way to avoid sanctions (or defeat them) – is to embrace the technology, learn about the process, and rightfully (and ethically) protect clients by being informed of the new procedures in law.
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