By: John A. Greenhall, Anthony L. Byler, and Kathleen M. Morley
Attorneys are bound by developing ethical rules and duties relating to e-discovery. These rules and duties deserve emphasis because courts, and clients, are increasingly concerned about the manner in which attorneys conduct discovery and, particularly, e-discovery. Heightened court willingness to sanction parties and their counsel for improper e-discovery adds yet another reason for practitioners to remain current on evolving e-discovery obligations.
While legal experts and futurists have long heralded the efficiencies and cost savings of embracing technological advancements in the legal practice, in recent years, attorneys have been given another reason to stay current on technological changes and advancements impacting their practice—the ethical requirement to do so. In 2012, the American Bar Association (ABA) amended Rule 1.1 of the Model Rules of Professional Conduct (Model Rules). This rule sets forth the general duty of competence. The 2012 amendments included adding the following italicized language to Comment 8 to this rule: “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.”
Today, the majority of states have adopted rules requiring that attorneys have and maintain knowledge and skill concerning technology relevant to their practice as part of their duty to provide competent representation to clients. Pennsylvania and Delaware, along with many other states, have adopted the revised Comment 8 to Rule 1.1 in the same form as the Model Rules. Despite this, there is concern about a lack of emphasis and understanding of counsel’s ethical requirement to be competent in e-discovery and judges are reporting serious concerns about attorneys’ abilities and competence when it comes to e-discovery.
In its landmark ethics opinion in 2015, the State Bar of California Standing Committee on Professional Responsibility and Conduct specifically addressed an attorney’s ethical duties in the handling of e-discovery. According to the California Standing Committee, the duty of competence requires an attorney to assess at the outset of each case the electronic discovery issues that might arise during the litigation and his or her own e-discovery skills and resources. The State Bar of California Standing Committee on Professional Responsibility and Conduct, Formal Opinion No. 2015-193. The committee outlined nine areas that attorneys are to be able to perform to ethically represent a client in a matter involving e-discovery:
- Initially assess e-discovery needs and issues;
- Implement or cause to implement appropriate electronically stored information (ESI) preservation procedures;
- Analyze and understand a client’s ESI systems and storage;
- Advise the client on available options for collection and preservation of ESI;
- Identify custodians of potentially relevant ESI;
- Engage in a competent and meaningful meet-and-confer with opposing counsel concerning an e-discovery plan;
- Perform data searches;
- Collect responsive ESI in a manner that preserves the integrity of that ESI; and
- Produce responsive nonprivileged ESI in a recognized and appropriate manner.
The California Standing Committee concluded that an attorney lacking the required competence has three options:
- Acquire sufficient learning and skill before performance is required;
- Associate with or consult technical consultants or competent counsel; or
- Decline the client representation.
Thus, in the opinion of the California Standing Committee, an attorney lacking the necessary competence to handle a matter’s e-discovery needs should decline the representation if he cannot acquire the competence or associate with consultants or counsel who possess the necessary competence.
While every case and jurisdiction is different, and this area of law and ethics is far from settled and anything but static, decisions such as the California Standing Committee’s influence and shape emerging professional duties. This process of evolution has identified general themes and best practices for competent e-discovery in the context of preservation, searching and supervision.
Parties are obligated to preserve relevant, discoverable information when they reasonably anticipate litigation, which has been extended to include the preservation of ESI. The Federal Rules of Civil Procedure (FRCP) require parties to take steps to preserve relevant ESI and provide for the imposition of sanctions to remedy the loss of ESI. Fed. R. Civ. P. 37(e). Failure to preserve relevant ESI could be challenged as spoliation of evidence and a violation of counsel’s duty of competence. Under FRCP 37(e)(2), sanctions available to remedy the loss of ESI include adverse inferences or even the dismissal of an action or the entry of default judgment if a party is found to have acted with the intent to deprive another party of the information’s use. Additionally, under FRCP 37(a)(5)(A), a party and its counsel are subject to sanctions and can be ordered to pay a moving party’s attorneys’ fees and expenses for evasive or incomplete discovery disclosures, answers or responses.
While there is some disagreement among courts as to whether failure to issue a written litigation hold letter to one’s client is negligent per se, best practices in e-discovery dictate the issuance of a written litigation hold letter including language directing the suspension of any automatic deletion functions. Further, counsel’s preservation obligations do not end after sending a hold letter. Counsel is responsible for monitoring compliance with the hold and cannot accept a client’s statements at face value and, instead, must be proactive in overseeing and ensuring compliance and preservation. Courts have imposed sanctions and found counsel to be negligent in circumstances where counsel relied on a client’s unsupervised preservation decisions.
Searching data for responsiveness, once collected and preserved, is a complex and challenging task in a case with a substantial volume of ESI. It is of critical importance that counsel competently executes electronic searches of data sets. Search methodologies have to be defensible and competent attorneys must optimize search capabilities and employ search tools best suited to the specific needs and circumstances of the case.
Keyword searching can be a particular source of incompetence. While keyword searches are still utilized and can be helpful for ESI searching and retrieval, the most important thing to know and understand about keyword searches is the recognized limitations and risks associated with them. The effectiveness of keyword searches depends on the selection and implementation of them, which involves technical knowledge.
Computer-assisted review, or predictive coding, has received increasing attention in recent years. Following the decision of Moore v. Publicis Groupe, 287 F.R.D 182 (S.D.N.Y. 2012), the first federal opinion approving the use of computer-assisted review, other cases and courts have followed with general approval of such methods, with some encouraging their use. The court in Moore clarified that its decision in that case did not mean that computer-assisted review had to be used in all cases or that the particular protocol utilized in that case would be appropriate in others. To the contrary, the court advised that the take-away should be that “computer-assisted review is an available tool and should be seriously considered for use in large-data-volume cases where it may save the producing party (or both parties) significant amounts of legal fees in document review.” The court went on to state that “as with keywords or any other technological solution to e-discovery, counsel must design an appropriate process, including use of available technology, with appropriate quality control testing, to review and produce relevant ESI.” Attorneys who are unable to understand basic concepts, tools and methodologies for search and review may be unable to satisfy their duties to clients and courts, particularly as technologies continue to progress and data volumes continue to increase.
The duty of competence also includes the duty to supervise. Under Rule 5.3 of the Model Rules, a lawyer using nonlawyers outside of his firm to assist in rendering legal services to a client “must make reasonable efforts to ensure that the services are provided in a manner that is compatible with the lawyer’s professional obligations.” Pennsylvania and New Jersey have adopted this rule and include the cited language in their comments to the same. This would apply to outside review companies or e-discovery vendors utilized to assist with document review. Failing to provide adequate training, oversight, and quality control of e-discovery vendors or document reviewers can result in preservation and production errors and undermine counsel’s duty to provide competent representation. Enlisting the services of an outside vendor to assist in review or coding does not discharge an attorney’s obligation to provide competent representation. Attorneys must take steps to ensure the reasonable accuracy of reviewers’ work through adequate oversight and quality control measures. There are well-publicized cases of e-discovery malpractice lawsuits against law firms arising at least in part from vendor errors.
As the examples above illustrate, it is important for attorneys to understand their evolving ethical duties and duties of competence, including how those are changing and expanding in the face of technological changes and advancements in e-discovery.
Reprinted with permission from the February 6, 2018 edition of “The Legal Intelligencer” © 2018 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, firstname.lastname@example.org or visit www.almreprints.com.