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Proposed Opinion on E-Discovery and Ethics Cautions Lawyers Not to Be Overly Confident

Thursday, April 10, 2014

By Joan C. Rogers  

March 28 --Even experienced litigators may breach their professional duties of competence and confidentiality, as well as a separate obligation not to suppress evidence, if they assume they can handle “e-discovery” in a complicated case without making sure they know what they're doing or else getting outside assistance, according to a proposed opinion posted March 28 by the California bar's ethics committee (Cal. State Bar Standing Comm. on Prof'l Responsibility & Conduct, Proposed Formal Op. 11-0004).

When lawyers are approached about handling litigation that is likely to involve e-discovery, the committee said, they are obligated to get up to speed on the subject, or else either hire someone who knows what to do or decline the representation.

The committee is asking for comment on the proposed opinion through June 24.


Additional Advice on Risk Management and Ethics Issues That Law Firms Face in E-Discovery

Much like the California's bar's proposed advice on competence in e-discovery, the general counsel of a major law firm told attendees at the 2014 Legal Malpractice & Risk Management Conference that “the goal is that everybody knows enough to get it right or ask what they need to know.”

D. Ronald Ryland, partner and general counsel at Sheppard, Mullin, Richter & Hampton LLP in Chicago, made that point March 6 in a panel discussion about “Developments (and Sometimes Disasters) in High-Tech E-Discovery.”

Broadly speaking, Ryland said, e-discovery should be handled by specialists in a law firm. Some firms have a partner in charge of e-discovery and some have a team; other firms rely on lawyers to know as much as they should, he said.

Panel moderator Steven M. Puiszis, a partner and trial attorney at Hinshaw & Culbertson LLP, Chicago, asked what training is available to law firms on dealing with e-discovery if they don't have a team of specialists on the subject.

A central message of such training, Ryland responded, is that missteps in discovery could be a career-ending event. Young lawyers have even been referred to the bar in some cases involving discovery lapses, he said.

Fellow panelist Jennifer H. Rearden, a partner at Gibson Dunn in New York, said that traditionally the youngest lawyers in a firm have been assigned to deal with document production. But with so many gray areas in the case law on e-discovery, firms need to be careful about how they staff this part of a case, Rearden said. Clients get angry, she said, when litigation devolves into a sideshow about collection and preservation of data.

See also “Experts Explore What Lawyers Need to Know for Use of 'Predictive Coding' in E-Discovery,” 28 Law. Man. Prof. Conduct 518; “Recent Court Decisions on E-Discovery Focus on Sanctions, Cooperation, Study Says,” 26 Law. Man. Prof. Conduct 477; “Panels Discuss Attorneys' Obligations Arising Out of Use of Electronic Media,” 25 Law. Man. Prof. Conduct 576.

See generally Karl Schieneman & Thomas C. Gricks, The Implications of Rule 26(g) on the Use of Technology-Assisted Review, 7 Fed. Cts. L. Rev. 239 (2013) (discussing counsel's obligations in making certifications under Fed. R. Civ. P. 26(g) about discovery produced through technology-assisted review); Steven M. Puiszis, Reconciling Federal Rule of Evidence 502 With Model Rule 1.6, For the Defense, March 2013, p. 18 (discussing use of nonwaiver agreements under Fed. R. Evid. 502 and ethics issues surrounding use of those tools).


Know What You Don't Know.

A lawyer's duty of competence under California Rule of Professional Conduct 3-110 (Failing to Act Competently) generally requires a basic understanding of issues relating to the discovery of electronically stored information (ESI), the committee said. Moreover, it said, in some cases e-discovery demands a higher level of technical knowledge that even experienced litigators may not possess.

According to the opinion, a lawyer who lacks the necessary competence for e-discovery in a particular case has three options: (1) acquire sufficient learning and skill at an early point before e-discovery begins; (2) consult technical experts or associate with competent counsel; or (3) decline the representation.

Drawing on federal case law, the committee advised that in litigation involving discovery of electronically stored information, lawyers need to have the technical knowledge and skill--either by themselves or in association with competent co-counsel or expert consultants--to do the following:

• assess e-discovery needs and issues at the outset;

• implement procedures to preserve ESI and advise the client about the duty to preserve evidence;

• analyze and understand a client's ESI systems and storage;

• identify custodians of relevant ESI;

• perform appropriate searches;

• collect ESI in a manner that preserves its integrity;

• advise the client about options for collecting and preserving ESI;

• “meet and confer” with opposing counsel concerning an e-discovery plan; and

• produce ESI in a recognized and appropriate manner.

 

To flesh out its guidance, the committee posited a hypothetical lawyer who represented a client in a suit brought by the client's chief competitor--and wound up in a big mess.

The fictional lawyer (1) failed to evaluate e-discovery issues and did not consult with an e-discovery expert before the initial case management conference; (2) accepted opposing counsel's e-discovery plan, containing overly broad search terms, under a mistaken belief that a clawback provision in the agreement would enable any erroneously produced information to be recovered; (3) didn't instruct the client about the need to preserve ESI; and (4) neglected to review data gathered in the ESI searches until opposing counsel asserted spoliation and threatened sanctions.

These e-discovery failings “were arguably reckless and/or at the very least repeated,” and therefore breached the lawyer's duty of competence, the committee said.

Although California has not yet adopted any version of the ABA Model Rules of Professional Conduct, the committee cited language the ABA recently added to the official comment accompanying Model Rule 1.1, stating that a lawyer's duty of competence includes “keep[ing] abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”

Confidentiality Blown

The hypothetical lawyer also breached his duty of confidentiality under Rule 3-100(A) (Confidential Information of a Client) and Section 6068(e) of the California Business and Professions Code by not taking reasonable care to protect the client's digital data, the committee said.

The proposed opinion points out that the lawyer chose to release ESI without prior review in reliance on a clawback agreement that he misunderstood. The broad search terms to which he agreed resulted in his client's highly confidential proprietary information being produced to the opponent, yet the clawback agreement only covered protected ESI that was released inadvertently, the committee noted.

The opponent may be able to argue that production of the sensitive information was not inadvertent, that the clawback provision does not apply to it and that the attorney-client privilege has been waived, it said.

Whatever the eventual rulings on those issues, the lawyer violated his duty of confidentiality because he did not take reasonable steps to minimize the risks and was directly responsible for the release of the client's confidential and privileged information to the opponent, according to the opinion.

Lack of Candor

The committee also suggested that the fictional lawyer may have suppressed evidence, in violation of Rule 5-220 (Suppression of Evidence), by not counseling his client at the outset to institute a litigation hold that would preserve potentially relevant documents, including ESI.

Failure to implement an immediate litigation hold can lead to suppression of evidence because electronic data can easily be deleted or altered through routine document retention policies or even intentionally, the committee said.

“Counsel would be prudent to consider the proper use and monitoring of litigation holds to assist him or her in complying with the duty not to suppress evidence,” the opinion states.

The committee also suggested that the hypothetical lawyer might be accused of violating his duty of candor to the court under Rule 5-200 (Trial Conduct) and Section 6068(d). Even though the lawyer had not reviewed the search results, he assured the judge that he had done so and that the client was in compliance with its discovery obligations, the committee said.

To contact the reporter on this story: Joan C. Rogers in Washington at jrogers@bna.com

To contact the editor responsible for this story: Kirk Swanson at kswanson@bna.com


Full text of the proposed opinion at http://www.calbar.ca.gov/Portals/0/documents/publicComment/2014/2014_11-0004ESI03-21-14.pdf.

Public comment notice at http://www.calbar.ca.gov/AboutUs/PublicComment/201404.aspx.

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