[author: Helen Geib]
The four root causes of eDiscovery misconduct are: 1) a general lack of technical sophistication; 2) over-zealous advocacy; 3) neglecting client communication and other professional duties in the case; and 4) legal incompetence. The most egregious offenses usually fall under causes two through four. Sadly the more typical eDiscovery failures that make up most misconduct stem from lawyers’ technological incompetence.
That was the starting point of the ethics and eDiscovery presentation at the Indianapolis Bar Association eDiscovery Day 2018. The all-day program also included a complementary presentation on sanctions law.
Competence is the fundamental ethical duty for lawyers. Both presentations cited the now famous 2015 California ethics opinion as an invaluable resource for understanding competence in the context of eDiscovery. The opinion was both controversial and influential in calling out ESI management as a core ethical responsibility for all litigators.
Helpfully, the opinion lists specific requirements for competence at each stage of the EDRM lifecycle. At the outset of the case are initial matter assessment, implementing a preservation plan and custodian identification. Some of the explicitly technology-focused requirements are analyzing the client’s systems and storage, using defensible collection methodology and producing ESI in an appropriate format. Advising the client on eDiscovery legal obligations and technology options is an overarching requirement at all stages.
Guna Rogers of Beckman Coulter shared the in-house perspective on eDiscovery competence in her presentation on sanctions law. Corporate clients want outside counsel to follow the rules. The corporate client’s desired outcome is a satisfactory business resolution at the lowest reasonable cost. Ethical conduct helps achieve this objective.
Jon Mattingly of Mattingly Burke Cohen & Biederman LLP presented the ethics session. He devoted considerable time to preservation, an acute and chronic problem area. He stressed that the duty to preserve is an active, not passive obligation. Effective preservation is based on thorough identification and a good discovery plan.
Unfortunately the courts have not provided consistent guidance in interpreting amended Rule 37(e). Basically the case law is all over the map in analyzing the requirements for sanctions. However, there are guideposts.
First, intentional spoliation is always a bad fact in front of the judge. The second guidepost is a practice pointer arising from the duty to take reasonable steps to preserve relevant information. Good documentation is needed to respond to allegations of spoliation or other preservation challenges. It’s critical to contemporaneously document the preservation effort in detail. Finally, other discovery misconduct like misrepresentations to the court sharply increases the likelihood of sanctions.
The sanctions presentation reinforced and expanded on that last point. While sanctions have sometimes been imposed for a single event, there’s usually a pattern of abuse or failure. Judges’ warnings must be taken seriously. In the big picture of the case, judicial displeasure is clear direction that the discovery strategy is not working and a course change is in order.
This leads to another key point emphasized by both presenters: Judges don’t enjoy discovery. They want to see a good faith effort to resolve discovery disputes, or at least to clarify and narrow the issues, before coming to court. Cooperation among parties will win points with the judge.
A competent and meaningful meet and confer with opposing counsel on the discovery plan is one of the requirements specified by the CA ethics opinion. The principle clearly extends to discovery disputes. Moreover corporate clients expect reasonable cooperation because it keeps costs down.
The ethics presentation ended with a cautionary word about shifting responsibility to law firm staff and service providers. Seeking assistance from knowledgeable technology and eDiscovery consultants is strongly encouraged. But it’s not a substitute for staying involved and giving appropriate and timely instructions.
Ultimate responsibility for the conduct of the eDiscovery matter rests with counsel, not legal support staff. The duty to supervise extends to non-lawyers outside the firm, such as eDiscovery providers and the client’s employees tasked with litigation support. Lawyers must be familiar with eDiscovery basics to provide adequate supervision and competent decision-making.
Lawyers have an ethical duty to provide competent representation to their clients. For litigators, that includes competence in the always-evolving area of eDiscovery law and technology. Continuing legal education by bar associations and eDiscovery professional organizations like ACEDS isn’t a nice extra. It’s a necessary resource for lawyers and the eDiscovery professionals who support them.