1 ABA Labor & Employment Law Section 2012 National Conference on EEO Law Top 5 Ethical Issues in E-Discovery Maureen E. O Neill SVP, DiscoverReady LLC Copyright 2012 DiscoverReady LLC. All Rights Reserved.
I. Introduction Although the rules of professional conduct applicable to the discovery of electronically stored information ( ESI ) are no different than the rules governing traditional paper discovery, there are some aspects of e-discovery that give rise to unique ethical considerations. This paper explores several of the most common, and most thorny, of those concerns the Top 5 ethical issues in e-discovery. These issues include: Carrying out the duty to preserve relevant ESI while appropriately delegating that work to competent persons and adequately supervising their efforts. Meeting and conferring on e-discovery issues while balancing the need for transparency and cooperation with the lawyer s duties to act as a diligent and zealous advocate and to protect her client s confidential information. Managing high-volume productions of ESI while effectively supervising document reviewers, protecting client confidential and privileged information, charging reasonable legal fees, and acting with fairness and candor to the opposing party and the court. Employing sophisticated e-discovery software tools and processes while carrying out the duty to act competently. Accessing and using information from social media sites in discovery while honoring the duty to avoid misrepresentations and the obligation not to communicate about a matter with persons who are represented by counsel. Each of these concerns is discussed below, along with practical guidance for complying with the ethical rules triggered by each e-discovery issue. II. Preserving Relevant Electronically Stored Evidence A. Introduction: The Legal Requirement to Preserve ESI 1. The common law duty to preserve evidence: The common law duty to preserve evidence including ESI requires a party to take reasonable and good faith actions to identify, locate, and maintain information that is likely to be relevant in reasonably anticipated, threatened, or pending litigation. See The Sedona Principles: Best Practices Recommendations & Principles for Addressing Electronic Document Production (Second Edition, June 2007) (available for download at http://www.thesedonaconference.org) ( The Sedona Principles ), Principle 5 and Comment 5.a. 1
Sometimes it is obvious that a party will be involved in litigation and the duty to preserve therefore has been triggered for example, when a complaint has been served, a subpoena has been received, or a government agency investigation has been initiated. In many instances, however, whether a triggering event has occurred is harder to determine. Deciding whether litigation is reasonably anticipated and the duty to preserve evidence exists requires an analysis of the surrounding facts and circumstances. 2. Carrying out the duty to preserve: Once there is an obligation to preserve information, an organization and its legal counsel must decide what to preserve, how to carry out the preservation, and how to monitor compliance with the preservation obligation. With respect to the scope of what must be preserved, courts have made clear that a party need not preserve every shred of paper, every e-mail or electronic document, and every backup tape. Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2003). Indeed, such a rule would cripple large corporations. Id. Nevertheless, while a litigant is under no duty to keep or retain every document in its possession, it is under a duty to preserve what it knows, or reasonably should know, is relevant in the action, is reasonably calculated to lead to the discovery of admissible evidence, is reasonably likely to be requested during discovery, and/or is the subject of a pending discovery request. Wm. T. Thompson Co. v. General Nutrition Corp, Inc., 593 F. Supp. 1443, 1455 (C.D. Cal. 1984). With regard to how an organization implements the duty to preserve, in most instances the preservation obligation is communicated to potential custodians of information through a written litigation hold or legal hold notice. Such a written notice will direct persons potentially in possession of relevant information to segregate and protect from destruction documents and data that are, or arguably might be, relevant to the threatened or pending matter. The initial hold notice (and subsequent reminders, which should be issued periodically) should describe the matter at issue, provide specific examples of the types of information subject to the hold notice, explain any limitations around the scope of the obligation (such as geographic or date limits), identify potential sources and locations of information, inform recipients of their obligation to preserve information, and describe the potential legal consequences to the individual and the organization of noncompliance. Once a legal hold has been put in place, an organization must take steps to monitor initial and ongoing compliance with the hold. Tools to accomplish this may include holding in-person meetings with key custodians at the outset of the matter, and follow-up meetings periodically thereafter; requiring periodic compliance certifications from custodians; and conducting audit and sampling procedures. Organizations may also consider employing technological tools, such as automated solutions and dedicated legal hold serves to facilitate and track employee compliance. 2
