IST Discover-E White Paper:

Navigating Ethics in eDiscovery

What are an attorney’s ethical duties in the handling of discovery of electronically stored information?

 

Notes On The State Bar Of California Standing Committee On Professional Responsibility And Conduct Formal Opinion No. 2015-193

 

Not every litigated case involves eDiscovery.  Yet, in today’s technological world, almost every litigation matter potentially does.  The chances are significant that a party or a witness uses email or other electronic communication, stores information digitally, and/or has other forms of ESI related to the dispute.

 

Legal rules and procedures, when placed alongside ever-changing technology, produce professional challenges that attorneys must meet to remain competent.  As it relates to eDiscovery, the ethical duty of competence requires an attorney to assess at the outset of each case what eDiscovery issues might arise during the litigation, including the likelihood that e-discovery will or should be sought by either side.  If eDiscovery will probably be sought, the duty of competence requires an attorney to assess his or her own eDiscovery skills and resources as part of the attorney’s duty to provide the client with competent representation.

 

 

 

If an attorney determines there is a lack of such skills and/or resources, the attorney, in keeping with the ethical duty of competence, may:

  1. Decline the representation
  2. Associate competent counsel
  3. Consult with a third-party vendor expert
  4. Acquire sufficient learning and skill before performance is required

 

 

 

Where an attorney’s acquisition of sufficient learning and skill may be practically ridiculous given time constraints under the Federal Rules of Civil Procedure (FRCP); and, turning down the case or fee-splitting with associated counsel distresses a firm’s bottom line, the most obvious and cost-effective choice is to bring in a third-party vendor expert in order to perform the following:

 

  • Initially assess eDiscovery needs and issues in the matter
  • Implement appropriate Electronically Stored Information (ESI) preservation procedures
  • Analyze and understand a client’s ESI systems and storage
  • Advise the client on available options for collection and preservation of ESI
  • Identify custodians of potentially relevant ESI
  • Engage in competent and meaningful meet and confer with opposing counsel concerning an eDiscovery plan
  • Perform data searches
  • Collect responsive ESI in a manner that preserves the integrity of that ESI; and
  • Produce responsive non-privileged ESI in a recognized and appropriate manner

 

 

 

It is important to note, however, that the duty of competence includes the duty for attorneys to supervise the work of subordinate attorneys and non-attorney employees or agents.  This duty to supervise can extend to outside vendors or contractors, and even to the client itself.  This is a non-delegable duty belonging to the attorney who is counsel in the litigation, and who remains the one who must answer to the court.

 

An attorney must maintain overall responsibility for the work of the expert he or she chooses by remaining regularly engaged in the expert’s work, and also by educating everyone involved in the eDiscovery workup about the legal issues in the case, the factual matters impacting discovery, including witnesses and key evidentiary issues, the obligations around discovery imposed by the law or by the court, and of any relevant risks associated with the eDiscovery tasks at hand.

 

IST Discover-E understands that every matter is unique, which is why we offer and develop a wide range of eDiscovery solutions fulfilling both your and your client’s requirements in all 50 states.  The best part about partnering with IST is our customer-centric approach to all services provided.  From Early Case Assessment (ECA) through production, we are with you every step of the way and our consultative expertise will provide you with the tools you need to handle eDiscovery matters competently and confidently.

 

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