Ethical issues in e-discovery arise due to the unique challenges and the complex nature of electronic data. The ethical challenges presented demand careful consideration and require lawyers to remain competent in emerging technology and the implications on e-discovery.
In the August 10, 2023 Edition of The Legal Intelligencer, Kelly Lavelle wrote “Beware of Ethical Issues in Today’s E-Discovery Landscape.“
Ethical issues in e-discovery arise due to the unique challenges and the complex nature of electronic data. The ethical challenges presented demand careful consideration and require lawyers to remain competent in emerging technology and the implications on e-discovery.
Under the American Bar Association’s Model Rules of Professional Conduct, attorneys must provide competent representation to a client. Model Rule 1.1 provides that competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. In 2012, the ABA amended this rule to highlight that an attorney’s ethical duty of competence includes a reasonable understanding of the benefits and risks associated with relevant technology. Notably, Comment 8 to Model Rule 1.1 emphasizes the need for lawyers to stay abreast of changes in the law and its practice, particularly those pertaining to technology. The comment clarifies that Rule 1.1 should be interpreted to mean that attorneys must maintain technological competence. Although the amendment did not introduce new obligations, it serves as a reminder to lawyers that they should remain aware of emerging technology as part of their ethical responsibility to remain competent.
Another important aspect of ethics in e-discovery relates to the supervision of attorneys in dealing with electronically stored information. The Model Rules of Professional Conduct impose ethical responsibilities upon both supervising and subordinate lawyers. Model Rule 5.1 provides that lawyers with direct supervisory authority must make reasonable efforts to ensure that subordinate lawyers adhere to the Rules of Professional Conduct. Supervising lawyers may be held responsible for a subordinate lawyer’s violation of the rules of professional conduct. This responsibility includes instances where the supervising attorney orders, ratifies, or fails to take remedial action when they are aware of unprofessional conduct at a time when its consequences can be avoided or mitigated.
Subordinate lawyers also have ethical responsibilities even when they act at the direction of a supervising attorney. However, Model Rule 5.2 acknowledges that a subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty. In the complex world of e-discovery, partners can no longer take a hands-off approach and rely on new associates or paralegals for tasks involving electronically stored data. Attorneys may need to retain a technology expert or other consultants to aid in the process of e-discovery, which can give rise to additional ethical concerns, particularly regarding confidentiality.
The form of production of documents and electronically stored data also poses ethical considerations in e-discovery. Under Rule 34 of the Federal Rules of Civil Procedure, a producing party must produce documents in the form they are ordinarily maintained or in a reasonably usable form. This ensures that the documents are searchable or sortable by metadata fields. Further, Rule 34 prohibits simply dumping large quantities of unrequested materials onto the discovering party along with the items sought. Data dumping in e-discovery with the intention of hiding relevant information is an ethical violation. Submitting a single PDF file that contains the entire production is the electronic equivalent of a paper document dump. This results in a file that cannot be searched or sorted by metadata fields and causes undue burden upon the receiving party. It is unlikely that the original documents were kept as a single PDF file in the ordinary course of business, and the form lacks the organization and labeling required by Rule 34. Further, a single PDF file is an inappropriate and impractical form for e-discovery because of the large file size and lack of metadata. Courts have granted motions for sanctions when parties produced emails or discovery as a single PDF file, emphasizing the need for reasonable and usable forms of production.
Another paramount ethical responsibility for lawyers in e-discovery is the protection of confidential client information. Electronic discovery greatly increases the volume of information that must be reviewed for privilege. In addition, with the production of electronically stored data, there is the unique issue of possible privileged information appearing in metadata. Model Rule 1.6 governs a lawyer’s duty of confidentiality. Rule 1.6 provides that lawyers have an ethical duty to take reasonable measures to protect a client’s confidential information from inadvertent or unauthorized disclosure. However, Comment 18 clarifies that inadvertent disclosure of client information does not violate the rule if the lawyer has made efforts to prevent the disclosure.
To mitigate the risk of negative consequences arising from inadvertent disclosure under Model Rule 1.6, lawyers should carefully consider the protective measures afforded by Federal Rule of Evidence 502(d). This rule allows a federal court to enter an order known as a 502(d) order granting parties the ability to protect privileged materials from being inadvertently disclosed during the discovery process. Rule 502(d) provides that unintentional disclosure of materials protected under the attorney-client privilege or attorney work product doctrine shall not result in waiver. Unlike under Rule 502(b), a 502(d) order does not impose the requirement that the producing party took “reasonable steps to prevent disclosure” to establish nonwaiver.
In conclusion, ethical considerations are fundamental to navigating e-discovery responsibly. Adhering to ethical principles not only ensures that lawyers provide competent representation and protect client confidentiality but also signifies a commitment to staying abreast of technological advances on e-discovery. As technology evolves, lawyers must prioritize ongoing education and training to remain proficient in e-discovery practices and meet their ethical obligations.
Kelly A. Lavelle is an associate at Kang Haggerty. She focuses on e-discovery and information management, from preservation and collection to review and production of large volumes of electronically stored information. Contact her at klavelle@kanghaggerty.com.
Reprinted with permission from the August 10, 2023 edition of “The Legal Intelligencer” © 2023 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.