B. Ethical Implications of the Preservation Obligation 1. Delegating and supervising implementation of the legal hold to persons competent to carry out that work: In most instances, a lawyer responsible for a litigation matter will delegate work related to the issuance and implementation of a legal hold to other lawyers (both within her firm and at the client s in-house legal department) and to certain nonlawyers, such as paralegals, administrative staff, HR representatives, and IT personnel. This delegation of work implicates ABA Model Rule of Professional Conduct ( ABA Model Rule ) 5.1 ( Responsibilities of a Partner or Supervisory Lawyer ) and ABA Model Rule 5.3 ( Responsibilities Regarding Nonlawyer Assistants ). 1 Essentially, these rules require a supervising lawyer to ensure that the persons to whom she is delegating work comply with the rules of professional conduct and the standards they create, including the duty of competency found in ABA Model Rule 1.1 ( Competence ). Thus, if a lawyer delegates to a paralegal the task of distributing a legal hold notice and tracking receipt of the notice, she must ensure that the paralegal is adequately trained and experienced to take on this work. Similarly, if a lawyer entrusts her client s HR staff to conduct interviews with possible document custodians and determine if they in fact possess relevant information subject to the legal hold, she must take responsibility for the thoroughness and accuracy of that work. 2. Delegating to the client compliance with the legal hold: The lawyer and his client share responsibility for ensuring compliance with a legal hold, and that evidence subject to preservation is not lost or destroyed. But the client bears much of the workload in actually carrying out the preservation, and counsel may appropriately rely on the client to do that work. In one of the now seminal cases regarding the duty to preserve electronic evidence, Zubulake v. UBS Warburg, 2004 WL 1620866 (S.D.N.Y. July 20, 2004), the court explained that counsel need not supervise every step of the document production process and may rely on their clients in some respects. The court also noted that [a] lawyer cannot be obliged to monitor her client like a parent watching a child and that [a]t the end of the day... the duty to preserve and produce documents rests on the party. That said, however, the court in Zubulake and other courts around the country place a heavy burden on the outside lawyer to take steps to ensure the client s compliance with a legal hold. In Zubulake, the court noted that, although the client failed in many ways to prevent the destruction of relevant documents, defense counsel was partly to blame for the destruction because it had failed in its duty to locate relevant information, to preserve that information, and to timely produce that information. In 1 This paper does not aim to present a state-by-state survey of applicable ethical rules; rather, it takes a national approach and focuses on the ABA Model Rules. Of course, lawyers practicing in a particular state should become familiar with the provisions of that state s ethical rules. 3
addressing the role of counsel in litigation generally, the court stated that [c]ounsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched. Specifically, the court concluded that attorneys not just their clients are obligated to ensure that relevant documents are discovered, retained, and produced. This compliance burden placed on lawyers can give rise to tension and in some instances, potential ethical concerns around the relationship between lawyer and client, particularly when the lawyer has concerns that his client may not be following directions and advice from counsel regarding the preservation of information. In an extreme situation, where a lawyer has knowledge that his client is failing to preserve relevant evidence and the client refuses to take steps to correct the problem, termination of the relationship consistent with ABA Model Rule 1.16 ( Declining or Terminating Representation ) may become necessary. III. Meeting and Conferring on E-Discovery Issues A. Introduction: The Meet and Confer Process Federal Rule of Civil Procedure 26(f)(2) (and a number of equivalent or similar state rules of procedure) requires that, at the outset of discovery, parties discuss issues about preserving discoverable information and develop a proposed discovery plan. FRCP 26(f)(3) explains that this discovery plan must include issues about the disclosure or discovery of electronically stored information, including the form or forms in which it should be produced. It further requires that the parties state their views on any issues around claims of privilege, whether the parties agree on a procedure to assert those claims, and whether to ask the court to include their agreement in an order. Consistent with the Federal Rules requirement, The Sedona Principles advise that parties should confer early in discovery regarding the preservation and production of electronic data and documents when these matters are at issue in the litigation, and seek to agree on the scope of each party s rights and responsibilities. The Sedona Principles, Principle 3. A useful resource in this regard is the Suggested Protocol for Discovery of Electronically Stored Information, issued by the U.S. District Court for the District of Maryland, which provides a comprehensive list of topics on which parties should consider reaching agreement at their meet-and-confer sessions. B. Ethical Implications that Arise During Meet-and-Confer Sessions 1. Resolving the need for transparency and cooperation in the meet-and-confer process with the lawyer s duty to be a diligent and zealous advocate: Some lawyers have argued that the transparency and cooperation that are arguably necessary to effectively discuss and reach agreement on e-discovery issues are in conflict with a lawyer s duty to be a diligent and zealous advocate. See ABA Model Rules Preamble, Para. [2] ( As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system. ); ABA Model Rule 1.3 ( Diligence ), Comment 4
