On April 12, 2006, the United States Supreme Court approved the proposed amendments to the Federal Rules of Civil Procedure that address the discovery of electronically stored information (ESI). The new proposed rules and amendments took effect on December 1, 2006.
Some issues related to ethics within the E-Discovery process include:
- Impact of new Federal Rules on ethical obligations
- Duties when faced with inadvertent disclosure of adversaries' documents
- Relevant ethical rules
- Review of metadata implications
- Special considerations for corporate counsel
- Scope of the safe harbor rule 37(f)
- Ethical issues surrounding the preservation of electronic documents
- Questions surrounding "meet and confer" obligations, including repercussions of saying nothing and providing nothing
- Attempts to shield production of electronic documents
- Inadvertent production of privileged documents
- Disclosure of search criteria
- Disclosure of metadata
- Interception of email
- Standards for use of technology by attorneys
Meet & Confer Timeline Shortened to 99 Days From Case Filing
Under the new Federal Rules, parties have 21 days before a scheduling conference or 21 days before a R.16(b) scheduling order, the parties are to confer . . .
- To discuss any issues relating to preserving discoverable information
- To develop a proposed discovery plan
- To discuss any issues related to disclosure or discovery of electronically stored information (ESI), including the form or forms in which it should be produced
- To discuss any issues relating to privilege claims, including the potential for a clawback agreement to be included in a court order
Discussion Topics at the Rule 26(f) Meet & Confer Include:
- Discussion of each side's IT systems -- including definitions
- Development of a discovery plan that contemplates each side's system capabilities
- Preservation of electronic information
- Time frames for production
- Accessibility/inaccessibility of data under new Rule 26(b)(2)(B)
- Form (or forms) of production
Technology & Competence
The first rule in legal ethics is that a lawyer must be competent. Failure of a lawyer to use technology properly can lead to client harm and thus the claim that the lawyer has acted incompetently.
The failure of a lawyer to back up her computer system could result in the loss of crucial client data.
Failure of a lawyer to use standard antivirus software can cause the loss of crucial client data.
Some tribunals and government agencies require electronic filing. Some prohibit electronic filing. Thus, failure to know the difference can cause harm to a client.
Ensuring Confidentiality of Transmitted Information
Florida Ethics Opinion 06-2 states that a lawyer who is sending an electronic document should take care to ensure the confidentiality of all information contained in the document, including metadata.
Rule 1.6 and DR 4-101 are the principal provisions requiring lawyers to protect client information. The ways in which a lawyer can violate her duties of confidentiality to her client through the misuse of technology are virtually endless.
Misdirected Facsimiles or E-mails
It is possible to send a fax or an E-mail to the wrong person, thereby disclosing client confidences to someone who should not have them. Speed dialing and the ability to send documents to multiple locations increase the danger. No case law or ethics opinion holding that misdirecting a fax or E-mail violates the ethics rules on confidentiality; however, lawyer carelessness in this regard could lead to such a finding.
A lawyer receiving an electronic document should not try to obtain information from metadata that the lawyer knows or should know is not intended for the receiving lawyer. A lawyer who inadvertently receives information via metadata in an electronic document should notify the sender of the information's receipt.
On August 11, 2005, the First Circuit issued its en banc decision in U.S. v. Councilman, 2005 WL 1907528 (1st Cir. Aug. 11, 2005), where it held that interception of e-mail while on its way to the recipient violated the Electronic Communications Privacy Act. This case lends strength to the position of those who believe that attorneys may use e-mail without encryption.
In November 2004, The First Circuit vacated its prior opinion in U.S. v. Councilman (1st Cir. 2004), which held that the ECPA does not prevent interception of e-mail as it is stored in a router. The First Circuit is taking the case for en banc rehearing. The outcome could be important to the question of whether lawyers can send plaint text (unencrypted) e-mail.
Lawyers increasingly send documents as E-mail attachments. However, some still use floppy disks.
Failure to use new, or "fresh," floppies could result in a breach of client confidentiality. For example, it may be possible for the recipient to detect earlier drafts of the subject document. Or the floppy could contain confidential information of other clients.
Steps should be taken to ensure that hardware that is scrapped, traded in, or sold does not contain client information. Likewise, hardware that is rented or leased should be checked for client information before being returned to its owner.
Requirements About Keeping Paper Record Copies
The Virginia State Bar Association ruled in June of 2006 that Virginia lawyers may maintain client files exclusively in electronic format without any paper copies as long as the client's interests are not prejudiced. Lawyers may also destroy paper copies as long as the client consents. The only exceptions are items that have independent legal significance such as testamentary documents and marriage certificates. See, Virginia St. Bar. Standing Comm. on Legal Ethics, Op. 1818.
Advisory Opinions on Storing Client Records
The Nevada State Bar opined that law firms may store electronic client records on third party remote servers as long as the firm selects the company with care and the company agrees to keep the information confidential. See, Nev. St. Bar Standing Comm. on Ethics and Professional Resp. Formal Op. 33.
On February 9, 2006, the Nevada Bar Association issued an opinion saying it was proper to outsource electronic storage of client files to third parties, so long as the lawyer acts reasonably to safeguard the files.
The Arizona State Bar Association in July 2005 issued Opinion 05-04 which holds that it is permissible for lawyers to store client data on a computer which is connected to the Internet, but only if the lawyer takes "reasonable steps" to assure that the confidentiality over such information is not lost through inadvertence or theft.
Rules Regarding Internet Discussion Groups
Lawyers who participate in Internet discussion groups should avoid including any confidential information that could be associated with a particular case or controversy. Postings that give identifying details about cases can result in problems such as waiver of work product protection or inadvertent communications with judges involved on a case.
On August 19, 2005, the Professional Responsibility and Ethics Committee for the Los Angeles Bar Association issued Formal Op. 514, holding that attorneys should avoid including any confidential or private information in a Listserv or other Internet posting that could be identified to a particular case or controversy.
Duties and Responsibilities Surrounding Metadata
On January 6, the Florida Bar took the position that mining metadata is unethical.
The ABA, however, has issued a statement that the use of metadata complies with their ethical standards for attorneys.
The New York Bar Association acknowledges in an ethics opinion that under some circumstances there may be a duty to avoid disclosure of metadata and similar hidden information.
Best Practices for Managing Discovery & Litigation
- Build an in-house team to formulate and enforce best practices for electronic discovery
- Identify your E Discovery allies at your outside law firms
- Leverage technology to realize true cost savings by internalization and matter synergy
- Locate technology assets at your outside firms to avoid vendor fees
- Implement strategic technical and policy initiatives to fulfill discovery obligations efficiently
- Recognize the benefits of search and retrieval technology
- Select vendors and maintain vendor relationships using the RFP Process