The Ethics Of Electronic Discovery

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					        The Ethics Of
     Electronic Discovery

                                              Steven C. Bennett
    Recent developments demonstrate the need to establish “best practices.”

ELECTRONIC DISCOVERY has become a                               Mountain, 36 Creighton L. Rev. 607 (2003);
fact of life in litigation, as email, the Internet,             Steven C. Bennett, Voice Mail In Discovery, Nat’l.
and an ever-increasing set of digital devices
                                                                L. J., July 5, 2004 at S-1; Steven C. Bennett, E-
have become commonplace elements of the
business world. See generally Steven C. Bennett                 Discovery By Keyword Search, 15 Prac. Lit. 7
& Thomas M. Niccum, Two Views From The Data                     (May 2004).

Steven C. Bennett is a partner at Jones Day in New York and Chair of the firm’s E-discovery Committee. The views ex-
pressed are solely those of the author and should not be attributed to the author’s firm or its clients. Anderson Bailey,
a summer associate at Jones Day, assisted in drafting this article.

46    The Practical Litigator                                                               March 2006

    Efforts to establish “best practices” in this    EDD,, 9/20/2005; Conrad
area recently have received extensive attention.     Jacoby, Are You Ready To Process Your Own
The Sedona Conference, for example, has is-          EDD?, LawSolutions, at 2 (Summer 2005);
sued a series of best practice guidelines over the   James Mittenthal & Olivia Gerrol, EDD
past few years. Sedona Conference “best prac-        Checklist: Five Hurdles Your Firm Faces, Law Tech.
tice” recommendations are available at www.          News, 9/13/2005. In September 2005,              The employment of non-legal ancillary ser-
moreover, the Judicial Conference approved           vices is nothing new to the practice of law. In
amendments to the Federal Rules of Civil             theory, traditional professional responsibility
Procedure meant to help regulate the discovery       models should be more than sufficient to han-
of electronically stored information. The pro-       dle the issues that can arise from the provision
posed amendments can be found at             of such services. But the value and complexity                      of e-discovery services can be unique, and the
   Similar efforts at civil procedure rule reform    stakes in many cases can be quite high. The re-
are under way in many states. In addition, is-       cent withdrawal of the Boies, Schiller & Flexner
sues relating to the discovery of electronically     law firm in the Adelphia Communications
stored documents have fostered ever-increasing       bankruptcy, for example, illustrates the poten-
discussion in the case law, the legal literature,    tial impact that ethical issues in this area could
and the legal community.                             have on a litigation proceeding. See Robert
   The provision of electronic discovery ser-        Frank, Adelphia, Boies Firm Agree To Split, Wall St.
vices, moreover, has become a very big busi-         J., Aug. 30, 2005, at A3 (Boies firm resigned as
ness. A recent Socha-Gelbmann Electronic             special counsel to Adelphia Communications
Discovery Survey, for example, estimates that        after company discovered business ties be-
commercial electronic discovery revenues in          tween members of Boies family and legal docu-
2004 were in the range of $832 million, and that     ment management company used by Adel-
such revenues could go as high as $2.8 billion by    phia). This matter is discussed in greater detail
2007. See Socha Consulting LLC, www.socha-           later in this article. Hun-              The development of ethical “best practices”
dreds of third-party vendors represent an            for electronic discovery, therefore, should be an
emerging industry developed to assist counsel        important part of the advancement of this area
and clients in streamlining the sometimes elab-      of the law. The American Bar Association,
orate process of fulfilling massive electronic       through its Model Rules of Professional
document production requests. The Socha-             Conduct, and predecessor Code of Professional
Gelbmann survey, for example, lists some 395         Responsibility, has long sought to regulate the
vendors of electronic discovery services. See id.    unique problems that can arise when lawyers
   In addition to a vast array of outside e-dis-     provide non-legal services. Lawyers have tradi-
covery vendors, some law firms have begun to         tionally used any one of three basic client ser-
offer their clients in-house e-discovery services,   vice models for performing law-related, but
or are teaming with software designers to de-        non-legal, work:
velop customized e-discovery software. See,          • A client might assume full responsibility for
generally Richard E. Davis, In-House EDD: Pot Of     the non-legal work;
Gold Or Can Of Worms?, e-Discovery Law &             • Outside counsel might assume that responsi-
Strategy, 11/3/2004; Andrew Haslam, Use Your         bility; or
                                                                                   E-discovery Ethics      47

