Legal Ethics in Ediscovery
The proliferation of electronic evidence has spawned new ethical issues for attorneys. While formal responsibilities specific to ediscovery have yet to be formulated, courts are increasingly affirming a duty of counsel to act competently and fairly when electronic information is involved in a case. Thus, to avoid judicial sanctions, ethical violations and malpractice claims, attorneys must understand the phases of ediscovery and how they correspond to the Model Rules of Professional Conduct.
Counsel must provide competent representation to a client, including the "legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."[i] A relatively new challenge for many lawyers is the responsibility to locate, review and produce ESI in litigation and regulatory work. Whether dealing with e-mail, databases, network share data or other loose electronic files, counsel's ability to examine and produce this information is central to managing discovery. Competent knowledge and skill means counsel must acknowledge their own and their clients' technical skills and limits and know when to hire a consultant, or else risk court intervention.
Counsel must act to "safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure,"[ii] and "a lawyer who . . . knows or reasonably should know that [a privileged or protected] document was inadvertently sent shall promptly notify the sender."[iii] The duty of confidentiality has long been intertwined with the issues of attorney-client privilege and work product doctrine, but given the now-constant expansion of the volume of electronic data, protecting privilege during discovery is increasingly difficult. Protective orders, clawback agreements or quick peek agreements can be helpful to prevent and repair inadvertent productions. However, these tools can never substitute for proper and document review methods and quality control sampling, along with a well-documented, thorough process.
Candor Toward the Tribunal
Model Rule 3.3 prohibits a lawyer from knowingly making "a false statement of fact or law" or offering "evidence the lawyer knows to be false," and this duty of candor naturally extends to ediscovery. In Magaña v. Hyundai Motor America, for example, the court found that a defendant – a "sophisticated multinational corporation experienced in litigation" – improperly limited its discovery search, made false, misleading and evasive responses and willfully violated discovery rules, warranting an $8 million default judgment sanction.[iv]
A lawyer's ethical duties relating to ESI also extend to reasonable efforts to locate and produce relevant documents during discovery. Under the Model Rules, it is unethical for a lawyer to "unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value."[v] In ediscovery, this means a duty to preserve evidence, which arises when the party anticipates litigation.[vi] In an organization, preservation of relevant documents requires suspension of routine document retention policies and issuance of a legal hold.[vii]
Fairness further requires a "coordinated effort to promote cooperation by all parties to the discovery process to achieve the goal of a 'just, speedy, and inexpensive determination of every action,'" and courts routinely require efficiency, expertise and amicability in the process. Echoing the sentiments of many, one court stated it "has neither the time nor the resources to resolve every discovery agreement" and urged the parties to act reasonably and in good faith, and to work through their "disagreements amicably."[viii]
Moreover, the Model Rules require lawyers to maintain the integrity of the profession. It is unethical to violate "the Rules of Professional Conduct, engage in conduct involving dishonesty, fraud, deceit or misrepresentation," or "knowingly fail to comply with a final court order."[ix] In Aliki Foods, LLC v. Otter Valley Foods, Inc., the court found that a party's "flagrant defiance" of court orders and discovery obligations resulted in "tremendous waste of resources – and largely for naught," leaving no "alternative to dismissal."[x] Among other conduct the court found to be "willful and in bad faith," the party alleged that a critical hard drive "failed" (suspiciously coinciding with the court's order to produce it) and later signed over the hard drive to a non-party after the court had ordered it to be forensically imaged, without ever attempting to comply.
The bond between ediscovery and ethics is arguably strengthening with each case issued, while advances in technology continue to add to the already gray area in many legal ethics rules. For instance, social networking sites and blogs – rife for indiscretion – may easily lead to disciplinary action for misconduct or raise serious confidentiality, integrity and propriety issues. Cloud computing, another recent trend raises ethical questions pertaining to competence and confidentiality. Information stored in the cloud is beyond the lawyer's control because it is literally in numerous locations, even countries, which lie in outside jurisdictions with disparate laws. Lawyers must undertake efforts to ensure all client data stored in the cloud is secure and remains confidential. Developing a stronger understanding of ediscovery and its interplay with ethical obligations will help lawyers ensure they are upholding the important oath integral to this grand profession.
[i] ABA Model Rule of Professional Conduct (MRPC) 1.1 Competence.
[ii] Comment 16, ABA MRPC 1.6 Confidentiality of Information.
[iii] ABA MRPC 4.4 Respect for Rights of Third Persons.
[iv] 220 P.3d 191 (Wash. 2009).
[v] ABA MRPC 3.4 Fairness
[vi] 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).
[vii] Treppel v. Biovail Corp., 2008 WL 866594 (S.D.N.Y. Apr. 2, 2008 ) (quoting Zubulake v. UBS Warburg LLC ("Zubulake IV"), 220 F.R. D. 212 (S.D.N.Y. 2003)).
[viii] Camesi v. Univ. of Pittsburgh Med. Ctr., 2010 WL 2104639 (W.D. Pa. May 24, 2010); see also Doppes v. Bentley Motors, Inc., 94 Cal. Rptr. 3d 802 (Cal. App. 4 Dist. 2009) (court held the defendant had stonewalled in producing highly relevant documents resulting in severe prejudice to the plaintiff, and the defendant's repeated and egregious violations of discovery laws threatened the integrity of the judicial process).
[ix] ABA MRPC 8.4 Maintaining The Integrity Of The Profession
[x] 2010 WL 2982989 (D. Conn. July 7, 2010).