[1] ( A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf. ). Yet Comment [1] to Rule 3.4 ( Fairness to Opposing Party and Counsel ) explains that [t]he procedure of the adversary system contemplates that the evidence in a case is to be marshalled competitively by the contending parties. Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like. So, while competition is inherent in the adversary system, such competition must be fair, and obstreperous tactics in discovery including a hide the ball approach to e-discovery are not consistent with a lawyer s duty to act fairly. Also, Model Rule 3.2 ( Expediting Litigation ) provides that a lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client, which may require the lawyer to engage in cooperation with opposing counsel on discovery issues. For an excellent and in-depth treatment of this issue, please refer to The Sedona Conference Cooperation Proclamation, 10 Supp. Sedona Conf. J. 331 (2009), and the accompanying publication The Case for Cooperation, id. 339. For practical guidance on how to achieve this level of cooperation consistent with ethical obligations, see The Sedona Conference Cooperation Guidance for Litigators & In-House Counsel (March 2011), and The Sedona Conference Cooperation Proclamation: Resources For The Judiciary (August 2011). 2. Balancing fairness to the opposing side and candor to the court with protection of confidential information: Effectively meeting and conferring on e-discovery issues requires that parties be fair and truthful with each other, and in the event of a dispute over an e-discovery issue, candid with the court. The subjects of such candor might include, for example, a description of what ESI has not been preserved, or has been inadvertently lost or destroyed; in what systems and on what media ESI is stored; whether a particular source of ESI is reasonably accessible; and to what expense a litigant is willing to go to process and produce ESI before asserting an objection of undue burden. This fairness and candor to opposing parties and the court is required by ABA Model Rule 3.3 ( Candor Toward the Tribunal ); ABA Model Rule 8.4(a)(4) ( Misconduct ) ( It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation ); and ABA Model Rule 3.4 ( Fairness to Opposing Party and Counsel ). Yet the required candor must be balanced with the duty to preserve confidential information, which is prescribed by ABA Model Rule 1.6 ( Confidentiality of Information ). That rule provides that [a] lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation See also ABA Model Rule 1.6, Comment [16] ( A lawyer must act competently to safeguard information 5
relating to disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer s supervision. ). The comments to ABA Model Rule 3.3 recognize the need to strike this balance, explaining that [t]he advocate's task is to present the client's case with persuasive force. Performance of that duty while maintaining confidences of the client is qualified by the advocate's duty of candor to the tribunal. Rule 3.3, Comment [2]. IV. Reviewing and Producing Relevant, Discoverable Electronically Stored Information A. Managing document productions involving large volumes of documents When document production requires a review and assessment of large volumes of documents which in our information age includes virtually every document production attorneys responsible for the matter must take care to consider several ethical issues that crop up in connection with such productions. They must (1) adequately supervise the personnel conducting the review; (2) take reasonable steps to prevent disclosure of confidential and privileged information (and possible waiver of privilege), including such information found embedded in metadata; and (3) give adequate consideration to keeping costs and fees reasonable. 1. Adequately supervising document reviewers: In August of 2008, the ABA issued Formal Opinion 08-451, addressing an attorney s obligations when outsourcing legal support services, such as when a lawyer hires contract personnel to conduct document review in cases involving voluminous documents. See Formal Opinion 08-451 August 5, 2008, Lawyer s Obligations When Outsourcing Legal and Nonlegal Support Services. This Opinion explains that there is nothing unethical about a lawyer outsourcing legal and nonlegal services, provided the outsourcing lawyer renders legal services to the client with the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation, as required by Rule 1.1. Thus, it is ethically permissible and often most practical for lawyers to outsource document review to others. 2 2 The ABA Commission on Ethics 20/20 has proposed new comments to Rule 1.1 specifically to address outsourcing. If adopted, these comments would read as follows: [6] Before a lawyer retains or contracts with other lawyers outside the lawyer s own firm to provide or assist in the provision of legal services to a client, the lawyer should ordinarily obtain informed consent from the client and must reasonably believe that the other lawyers services will contribute to the competent and ethical representation of the client. See also Rules 1.2 (allocation of authority), 1.4 (communication with client), 1.5(e) (fee sharing), 1.6 (confidentiality), and 5.5(a) (unauthorized practice of law). The reasonableness of the decision to retain or contract with other lawyers outside the lawyer s own firm will depend upon the circumstances, including the education, experience and reputation of the nonfirm lawyers; the nature of the services assigned to the nonfirm lawyers; and the legal protections, professional conduct rules, and ethical environments of the jurisdictions in which the services will be performed, particularly relating to confidential information. When using the services of nonfirm lawyers 6
