This is not your grandfather s litigation. BUT. ediscovery Services are not legal services.

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2 This is not your grandfather s litigation. BUT ediscovery Services are not legal services.

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4 TYPES OF ETHICAL ISSUES THAT MIGHT ARISE IN THE CONTEXT OF ediscovery: Document collection Privacy issues Inadvertent disclosure Preservation of electronicallystored information Methods for gathering/retrieving documents Search criteria Distribution of Attorney-Client privileged information The implications of metadata Form of production Law firm/corporate data security Confidentiality of transmitted information Keeping paper files Electronic filing Document repositories Access to data

5 1. Professionalism - Service Providers should perform their work in a competent, accurate, timely and cost-effective manner, adhering to the highest standards of professionalism and ethical conduct. 2. Engagement - Service Providers should collaborate with Clients to establish and memorialize the terms of their relationship including any reasonably foreseeable parameters as early as possible upon the initiation of any new engagement. 3. Conflicts of Interest - Service Providers should employ reasonable proactive measures to identify potential conflicts of interest, as defined and discussed below. In the event that an actual or potential conflict of interest is identified, Service Providers should disclose any such conflict and take immediate steps to resolve it in accordance with the Guidelines set forth below. 4. Sound Process - Service Providers should define, implement and audit documented sound processes that are designed to preserve legal defensibility. 5. Security & Confidentiality - Service Providers should establish and implement procedures to secure and maintain confidentiality of all Client ESI, communications and other information.

6 Ralph Losey, Ethics of Electronic Discovery Part One

7 FOUR FUNDAMENTAL FORCES IN ediscovery THAT EXPLAIN MOST MISCONDUCT: 1. A general lack of technological sophistication. 2. Over-zealous attorney conduct. 3. A lack of development of professional duties as an advocate. 4. Legal incompetence. Ralph Losey, Lawyers Behaving Badly: Understanding Unprofessional Conduct in ediscovery, 60 Mercer L. Rev. 983 (Spring 2009)

8 Ralph Losey, Ethics of Electronic Discovery Part One

9 Rule 1.1 Competence Rule 1.3 Diligence Rule 1.6 Confidentiality Rule 3.2 Expediting Litigation Rule 3.3 Candor Toward the Tribunal Rule 3.4 Fairness to Opposing Party and Counsel Rule 5.3 Responsibilities Regarding Nonlawyer Assistance American Bar Association Model Rules for Professional Conduct

10 TRENDS: 1. Technology has irrevocably changed and continues to alter the practice of law in fundamental ways... Lawyers must understand technology in order to provide clients with the competence and cost-effective services that they expect and deserve. 2. [G]lobalization continues to transform the legal market place... ABA Commission on Ethics 20/20 Introduction and Overview

11 Technology affects nearly every aspect of legal work, including how we store confidential information, communicate with clients, conduct discovery, engage in research and market legal services. Even more fundamentally, technology has transformed the delivery of legal services by changing where and how these services are delivered, and is having a related impact on the cost of, and the public s access to, these services. ABA Commission on Ethics 20/20 Introduction and Overview

12 A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. ABA Model Rules for Professional Conduct

13 A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Comment 6: To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject. ABA Commission on Ethics 20/20 Resolution, adopted ABA Annual Meeting, August 2012

14 Model Rule 1.1 requires a lawyer to provide competent representation, and Comment [6] specifies that, to remain competent, lawyers need to keep abreast of changes in the law and its practice. The Commission concluded that, in order to keep abreast of changes in law practice in a digital age, lawyers necessarily need to understand basic features of relevant technology and that this aspect of competence should be expressed in the Comment. For example, a lawyer would have difficulty providing competent legal services in today s environment without knowing how to use or create an electronic document. Comment [6] already encompasses an obligation to remain aware of changes in technology that affect law practice, but the Commission concluded that making this explicit, by addition of the phrase including the benefits and risks associated with relevant technology, would offer greater clarity in this area and emphasize the importance of technology to modern law practice. The proposed amendment, which appears in a Comment, does not impose any new obligations on lawyers. Rather, the amendment is intended to serve as a reminder to lawyers that they should remain aware of technology, including the benefits and risks associated with it, as part of a lawyer s general ethical duty to remain competent. ABA Commission on Ethics 20/20 Report to the ABA House of Delegates

15 (c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client. Comment 16: The unauthorized access to, or the inadvertent or unauthorized disclosure of, confidential information does not constitute a violation of paragraph (c) if the lawyer has made reasonable efforts to prevent the access or disclosure. Factors to be considered in determining the reasonableness of the lawyer s efforts include, but are not limited to, the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use). A client may require the lawyer to implement special security measures not required by this Rule or may give informed consent to forgo security measures that would otherwise be required by this Rule.... ABA Model Rules for Professional Conduct

16 Requires lawyers to make reasonable efforts to ensure that nonlawyers provide their services in a manner that is compatible with the lawyer s own professional obligations, including the lawyer s obligation to protect client information. Lawyers must also give appropriate instructions to nonlawyers outside the firm when retaining or directing those nonlawyers. A lawyer may use nonlawyers outside the firm to assist the lawyer in rendering legal services to the client. Examples include the retention of an investigative or paraprofessional service, hiring a document management company to create and maintain a database for complex litigation, sending client documents to a third party for printing or scanning, and using an Internet-based service to store client information.... In some situations, a matter may require the use of technology that is beyond the ordinary lawyer s expertise. For example, electronic discovery may require a sophisticated knowledge of how electronic information is stored and retrieved. Thus, another development associated with technology is that lawyers are increasingly disaggregating work by retaining other lawyers and nonlawyers outside the firm (i.e., outsourcing work to lawyers and nonlawyers) to perform critical tasks. Technology also permits the integration of these otherwise disaggregated workstreams encouraging clients and workstreams, lawyers to outsource elements of a representation... ABA Model Rules for Professional Conduct

17 Michael Arkfeld Treatises and texts Arkfeld & Associates (www.arkfeld.com) FREE State Case/Rule Database FREE Litigation Intelligence Database FREE Provider/Expert Database The Ethics of E-Discovery, John M. Barkett American Bar Association Section of Litigation, Pretrial Practice & Discovery Committee E-Discovery Resource Center (http://apps.americanbar.org/litigation/committees/pretrial/ediscovery/home.html) Section of Science & Technology Law: E-Discovery and Digital Evidence Committee (http://apps.americanbar.org/dch/committee.cfm?com=st203001) Law Practice Management Section, Legal Technology Resource Center (http://www.americanbar.org/groups/departments_offices/legal_technology_resources.html) The ediscovery Team (www.ediscoveryteam.com) Blog by Ralph Losey

18 QUESTIONS?

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