September 25, 2013

Ethics of E-DiscoveryDefensible Document Review

Jennifer Freeman

• Ethical obligations do exist when it comes to e-discovery

• Courts are more clearly articulating counsel’s affirmative duty to act competently and diligently

• Counsel should expect to be held to a higher standard than ever before

Ethics & Electronic Evidence

Pension Committee: Low tolerance for unethical behavior• 13 plaintiffs failed to issue timely written litigation holds

• Adverse inference and monetary sanctions against the plaintiffs for conducting discovery in “an ignorant and indifferent fashion”

See 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)

Commentary on Ethics & E-Discovery• Judge David Waxse on Cooperation and Lawyers Who Act Like Spoiled Children, available at

http://e-discoveryteam.com/

• Ethics of Electronic Discovery, a two part essay available at http://e-discoveryteam.com/2012/03/04/ethics-of-electronic-discovery-part-one/

• Lawyers Behaving Badly, 60 Mercer L. Rev. 983 (Spring 2009)

• Mancia v. Mayflower Begins a Pilgrimage to the New World of Cooperation, 10 Sedona Conf. J. 377 (2009 Supp.)

See 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)

Ethics & Electronic Evidence

• The Rules in Relation to E-Discovery

• Emerging Technologies

• Basic Workflows

• Internal Thresholds

• Parting Thoughts

Discussion Overview

The Rules In Relation toE-Discovery

The Rules

Rule 1.1

Rule 1.3

Rule 1.6

Rule 3.2

Rule 3.3

Rule 3.4

Model Rules of Professional Conduct

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.

• Keeping abreast of current practice requirements includes “the benefits and risks associated with relevant technology.”

• Competence in locating, reviewing and producing ESI in litigation and regulatory work is among the greatest challenges for lawyers today

• Counsel’s ability to examine and produce ESI is central to managing discovery in the modern age

Duty of Competence

When to hire a consultant:

Any time training and experience of your staff would make you uncomfortable if you had to call them as witnesses

Any time conflicts of interest might really hurt your case

Any time the current workload of your staff would prevent them from focusing on your case

Any time your staff lacks the tools and equipment to handle the job

Duty of Competence: Legal Knowledge & Skill

• Court found plaintiffs’ counsel “did not understand the technical depths to which electronic discovery can sometimes go”

• Counsel has an obligation to search for sources of information to understand where data is stored

• Issued monetary sanctions due to counsel’s failure to speak with key figures at the company

- In re A & M Florida Props. II, 2010 WL 1418861 (Bkrtcy.S.D.N.Y. Apr. 7, 2010).

Duty of Competence: E-Discovery Knowledge is an Obligation

Rules 1.3 & 3.2: Diligence & Expediting Litigation

Rule 1.3A lawyer shall act with reasonable diligence and promptness in representing a client

Rule 3.2A lawyer shall make reasonable efforts to expedite litigation consistent with the efforts of the client

• Diligence is impossible unless you adhere to the duty of providing competent representation of your client

• “Vigorous advocacy” Thorough understanding and analysis of facts, law and data set Not simply knee-jerk opposition to everything the other side

proposes

• Unnecessary motions and efforts to stonewall discovery violate both duties

Diligence & Expediting Litigation

Rule 1.6: Confidentiality

A lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer…

- Comment 16, ABA Model Rule 1.6 Confidentiality of Information

• Protecting privilege in the era of electronic discovery is growing increasingly difficult given the volume of data

• Counsel should consider entering into a protective order, clawback agreement or quick peek agreement

• Counsel should also familiarize themselves with Fed.R.Evid. 502

• Comment 6: Specifically points to changes in technology and how those affect confidentiality

Duty of Confidentiality: Privilege Issues

• Court found privilege was waived regarding e-mails sent via company e-mail addresses using company computers

• Attorney should have been aware client’s employer would be monitoring and accessing e-mail sent to that address since it is now a common practice

- Alamar Ranch, LLC v. County of Boise, 2009 WL 3669741(D. Idaho. Nov. 2, 2009).