• The non-legal services might be delegated to           Counsel’s Duties
a third party, whose relationship with a client or           Counsel’s obligation may be specifically set
counsel might take various shapes.                       forth in a civil procedure rule. In the discovery
    To take a simple example: a client might di-         context, for instance, an attorney has some min-
rectly provide all of the photocopying services          imal duty to ensure that the client complies with
that a particular matter requires. This could            all proper document production requests. Rule
mean staffing of the client’s own personnel on           26(g) of the Federal Rules of Civil Procedure im-
the matter; the allocation of the client’s copying       poses on counsel a duty to engage in pretrial
machines, paper, and other resources; and, per-          discovery responsibly. The Rule requires that:
haps, the client’s assumption of responsibility          “[e]very discovery request, response or objec-
for any errors and omissions that could occur in         tions made by a party represented by an attor-
the copying process. Alternatively, a law firm           ney shall be signed by at least one attorney of
might internalize these costs and burdens by as-         record,” and that “[t]he signature of the attor-
suming for itself all photocopying responsibili-         ney or party constitutes a certification that to the
ties. Under the third model, an outside vendor           best of the signer’s knowledge, information,
might provide some or all photocopying ser-              and belief formed after a reasonable inquiry,”
vices on the matter. This vendor might have a            the request, response, or objection is “consistent
preexisting relationship with the law firm or the        with the[] rules and warranted by existing law
client. Even in this straightforward example,            or a good faith argument for the extension,
each of these different scenarios can potentially        modification or reversal of existing law,” is “not
create ethical problems.                                 interposed for any improper purpose, such as to
                                                         harass or to cause unnecessary delay or need-
   This article seeks to outline some of the ethi-
                                                         less increase in the cost of litigation,” and is “not
cal issues that can arise under even this simple
                                                         unreasonable or unduly burdensome[.]”
application of any of the three models for provi-
sion of non-legal services. This outline of the is-      Fed. R. Civ. P. 26(g)(2). The Rule further pro-
sues is necessarily sketchy and inconclusive.            vides that:
Final answers on any of these issues depend              “[i]f without substantial justification a certifica-
upon the specific facts of each case and profes-         tion is made in violation of the rule, the court,
sional responsibility law, which can vary from           upon motion or upon its own initiative, shall
state to state. The final part of the article seeks to   impose upon the person who made the certifi-
place these issues in the specific context of elec-      cation, the party on whose behalf the disclosure,
tronic discovery, and suggests the importance of         request, response, or objection is made, or both,
addressing these issues for the future.                  an appropriate sanction, which may include an
                                                         order to pay the amount of the reasonable ex-
WHEN CLIENTS PROVIDE SERVICES                            penses incurred because of the violation, in-
THEMSELVES • Lawyers cannot completely                   cluding a reasonable attorney’s fee.”
ignore the need for ancillary non-legal services         Id., Rule 26(g)(3).
in a matter. Even in the photocopying example,
certain ethical and procedural obligations pre-          The Zubulake Decision
vent counsel from wholly delegating responsi-               In Zubulake v. UBS Warburg, LLC, 229 F.R.D.
bilities to the client, despite the client’s prefer-     422 (S.D.N.Y. 2004), for example, the court
ence to assume that responsibility.                      spoke bluntly about these duties: “‘While, of
48     The Practical Litigator                                                                 March 2006

course, it is true that counsel need not supervise     tion duties in its own case accidentally left out
every step of the document production process          relevant documents, counsel might be held at
and may rely on their clients in some respects,’       fault for failing to represent the client’s interests
counsel is responsible for coordinating her            adequately. If outside counsel are unaware of
client’s discovery efforts.” Id. at 435. The           the client’s activities, moreover, counsel may be
Zubulake court quoted Metropolitan Opera Ass’n,        unable to represent the client effectively in ne-
Inc. v. Local 100, Hotel & Rest. Employees Int’l       gotiations with opposing parties, and in advo-
Union, 212 F.R.D. 178, 222 (S.D.N.Y. 2003), on         cacy before the court.
this point. In both cases, counsel’s inadequate
supervision of the client’s discovery responsi-        Who Manages The Discovery?
bilities had drastic ramifications. In Metroplitan         Many sophisticated clients, however, are tak-
Opera, the court granted plaintiff’s motion for        ing it upon themselves to create or acquire tech-
entry of judgment on liability and awarded at-         nology, and to develop in-house practice teams,
torney’s fees due to the discovery abuses of the       to respond to potential e-discovery obligations.
defendant and its outside counsel. See Metropoli-      See Sue Reisinger, Electric Company, Corp. Coun-
tan Opera, supra, 212 F.R.D. at 231. In Zubulake,
                                                       sel, 100 (Oct. 2005) (noting examples of compa-
the court ordered that a jury would be given an
                                                       nies that have hired full-time e-discovery con-
adverse inference instruction after the court
                                                       sultants, or developed in-house e-discovery
found that defendant had deleted emails rele-
                                                       coordinators). The aim of such efforts, in gener-
vant to a discovery request. See Zubulake, supra.
                                                       al, is to reduce costs and more effectively align
                                                       business records management practices with
Competency                                             the potential need to respond to discovery re-
   More generally, attorneys are charged with          quests in litigation. This “do-it-yourself” ap-
an obligation to provide “competent” service to        proach already represents a significant part of
their clients. See Model Rules of Prof’l Conduct,      the electronic discovery landscape. See Socha-
Preamble, cmt. 4; see also id. §1.1 (“A lawyer shall   Gelbmann Survey, supra (“do-it-yourself” seg-
provide competent representation to a client”).        ment of the market for e-discovery services al-
A lawyer, moreover, is required to:                    ready estimated to be greater than $50 million
• “Consult” with the client concerning the rep-        per year). New forms of data storage and re-
resentation. Model Rules, R. 1.2; see id. R.           trieval, moreover, may eventually make it pos-
1.4(a)(2) (lawyer shall “reasonably consult with       sible to expedite and streamline electronic dis-
the client about the means by which the client’s       covery. See, e.g., Kurt Maly, Michael L. Nelson &
objectives are to be accomplished”); and               Mohammad Zubair, Smart Objects, Dumb
• Act with “reasonable diligence” in represent-        Archives 5 D-Lib Mag. No. 3 (Mar. 1999) (de-
ing the client. Model Rules, R. 1.3.                   scribing theoretical bases for creating “smart
    These rules limit the extent to which counsel      archives” systems that automatically categorize
may wholesale delegate an ancillary non-legal          documents, as they are archived). Yet, the im-
service to a client. A lawyer who avoids knowl-        plementation of such technologies is far from
edge of how (and how well) an integral non-            simple. See Deborah H. Juhnke, Electronic
legal service has been performed by his or her         Discovery In 2010, 37 Info. Mgmt. J. 35, 39 (Nov.-
client may handicap the representation, in con-        Dec. 2003) (warning that: “[t]he enormous pop-
travention of the Model Rules. If, for instance, a     ularity of do-it-yourself in everything from
client who had assumed document reproduc-              home repair to self-help is filtering into the field