In addition to complying with the competence requirement of ABA Model Rule 1.1, the supervising attorney must comply with Rules 5.1 and 5.3, which address a lawyer s duty to adequately supervise those persons working under her direction. These rules encompass not only substantive supervision, but also ethical supervision. With respect the supervision of ethical requirements, Rule 5.1(b) provides that lawyers who choose to employ the services of outsourced attorneys to conduct document review must make reasonable efforts to ensure that the reviewing lawyers conform to the applicable rules of professional conduct. If an attorney retains nonlawyers to work on document review projects, Rule 5.3(b) requires reasonable efforts to ensure that the nonlawyers conduct is compatible with the professional obligations of the lawyer. Of course, when retaining non-lawyers especially in the context of document review outsourcing attorneys should take care to avoid facilitating the unauthorized practice of law. See ABA Model Rule 5.5 ( Unauthorized Practice of Law ). With respect to the substantive supervision of document review work by outsourced personnel, Rules 5.1 and 5.3 dictate that the outsourcing lawyer must take care that tasks are delegated to individuals who are competent to perform them, and oversee the execution of the project adequately and appropriately. Opinion 08-451, p. 3. This oversight may be complicated, and involve several layers of supervision, depending on the particular structure put in place. For example, the highest-level supervising lawyer may be a law firm partner who directs the hiring of contract lawyers to review documents, and who assigns an associate to manage the reviewers; or maybe the partner retains a third party review provider who hires and directly manages the reviewers, subject to the oversight and supervision of attorneys at the law firm; or maybe the in-house counsel responsible for the litigation hires contract lawyers to perform the review and instructs its law firm counsel to supervise the contract team. In each of these scenarios, every lawyer involved in the project including in-house counsel bears his or her own independent ethical duty to adequately supervise the work being performed at their direction. Supervising work done in a physical location separate from where the supervising lawyer is located presents particular challenges. As the Opinion cautions, When delegating tasks to lawyers in remote locations, the physical separation between the outsourcing lawyer and those performing the work can be thousands of miles, with a time difference of several hours further complicating direct in providing legal services to a client, a lawyer also must reasonably believe that such services meet the standard of competence under this Rule. [7] Where the client has chosen or suggested lawyers from other law firms to assist in the provision of legal services to the client on a particular matter, the law firms who will be assisting the client on that matter should consult with each other and the client about the allocation or scope of representation and responsibility, including the allocation of responsibility for monitoring and supervision of any nonfirm nonlawyers who will be working on the client s matter. See Rules 1.2 and 5.3. When making allocations of responsibility in a matter pending before a tribunal, lawyers and parties may have additional obligations that are a matter of law beyond the scope of these Rules. ABA Commission on Ethics 20/20 Revised Proposal Outsourcing, September 19, 2011. 7
contact. Electronic communication can close this gap somewhat, but may not be sufficient to allow the lawyer to monitor the work of the lawyers and non-lawyers working for her in an effective manner. Id. When outsourcing of document review involves work done by lawyers trained in a foreign country, the outsourcing lawyer first should assess whether the system of legal education under which the lawyers were trained is comparable to that in the United States, and if there are reservations about the quality of the legal training, the outsourcing lawyer should give close scrutiny to the work done by the foreign lawyers, perhaps viewing them as nonlawyers before relying upon their work. Id. at 3-4. Whether engaging lawyers or nonlawyers to assist with document review, the supervising attorney should advise her client of the work that is intended to be outsourced. Id. at 4-5. Additionally, where there is a possibility that client confidential information may be revealed in the document review, the supervising attorney must obtain client consent before sharing data with any members of the outsourced team. Id. at 5. 2. Protecting confidential and privileged information: In the context of a document review project, the supervising attorney and those working under her direction are bound by the ethical duty of confidentiality. ABA Model Rule 1.6. As Comment [16] to that rule reads, A lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer s supervision. 