Lawyers have specific duties with regard to e-discovery

Article by James Bernard, Michael Quartararo and Jason Vinokur

What are an attorney’s ethical obligations in e-discovery? This article lays out the responsibilities attorneys have when it comes to e-discovery.

Duty to Preserve ESI
Both in-house and outside counsel have an obligation to preserve documents relevant to a claim or defense that may lead to admissible evidence in the litigation. Counsel must make a reasonable inquiry, identify potentially relevant materials on a company’s systems and preserve those materials both: 1.) through physical sequestration of the discoverable material, including suspension of auto-deletion, backup tape rotation and record destruction policies, and 2.) by implementation of a litigation hold on the key custodians and information management personnel when litigation becomes reasonably anticipated. Few areas of electronically storied information (ESI) collection and production cause as much consternation as the duty to preserve, and with good reason. The failure to properly preserve documents has led to an award of sanctions in more than 230 cases in federal courts. But the key to avoiding problems is to bear in mind that the obligation is one of reasonableness, perfection is not required. Taking reasonable, timely steps to preserve will avoid problems down the line.

Duty to Collect ESI
A lawyer has an obligation to collect ESI (and, where appropriate, its associated metadata) in a sound and defensible manner. The duty ensures that electronic documents are collected properly and without spoliating information. This obligation does not require lawyers to become computer forensic experts, but practitioners should familiarize themselves with the correct procedures and employ forensic experts or professional litigation support personnel to supplement their knowledge if necessary.

Duty to Supervise
Lawyers are responsible for supervising nonlawyers throughout the e-discovery process. At least one court has held that lawyers are obligated “to sufficiently supervise or monitor their employees’ document collection.” Moreover, failure to adequately oversee outsourced or managed services, such as e-discovery service providers or contract review attorneys, could also result in sanctions. This duty is reinforced by the fact that an attorney is the one who signs discovery requests and responses, and that signature represents a certification that the requests, responses or objections are complete, accurate and not interposed for any improper purpose.

Duty During Document Review
Nowhere does a lawyer’s obligation to protect and maintain the confidences, privileged material and work product of a client come more into play than when reviewing ESI. The responsibility here is to review and produce relevant, nonprivileged material. But concomitantly, it means taking steps to avoid the production of privileged or proprietary information. If privileged material is inadvertently produced, Federal Rule of Evidence 502 provides some protection provided the lawyer “took reasonable steps to prevent disclosure” and attempted to timely retrieve the information.