I attended the Northern Kentucky Law Review’s Spring Symposium entitled “E-Discovery: Navigating the Changing Ethical and Practical Expectations” yesterday sponsored by the Chase College of Law. Here’s the first post.
First panel of the morning was entitled “Ethics in E-Discovery” that included:
- Jennifer Anglim Kreder (moderator), Assoc. Profession, NKU Chase College of Law
- Debra Lyn Bassett, Professor, Univ. of Alabama School of Law
- Hon. John L. Carroll, Dean & Professor, Cumberland School of Law
- Gregory Harrison, Partner, Dinsmore & Shohl LLP
Professor Kreder did an excellent job moderating the panel and started off by asking how ethical issues are different when e-discovery is involved:
Bassett: In general, ethical issues around e-discovery arise in the same manner as they do with physical documents although the biggest difference is the sheer volume and number of documents. The average users creates approximately 75 e-mails a day; but no average user would create 75 pieces of paper per day!
Next, Prof. Kreder asked if e-discovery requires a different level of competence:
Harrison: No – Model Rule 1.1 only states that we need competence that is reasonably necessary to represent the client.
Carroll: Judges of my generation “have no idea” what we’re talking about when it comes to e-discovery. So to be competent today, you have to show up and be ready to discuss many issues related to ESI, you have to understand the infrastructure of your client’s technology (even if you’re representing an individual) and you have to be ready to tell your client how to NOT delete anything.
Prof. Kreder: How are attorneys using e-discovery to advance their clients’ position?
Carroll: there is a great potential for abuse in this area – the cost of e-discovery can become so expensive that the party settles to avoid unnecessary costs.
Prof. Kreder then asked the panel if they could share their thoughts on “reasonably anticipating” litigation:
Harrison: I find that the most difficult area is NOT the defense side because they have some kind of knowledge that litigation is coming. The bigger problem is from the plaintiff’s side since they have to anticipate filing the complaint at a time when they’re not particularly thinking about preserving information.
Prof. Kreder then asked for a general “lay of the land” in the ethical issues with e-discovery:
Bassett: Most would argue that Qualcomm is the biggest post-Zubulake case. There are two main lessons from Qualcomm: 1) attorney supervision of their clients data collection activities plays a much larger role – there is no safe haven; and 2) the looming area of cooperation – the court explained that attorneys and clients must work together to understand how and where ESI is maintained.
Harrison: Qualcomm is one of the most important cases from an ethical perspective and it creates a potential wedge between the attorney and their client when dealing with e-discovery. The whole basis for the rules is in defining the relationship between the attorney and client historically based on trust, confidence, and loyalty. As the law changes, it sets up standards that create tension between a lawyer and their client. You get lawyers covering their hindquarters instead of zealously representing their client.
Lastly, Prof. Kreder asked the panel to address new Federal Rule of Evidence 502:
Carroll: The cost of privilege review for a million e-mails is mind-boggling, and the rules have struggled with how to adequately represent a client without ensuing this cost. FRE 502 has addressed the issue of inadvertent waiver.
Harrison: This is a scary issue for a practitioner. You can’t un-ring the bell when there is inadvertent waiver. FRE 502 provides some comfort, but it’s “pretty cold comfort” because yes you COULD get something back but it’s already out there. Also, will state judges actually follow this like they’re supposed to?