3 This rule is implicated in several aspects of document review. First, a supervising lawyer must take reasonable steps to prevent personnel hired to work on document review from inadvertently or perhaps even intentionally disclosing client confidential information to persons who are not entitled to access. As Opinion 08-451 advises, written confidentiality agreements are, therefore, strongly advisable in outsourcing relationships. Second, lawyers managing document review projects should also give consideration to the physical and data security of the review facility, and take steps to prevent breaches of confidentiality. Similarly, lawyers should assess whether the particular technologies being used to conduct the review create security risks around the confidentiality of client information, and take steps to address those risks. Proposed changes to comment [16] of Rule 1.6 would set out specific factors to consider when making this assessment: the sensitivity of the information, the likelihood of disclosure 3 The ABA Commission on Ethics 20/20 has proposed a new paragraph of Model Rule 1.6 that would incorporate the substance of this comment into the actual rule. If adopted, a new paragraph (c) of Rule 1.6 would read: A lawyer shall make reasonable efforts to prevent the inadvertent disclosure of, or unauthorized access to, information relating to the representation of a client. See ABA Commission on Ethics 20/20 Revised Proposal Technology and Confidentiality, September 19, 2011. 8
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). See also The State Bar of California Standing Committee on Professional Responsibility and Conduct, Formal Opinion No. 2010-179 ( Before using a particular technology in the course of representing a client, an attorney must take appropriate steps to evaluate: 1) the level of security attendant to the use of that technology, including whether reasonable precautions may be taken when using the technology to increase the level of security; 2) the legal ramifications to a third party who intercepts, accesses or exceeds authorized use of the electronic information; 3) the degree of sensitivity of the information; 4) the possible impact on the client of an inadvertent disclosure of privileged or confidential information or work product; 5) the urgency of the situation; and 6) the client s instructions and circumstances, such as access by others to the client s devices and communications. ). Third, a lawyer must incorporate reasonable measures in the document review process to prevent the accidental disclosure of confidential or privileged information in the production of documents to the opposing party. It is therefore incumbent upon lawyers managing electronic document reviews to understand common technical issues that may lead to such inadvertent disclosures. With respect to the inadvertent disclosure of privileged information, Federal Rule of Evidence 502 provides that such disclosure will not result in a waiver if reasonable steps were taken to prevent and promptly rectify the disclosure. According to the legislative history of that rule, [d]epending on the circumstances, a party that uses advanced analytical software applications and linguistic tools in screening for privilege and work product may be found to have taken reasonable steps to prevent inadvertent disclosure. 110 Cong. Rec. S1318 (daily ed. Feb. 28, 2008) (statement of Sen. Leahy). Conversely, if a lawyer fails to employ the technological tools and resources at her disposal to prevent the production of privileged material, an inadvertent disclosure might constitute not only a waiver of the privilege, but also a violation of ABA Model Rule 1.6. 3. Respecting the Privilege and Confidentiality Rights of the Opposing Party In addition to the duty to protect her own client s confidential and privileged information, a lawyer engaged in document discovery must also respect the rights of the opposing party if it inadvertently produces privileged information. Model Rule 4.4 ( Respect for Rights of Third Parties ) directs that A lawyer who receives a document or electronically stored information relating to the representation of the lawyer s client and knows or reasonably should know that the document or electronically stored information was not intended to be disclosed to the lawyer shall promptly notify the sender. See also Fed. R. Civ. P. 26(b)(5)(B). Once that notification is provided, the parties can then work through the appropriate process (referring to Fed. R. Evid. 502 or an applicable state law equivalent, and/or the parties agreed-upon protective order) to determine the consequences of the inadvertent production. 9
4. Charging reasonable legal fees: According to one fairly recent study, more than one fourth of outside counsel legal fees in litigation are spent on document review. See Litigation Cost Survey of Major Companies, Statement Submitted by Lawyers for Civil Justice, Civil Justice Reform Group, U.S. Chamber Institute for Legal Reform, For Presentation to Committee on Rules of Practice and Procedure Judicial Conference of the United States, 2010 Conference on Civil Litigation, Duke Law School, May 10 & 11, 2010. These legal costs are likely to go even higher as more and more electronic documents are created every year, and are subject to collection, review and production in litigation. It is therefore incumbent upon lawyers to find ways to make the fees associated with document review reasonable, which is an ethical duty imposed by ABA Model Rule 1.5 ( Fees ) ( A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. ). Thus, not only is the use of outsourcing arrangements for document review permitted by the rules of professional conduct, but a lawyer may be ethically required to at least consider such an arrangement and inform his client of the option, if it is the only means of achieving a reasonable fee for the work. As ABA Formal Opinion 08-451 notes (p. 2), [o]utsourcing affords lawyers the ability to reduce their costs and often the cost to the client to the extent that the individuals or entities providing the outsourced services can do so at lower rates than the lawyer s own staff. This fact presents a potential ethical quandary for a lawyer if hiring outsourced document review services would be less expensive than having the lawyer s own staff conduct the document review, is the lawyer