Many important topics have been addressed within the legal industry this year however the ethical responsibilities and competence of counsel when handling eDiscovery continues to be a prevalent discussion.
When discussing the ethical responsibilities of lawyers, the conversations tend to focus on a few key ABA Model Rules of Professional Conduct, as well as individual state rules. For those in California, Formal Opinion 2015-193 released by the State Bar of California Standing Committee on Professional Responsibility and Conduct has also become a hot topic because it is one of the first opinions to define eDiscovery obligations in greater detail, holding attorneys to much higher standards.
It is common for non-attorney personnel, such as legal secretaries, legal assistants, paralegals, litigation support staff, and IT professionals, to play a major role in the eDiscovery process. Therefore, it is important to ensure they are held to the same standards as attorneys for the decisions they make.
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With the exception of those who belong to a national organization that governs their profession, there are few professional rules of conduct in regards to eDiscovery that specifically apply to these non-attorney roles.
However, if one were to look closely at some of the ABA Rules of Professional Conduct created to guide attorney behavior, they will see that there are clear responsibilities for both attorney and non-attorney team members.
ABA Model Rules of Conduct for eDiscovery
Responsibilities of a Partner or Supervisory (ABA 5.1)
“…a lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct…”
Supervising attorneys are ultimately responsible for the actions and decisions of all attorneys on a case team, especially for those involved in the eDiscovery process. If eDiscovery protocols and processes are challenged, one bad decision can have far reaching consequences for everyone, especially for those whose name is on a motion or affidavit.
Responsibilities Regarding Non-Lawyer (ABA 5.3)
With respect to a non-lawyer employed or retained by or associated with a lawyer:
“…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…”
Supervising attorneys are ultimately responsible for the actions and decisions of all non-attorney personnel – legal secretaries, legal assistants, paralegals, litigation support professionals, IT personnel, outside consultants, outside vendors, etc. – especially for those involved in the eDiscovery process. One bad decision can have far reaching consequences for everyone.
Competence (ABA 1.1)
“…[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…”
Understanding the benefits and risks of relevant technology doesn’t only refer to litigation review platforms that a legal team implements for discovery and document review, but also refers to the technology that a law firm client uses in their own environment. Understanding a client’s email and network infrastructure is instrumental in determining the proper identification, preservation and collection protocols to follow. If that is overlooked, then the rest of the eDiscovery process is fundamentally flawed.
Fees (ABA 1.5)
“…a lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses…”
With the volume of data growing significantly every year, parties have an obligation to follow eDiscovery process best practices and properly handle ESI in order to avoid unnecessary costs. To help clients control costs, legal teams should be involved in the early stages of the eDiscovery process; i.e. legal hold, preservation and collection. In addition, early data analysis workflows should always be implemented so that non-relevant data is removed before processing and review costs are incurred. Law firm clients are no longer accepting outdated discovery and review workflows and are holding outside counsel accountable for the decisions they make.
Confidentiality of Information (ABA 1.6)
“…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…”
Data security is an extremely important topic that has evolved to include law firms and the measures they have taken to protect their clients’ data. Law firms and legal teams must implement and enforce secure data storage, data transfer and data disposition protocols. Otherwise, they risk having protocols questioned, or even being held liable for data breaches. Case teams cannot be allowed to bypass internal IT systems when handling client ESI, especially when it comes to using third party cloud-based data transfer applications (i.e. Biscom, DropBox).
Respect for Rights of Third Persons (ABA 4.4)
“…A lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender…”
Inadvertently produced information, claw-backs and privilege logs are hot topics in the eDiscovery industry.Parties should always consider implementing 502(d) orders under Federal Rule of Evidence 502. FRE 502(d) orders require the return of privileged documents produced during discovery without parties fearing that the disclosure waives attorney-client or work product protection. Rule 502 is aimed at relieving some of the burden of privilege document review and allows all parties to work from a consistent framework that will help reduce review costs and overall risk to parties.
Fairness to Opposing Party and Counsel (ABA 3.4)
A lawyer shall not:
“…unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value…”
“…knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists…”
Identification, preservation and collection are the areas in the eDiscovery process where attorneys have the largest risk of judicial sanctions. By failing to properly identify, preserve and collect client ESI, legal teams run the risk of obstructing another party’s access to evidence through spoliation. Anything that alters ESI from its original form – reviewing client .pst email files directly in Outlook, forwarding emails from a client’s email account to a law firm email account, printing native emails to PDF files or paper – opens the door to eDiscovery protocol challenges by opposing parties. Especially if the parties are savvy and know what to look for. You cannot turn a blind eye to the eDiscovery process, especially on federal matters where the FRCP rules are in place.
The State Bar of California Formal Opinion
The State Bar of California Standing Committee on Professional Responsibility and Conduct Formal Opinion 2015-193
“…attorney competence related to litigation generally requires, among other things, and at a minimum, a basic understanding of, and facility with, issues relating to eDiscovery, including the discovery of electronically stored information (“ESI”)…”
“…an attorney lacking the required competence for eDiscovery issues has three options:
- Acquire sufficient learning and skill before performance is required
- Associate with or consult technical consultants or competent counsel
- Decline the client representation- lack of competence in eDiscovery issues also may lead to an ethical violation of an attorney’s duty of confidentiality…”
“…attorneys who handle litigation may not ignore the requirements and obligations of electronic discovery…”
Responsibilities for the eDiscovery Process
ESI is changing the way attorneys practice law, however, it is also changing the way non-attorney professionals support legal counsel and their clients. In the end, each person on a case team – attorney or non-attorney – plays an important part in the eDiscovery process and Rules of Professional Conduct apply to everyone.
Here is a list of 10 responsibilities that anyone on a case team should keep in mind when conducting eDiscovery to ensure a smooth, defensible process:
- Oversee, be involved in and/or document the legal hold process
- Oversee, be involved in and/or document the custodian interview process
- Oversee, be involved in and/or properly identify, preserve and collect client ESI
- Regularly evaluate eDiscovery costs and burden- consider inaccessibility and proportionality of ESI
- Collaborate with all parties – negotiate and establish proper ESI and production protocols
- Manage confidentiality and risk with protective orders and claw-back agreements
- Strategically analyze, filter and select substantive/relevant ESI for review
- Strategically review and/or produce documents for relevancy, responsiveness and privilege
- Strategically assess, review and analyze opposing party productions
- Know the benefits and risks of relevant technology – not just your own but for any technology your clients may be using as well
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