Techshow Day 2 PM: Ethics in e-Discovery

And we’re back after lunch. Had a good time chatting and meeting folk at lunch, so if you were one of the folks at my table, thanks, and if you’re ever in Columbus, drop me an email!

Had such a good time chatting got to the session as it was already starting:

Sharon Nelson: Search smart to cut the costs, don’t leave searching up to untrained associates. Judges have had enough of attorney’s claiming tech ignorance.

Due diligence Munster v Groce “Duty to Google”, attorney didn’t Google for missing defendant. Perhaps a duty to check MySpace and Facebook? Especially in Family Law, but can really find interesting information about employees, that you should be concerned about.

Dave Reis: ABA Model Rules of Professional Conduct is the model, but states have important variances of the ethics involving metadata, etc. Two duties, one to client, one to adversarial system, to the parties and the court. Key ethics rules on the duties to clients: Competence, Diligence, Communication and Confidentiality of Information. Duties to system: Comply with Ethics Rues, Comply with laws and court rules, Professionalism.

Judge Dixon: Fairness to Opposing Party and Counsel, no obstructing other party’s access to proper information, or encouraging others to. Have to make a serious discovery request, and comply with requests of you.

Attorney “shall make reasonable efforts to expedite litigation, consistent with the best interests of the client”, be careful not to cross that line between delaying just to delay and delaying because it’s in the clients interests. Also, don’t get caught lying to the court, it will not go well for you.

Rule 5.3 Responsibilities Regarding nonlawyer assistants. (That’s where Lit Support falls.)

ESI is high risk for protection of privilege, because of the volume to be reviewed.

Federal Rules, if you receive something that you reasonably should know you shouldn’t have, you have to promptly notify the sender. Some States require you not to use it at that point, the ABA rules allow for the judge to determine that.

Data loss tends to happen accidentally, but is still subject to sanctions. Stop and think about pulling tapes out of rotation, stop auto defragging and auto deletion of email (janitorial functions) quit using a PC until you forensically image it, if necessary. Act promptly, it’s not paper, it won’t always just sit there like a sheet of paper does.

Arthur Anderson case, “it is not wrongful for a manager to instruct his employees to comply with a valid document retention policy under ordinary circumstances”. (Pre-litigation) Sedona Conference: “Destruction is an acceptable stage in the information life cycle….” (Sharon would change “may” destroy to “should” destroy electronic information that has no continuing value.)

Litigation Hold: Sooner rather than later. Obligation to retain arises when there’s notice the evidence is relevant to litigation, and when they should have known that the evidence may be relevant to future litigation. (of course, the definition of when you should have known is an area of much dispute.)

Cache La Poudre Feeds, LLC v. Land o’ Lakes: very clear decisions about ediscovery requests, and the need for clear, concise requests which can be explained to the court.

When involved in litigation you don’t have to keep everything, but you need to keep what is “relevant in the action”, ” is reasonably likely to lead to admissible evidence, be requested or already has been requested. (Rambus case rulings, in materials on conference CD)

“Once on notice, the obligation to preserve evidence runs first to counsel…who then has a duty to advise and explain to the clients its obligations to retain pertinent information…”. Telecom Int’l America v AT&T

Zubulake: Attorney issues litigation hold at outset and periodically reissue, communicate with key players, have all relevant employees produce relevant documents, make sure all backup media are stored and identified.

Phoenix Four v. Strategic Resources: Client and Attorney both sanctioned, data was not produced timely, from legacy system that they had access to.

Sanctions possible: Obstruction of justice charge, default judgment, preclusion order, contempt, adverse inference instruction, ethics violations, possibly tort actions. There is no tolerance for spoliation.

Metadata scrubbing, required of confidential information you are sending, not allowed when preserving ESI. State rules on what you can do with metadata that shouldn’t have been sent to you vary widely! Some you are not allowed to review, some you always can, some you can some of the time. 🙂

Ok I’m officially scared, wonder if I can go back to just working at the help desk? Just kidding, boss. 😉

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