required to inform the client of this option and possibly forego the revenue and profit associated with the work if the client elects to use the outsourcing solution? Certainly the rules of professional conduct do not require a lawyer in every instance to select the least expensive option for getting his client s work done, but there may be instances in the context of e-discovery where a lawyer s ethical duties may require him to consider alternative means of accomplishing the very expensive task of document review. B. Paying Sufficient Attention to Metadata A specific, and thorny, ethical issue around the inadvertent disclosure of confidential or privileged information in the context of a document production concerns metadata. Metadata is defined as data typically stored electronically that describes characteristics of ESI, found in different places in different forms Metadata can describe how, when, and by whom ESI was collected, created, accessed, modified, and how it is formatted Some metadata, such as file dates and sizes, can easily be seen by users; other metadata can be hidden or embedded and unavailable to computer users who are not technically adept. The Sedona Conference Glossary: E-Discovery & Digital Information Management (Third Ed., September 2010) (available for download at www.thesedonaconference.org). 10
Metadata that is not readily visible to lawyers who are not technically adept presents a possible ethical landmine. Information found in metadata typically includes mundane data such as dates of creation or editing, sender and recipient information, and file properties. But metadata can also include more substantive information such as embedded comments, modifications and other material that could potentially be sensitive, confidential or even subject to a claim of attorney-client and/or work-product privilege. The ethical rules governing the protection of confidential information and the attorney-client privilege require that lawyers dealing with the production of ESI become sufficiently competent in working with the electronic information or hire others who are to determine whether such information is embedded in metadata and to prevent the information from being produced to the other side. See ABA Model Rule 1.1. C. Acting fairly and with candor regarding the scope of ESI discovery Attorneys producing electronic documents must understand what sources of ESI are being searched and produced; but they must also understand, and be candid and fair about, what will not be searched or produced. Certain sources of ESI will not always be collected or searched, and certain ESI may be excluded from review and production. This may be the case because, in the opinion of the producing party, the ESI is not relevant or is outside the scope of the litigation. It may be that the ESI is subject to a claim of not readily accessible under Federal Rule of Civil Procedure 26(b)(2)(B). In these and other similar instances, ABA Model Rules 3.3, 3.4, and 8.4 require that counsel must be candid with the opposing side and with the court about what is not being searched, and about the grounds for a claim of not-reasonably-accessible. Hidethe-ball tactics around ESI discovery are inconsistent with a lawyer s ethical duties. V. Employing Software Tools in E-Discovery In connection with the discovery of ESI, litigants have at their disposal thousands of commercially available software tools. Such software products help parties preserve potentially relevant electronic evidence; collect and process potentially relevant and responsive ESI; and cull, filter, index, search, organize, and analyze the larger universe of potentially relevant documents to come up with a smaller subset of documents eligible for production. These software tools, when used effectively, can be an easier, faster, cheaper, and more accurate way to preserve, find, and produce the electronic documents that are truly relevant to a matter. But no matter how the software products are used whether archiving e-mail subject to a legal hold, using date filters to eliminate certain documents from a collection, drafting strings of keyword searches to find relevant documents, or deploying cutting-edge automated review or linguistic analysis technologies to arrive at a set of documents destined for production counsel should be aware of the ethical issues surrounding the use of these e-discovery tools. A. Employing e-discovery tools competently A lawyer s duty of competence under ABA Model Rule 1.1 extends to all aspects of her legal practice, and requires her to gain the expertise necessary to handle a matter or, 11
when the needed expertise cannot readily be acquired, associate with other lawyers or nonlawyers. For many lawyers, the use of e-discovery software tools is an area in which they do not have and cannot readily gain the necessary expertise, and must engage with persons who have such expertise. 