Duty of Confidentiality: Attorney Beware

Rule 3.3: Candor Toward The Tribunal

(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law…

***

(3) offer evidence lawyer knows to be false

• “Distorted representations” of discovery production and accuracy contradicted defendants’ duty of candor to the court

• Court ordered defendants to pay $1,000 in sanctions for discovery misconduct

- Baez-Eliza v. Instituto Psicoterapeutico de Puerto Rico, 2011 WL 2413051 (D. Puerto Rico June 16, 2011).

Duty of Candor: Dishonesty Will Cost You

Rule 3.4: FairnessUnobstructed Process and Access to Evidence

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. A lawyer shall not counsel or assist another person to do any such act…

Rule 3.4: FairnessNon-Frivolous Litigation Tactics

A lawyer shall not:(d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent efforts to comply with a legally proper discovery request by an opposing party….

• Plaintiff failed to abide by local rule requiring attorneys to meet and confer in good faith before filing motion to compel

• Court warned the parties to “act less like armed combatants and more like highly skilled professionals” going forward

- B & B Hardware, Inc. v. Fastenal Co., 2011 WL 2115546 (E.D. Ark. May 25, 2011).

Courts Require Good Faith Efforts

• Attorneys “embarked upon a course entailing a conscious effort to maximize litigation and to make certain [it] was as time-consuming, difficult, unpleasant, and expensive as possible”

• Two attorneys were held personally liable in the amount of $3,750 each, to be paid without reimbursement from the law firms or clients.

- Alford v. Rents, 2010 WL 4222922 (S.D. Ill. Oct. 20, 2010).

Courts are Losing Patience for Lack of Cooperation

Emerging Technologies

• Strategic Searching

• Conceptual Searching and Clustering

• Early Data Analysis

• Advanced Analytics

• Predictive Coding

Emerging Technologies

High-Level Workflows

Based on Electronic Discovery Reference Model (EDRM), www.edrm.net, used with permission

INFORMATIONMANAGEMENT IDENTIFICATION

COLLECTION

PRODUCTION PRESENTATION

PRESERVATION

VOLUME RELEVANCE

PROCESSING

REVIEW

ANALYSIS

Electronic Discovery Reference Model

Collect Broadly Review Everything

Targeted Collection Review Everything

Early Workflows

Reducing universe of potentially producible data during IDENTIFICATION or COLLECTION phases

Collect Broadly Search Terms Review Everything

Collect Search Terms Priv Terms Produce w/ Clawback

Identify Sample Terms Negotiate Review

ID With Strategic Search Collect Review Everything

Collect SBVR ECA Analytics Review Remainder

Evolving Workflows

Reducing universe of potentially producible data during PROCESSING or ANALYSIS phases

Collect Preview Noise Filter Code Ref Set

Exclude Validate Review Remainder

Collect Random Sample Train Classifier

Assess PR Targets Finish Classifier Apply Coding

Sample Validate

Advanced Workflows

Reducing universe of potentially producible data during ANALYSIS and REVIEW phases

Based on Electronic Discovery Reference Model (EDRM), www.edrm.net, used with permission

INFORMATIONMANAGEMENT IDENTIFICATION

COLLECTION

PRODUCTION PRESENTATION

PRESERVATION

VOLUME RELEVANCE

PROCESSING

REVIEW

ANALYSIS

Electronic Discovery Reference Model

Defensibility

The best technology in the world cannot compensate for lack of expertise and sound process.

Internal Thresholds

• Enterprise Software

• Internal Expertise

• Internal Process Development

• Outside Counsel

• Vendors and Consultants

LITIGATION PROFILE | RISK TOLERANCE | COMPLIANCE OBLIGATIONS

What Can We Handle?

Parting Thoughts

Cooperation is paramount - Zealous Advocacy does not amount to a “fight everything” mentality

Judge Waxse: Lawyers as “spoiled children” in constant need of adult supervision through a judge.

Solution: Enforce cooperative behaviors through MRPC

See David J. Waxse, Cooperation—What is it and Why do it?, XVIII Rich. J.L. & Tech. 8 (2012);

Uncooperative behavior is per se unethical

Cooperation and principles of fair play at the foundation of our professional duties as lawyers

Inability to cooperate is one of the primary causes of rising e-discovery costs

See The Sedona Conference, Cooperation Proclamation, 10 Sedona Conf. J. 331 (2009 Supp.)

Parting Thoughts

Q&A