Chapter § 3.04 The Ethics of e-Discovery: What Is Reasonable and Defensible?

• Jurisdiction: United States
• Publication year: 2020

§ 3.04 The Ethics of e-Discovery: What Is Reasonable and Defensible?

The proliferation of electronically stored information (ESI) in today’s business world poses new ethical challenges and risks for attorneys. In order to avoid judicial sanctions, ethical violations, and malpractice claims, attorneys need to understand the intricacies involved with ESI and propounding and requesting such evidence during discovery.¹⁶⁴

First, counsel must be competent. Some jurisdictions impose a duty of e-discovery competence directly, through ethics opinions.¹⁶⁵ But even without a formal opinion, all states’ ethics rules require attorneys to educate themselves and their clients about e-discovery issues, because courts hold counsel to very high standards when e-discovery issues arise.¹⁶⁶ For example, clicking on the single version of a file can change its access data. Therefore, a copy of the file should be made before opening it. Second, an attorney’s duty of candor requires that she avoid making false statements to the court, which can easily occur without a proper understanding of a client’s IT system and ESI preservation and production procedures.¹⁶⁷ Third, an attorney must be fair. He must ensure the preservation of discoverable ESI and avoid raising frivolous discovery demands and production issues.¹⁶⁸ Ultimately, counsel wants to avoid spoliation claims against a client, which could result in sanctions imposed upon the attorney.

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