4 Many lawyers do not possess the expertise necessary to effectively and accurately employ the variety of e-discovery tools available on the market, and could not easily acquire such expertise. The difficulty in gaining e-discovery expertise typically flows from the inherently technical nature of these analytical tools and the relative lack of technical ability of many lawyers. But even technically savvy lawyers can be tripped up by the large number of e-discovery tools to choose from, and the (often unintended) consequences of the many decisions that must be made about the implementation of each tool. Even keyword searching one of the most frequently used and seemingly simplest tools used in the review and production of ESI can be a trap for the unwary lawyer, due to the inherent limitations of keyword searching, the difficulty of drafting effective search term strings in complex matters, and the inadvertent mistakes that can be made when crafting searches using the different search engines associated with various tools. Counsel should be extremely careful not to assume they are competent under ABA Model Rule 1.1 to use any e-discovery tool, even those that may seem easy. Lack of sufficient e-discovery competence also will make it difficult to prepare a documented, defensible approach to discovery, especially if counsel does not fully understand the nuances of the sophisticated tools she is using to identify potentially relevant documents for production, or to screen out those documents not eligible for production (because they are not relevant, or because they are subject to a claim of privilege or some other grounds for withholding). Lawyers should remember that, even where e-discovery tools are used to help determine which documents may be relevant and responsive, the certification of completeness of production under Federal Rule of Civil Procedure 26(g) ultimately is the lawyer s responsibility. Accordingly, lawyers must have a sufficient understanding of any technology employed to be able to sign discovery responses in good faith. B. Disclosing the use of e-discovery tools In an effort to more efficiently manage what is typically a huge universe of potentially relevant ESI, many litigants employ filtering, indexing, searching, and other analytical tools to find the smaller subset of actually relevant and discoverable information. When a party chooses to use such tools analytical in connection with the production of documents in discovery, do the ABA Model Rules ethically obligate the party to disclose the use of such tools, either in the meet-and-confer sessions or later in 4 The ABA Commission on Ethics 20/20 has proposed an addition to Comment [6] to Model Rule 1.1 that would specifically address competence in the use of technology. The revised comment, if adopted, would read: 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 technology... See ABA Commission on Ethics 20/20 Revised Proposal Technology and Confidentiality, September 19, 2011. 12
the discovery process? The best practice, of course, is that parties should disclose and reach agreement on the methods they will use to locate relevant and responsive information, so that challenges to those methods and disputes about the output of the tools can be avoided. However, whether a party must disclose the use of analytical tools under the rules of professional conduct will depend on the particular facts of each matter. If the failure to disclosure the use of such tools could, under the circumstances, be considered unfair to opposing party, or create a misrepresentation about the discovery process, then the tools must be disclosed under ABA Model Rules 3.4 and 8.4(a)(4). Similarly, in the context of a dispute about the discovery process submitted to the court for resolution, failure to inform the court that analytical tools were used could potentially violate ABA Model Rule 3.3. VI. Accessing Information From Social Media Websites for Use in Discovery Ethical concerns related to lawyers retrieval of information from social networking websites for potential use in discovery has garnered significant attention recently, although the ABA has not yet rendered an opinion on the subject. However, several state and local bar association opinions, along with commentary in the e- discovery community, provide some guidance for best practices on several different ethical issues. A. Communicating with represented parties through social media websites Attempts by a lawyer or her agent to access social media information might run afoul of ABA Model Rule 4.2 ( Communication with Person Represented by Counsel ), which forbids a lawyer from communicating about a matter with a person the lawyer knows to be represented by another lawyer in the matter. If the attorney must interact with the represented party to gain access to the social media site for example, if the lawyer must send a friend request to an opponent represented by counsel to access the opponent s Facebook page such web-based interaction would be a communication prohibited by ABA Model Rule 4.2. See San Diego County Bar Association (SDCBA) Legal Ethics Opinion 2011-2 (May 2011) ( An attorney s ex parte communication to a represented party intended to elicit information about the subject matter of the representation is impermissible no matter what words are used in the communication and no matter how that communication is transmitted to the represented party. ); Oregon State Bar Association Opinion No. 2005-164 (August 2005) ( communications via the Internet are directly analogous to traditional written communications). But if the represented opponent s social media site is publicly accessible, like an ordinary webpage, an attorney for the opposing party may ethically access the site. See SDCBA Legal Ethics Opinion 2011-2 ( Nothing blocks an attorney from accessing a represented party s public Facebook page. ); New York State Bar Association Opinion 843 (Sept. 2010) (a lawyer may ethically view and access the [social network sites] of a party other than the lawyer s client in litigation as long as the party s [site] is available to 13
all members in the network and the lawyer neither friends the other party nor directs someone else to do so ); Oregon State Bar Association Opinion No. 2005-164 (a lawyer is permitted to access the public website of an opponent represented by counsel; in that instance, the attorney would simply be reading information posted for general public consumption... not communicating with the represented owner of the website ). B. Gaining access to private information on social media websites If information from social media websites is potentially relevant to litigation, attorneys and their agents must refrain from using self-help methods of obtaining such information under false pretenses. Opinions on the permissibility of gathering information from social media sites generally focus on the method used for retrieval and whether the information can be considered publicly available. For example, in 2010, the New York City Bar Association (NYCBA) Committee on Professional Ethics responded to the question of whether a lawyer or her agent could use deception to gain access to information on a non-party s social media site. The NYCBA rendered an opinion warning against such predatory friending, stating that, A lawyer may not attempt to gain access to a social networking website under false pretences, either directly or through an agent. Association of the Bar of the City of New York, Formal Opinion 2010-2; see also Philadelphia Bar Association Professional Guidance Committee, Opinion 2009-02. Use of trickery to gain access to an individual s social media network would implicate ABA Model Rule 8.4(a)(4), prohibiting a lawyer from engaging in conduct involving dishonesty, fraud deceit or misrepresentation and ABA Model Rule 4.1(a) ( Truthfulness in Statements to Others ), which calls for attorneys to refrain from making a false statement of material fact to a third person. However, there is no consensus yet on whether a lawyer must affirmatively disclose the reasons for seeking social media information. According to NYCBA Formal Opinion 2010-02, so long as the lawyer does not make any misrepresentations when seeking access to social media information, she is not required to disclose the reasons for her inquiry. But the Philadelphia and San Diego County Bar Associations disagree, opining that legal ethics require an attorney to make a full disclosure of her motive for making a friend request. See SDCBA Legal Ethics Opinion 2011-2 ( the attorney s duty not to deceive prohibits him from making a friend request even of unrepresented witnesses without disclosing the purpose of the request ); Professional Guidance Committee Opinion 2009-02. ABA Model Rule 4.3 ( Dealing With Unrepresented Person ) states that [i]n dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. Arguably, this rule requires that a lawyer seeking social media information on behalf of a client must disclose the reasons for the request, so as not to imply that the lawyer is disinterested. C. Accessing publicly available information on social media websites If information on web sites is publicly available, it seems that such information is fair game in litigation, even if obtained outside the formal discovery process. For 14
instance, the New York State Bar Association, in Opinion 843 (2010), addressed whether attorneys could access publicly visible portions of another party s social media account. The Committee found that a lawyer could ethically do so, reasoning that the information contained in the public portions of a social media site is akin to publicly available information on non-social-media websites. The Committee noted that searching for such public data is no different than typing a person's name into an internet search engine, searching print media sources, or conducting research on paid subscription services like LexisNexis or Bloomberg. With this in mind, attorneys should counsel their clients to give attention to their privacy settings on publicly accessible websites, and advise them of the risk that information posted on these sites could be mined and used against them in litigation. VII. Conclusion Dealing with ESI in discovery can create a number of potential ethical dilemmas for lawyers. Perhaps the most important ethical principle to keep in mind is the duty to act competently e-discovery presents the average litigator with a host of technical challenges that most lawyers can handle competently only if they associate with qualified experts. Another important consideration is the need for cooperation, transparency, and fairness in all aspects of e-discovery; courts are now routinely demanding this approach from litigants, and sophisticated practitioners expect this approach from their adversaries. By adopting that approach to e-discovery, lawyers can more effectively carry out their ethical duties to their clients, their opponents, and the courts. About the Author Maureen O Neill is Senior Vice President, Employment Law Practice Group, at DiscoverReady. She also serves as the Marketplace Leader for DiscoverReady s Western region. Maureen provides operational expertise in managed document review and other e-discovery service offerings, and she leads all aspects of DiscoverReady s marketplace presence in the Western United States. Prior to joining DiscoverReady, Maureen was a partner at Paul, Hastings, Janofsky & Walker LLP. She represented Fortune 100 and other multinational companies in a variety of industries in employment-related litigation. Although she participated in all aspects of litigation, Maureen developed a particular expertise in managing the document discovery process in complex, multi-party cases. In addition to her employment litigation practice, Maureen also co-chaired the Firm s E-Discovery Practice Group. In that role, she counseled clients on various e-discovery issues, such as identifying and inventorying sources of electronic information, drafting legal hold notices, and developing protocols for document collection, storage, and management. She also helped develop best practices for litigators engaged in e-discovery practice. 15
Maureen is admitted to practice in California and Georgia. She participates actively in the Sedona Conference Working Group on Electronic Document Retention and Production. 16