IV. Beyond Competence: Ethical Considerations During the Discovery Process

• Library: Professional Responsibility in Litigation (ABA) (2016 Ed.)

IV. Beyond Competence: Ethical Considerations During the Discovery Process

A. Preservation of Information

In the ordinary course of litigation, lawyers' professional responsibilities with regard to e-discovery will first be triggered in connection with clients' duties to preserve evidence. In the context of paper discovery, if litigants (or their lawyers) do nothing in the time between first sensing the prospect of litigation and actually receiving a discovery request seeking particular documents, no evidence will likely have been lost in the interim. But e-discovery poses a special challenge in that ESI is often lost or made inaccessible not by action designed to be destructive but rather through the routine course of document retention protocols. Thus, mere inaction (as well as the intentional but pure-hearted acts of a single user of a client's systems) could lead to the loss of data, which in turn could raise spoliation of evidence concerns. Consequently, courts expect parties and their counsel to act. Further, a great deal of ESI thought to be deleted is actually retrievable. As a result, people often believe that evidence does not exist when in reality it does, and must be preserved.

A litigant's duty to preserve evidence arises once litigation is reasonably foreseeable.⁵⁸ In some cases this is clear; in others it is not. Considering the costs and business disruption potentially created by the preservation of electronic evidence, deciding whether and to what extent preservation efforts must be employed can be tricky.

Regardless of when the duty to preserve information is triggered, the duty existed before e-discovery came along. With the fanfare of the Zubulake decisions and growth of e-discovery, however, the role that lawyers play in the preservation process has been fundamentally altered. In turn, e-discovery has derivatively affected lawyers' professional responsibilities. Courts now expect lawyers to be sufficiently familiar with their clients' information systems and the means by which evidence on them can be preserved to oversee the implementation of litigation holds.⁵⁹ At the same time, the cost of preserving ESI can be significant, and the scope of information that should be preserved depends on a variety of considerations. Litigants need lawyers who can capably advise them on how to avoid spoliation claims while simultaneously avoiding costs that are so disproportionate to what courts expect as to be unnecessary.⁶⁰ Thus, the ability to implement a proper litigation hold bears directly on lawyers' duty of competence under Model Rule 1.1. Additionally, lawyers' statements concerning whether and what steps have been taken to preserve evidence—such as those made in Rule 26(f) reports or during disputes—implicate their duty of candor to a tribunal under Model Rule 3.3(a)(1).⁶¹ Important steps in the preservation process for which lawyers are responsible include identifying and providing notice of a litigation hold to key players in the client organization; consulting with information technology (IT) personnel to suspend regular document retention or destruction policies; familiarizing themselves with the relevant IT systems and overseeing the preservation process; periodically maintaining and reviewing the litigation hold; and documenting the litigation hold.

B. Propounding Discovery

Although the majority of e-discovery cases relate to the conduct of a party or lawyer from whom discovery has been requested, the ethical obligations of a lawyer serving discovery cannot be forgotten. Such obligations are found in Model Rule 3.4(d), which instructs that counsel shall not "make a frivolous discovery request."⁶²

In Mancia v. Mayflower Textile Services Co.,⁶³ the court reprimanded lawyers on both sides of a discovery dispute. The Mancia plaintiffs were employees who had brought a putative FLSA collective action against their employer for not paying proper overtime wages and making illegal paycheck deductions. A number of discovery disputes arose and the plaintiffs filed multiple motions to compel, which were referred to Magistrate Judge Paul Grimm. At a hearing, Judge Grimm expressed his concerns about the scope of the plaintiffs' requests as well as with the defendants' boilerplate objections.⁶⁴ In his subsequent order, he emphasized Federal Rule of Civil Procedure 26(g), which he characterized as "[o]ne of the most important, but apparently least understood or followed, of the discovery rules."⁶⁵ Rule 26(g) requires every discovery request, response, or objection to be signed by an attorney of record (or unrepresented party) who thereby certifies that, to the best of the signer's knowledge "formed after a reasonable inquiry," the request or response is, among other things, not interposed for any improper purpose—such as to "needlessly increase the costs of litigation"— and is not unreasonably or unduly burdensome or expensive.⁶⁶ Judge Grimm went on to quote the Advisory Committee's Note to Rule 26(g):

"Rule 26(g) imposes an affirmative duty to engage in pretrial discovery in a responsible manner that is consistent with the spirit and purposes of Rule 26(g) and is designed to curb discovery abuse by explicitly encouraging the imposition of sanctions. The subdivision provides a deterrent to both excessive discovery and evasion by imposing a certification requirement that obliges each attorney to stop and think about the legitimacy of a discovery request, a response thereto, or an objection. . . ."⁶⁷

As Judge Grimm further explained, Rule 26(g) "aspires to eliminate one of the most prevalent of all discovery abuses: kneejerk discovery requests served without consideration of cost or burden to the responding party."⁶⁸ Nonetheless, "the reality appears to be that with respect to certain discovery, principally interrogatories and document production requests, lawyers customarily serve requests that are far broader, more redundant and burdensome than necessary to obtain sufficient facts to enable them to resolve the case through motion, settlement or trial."⁶⁹ Judge Grimm rejected the idea that overbroad discovery was a product of the requesting attorney's lack of information at the time the requests have to be made.

The rationalization for this behavior [overbroad, inappropriate requests] is that the party propounding Rule 33 and 34 discovery does not know enough information to more narrowly tailor them, but this would not be so if lawyers approached discovery responsibly, as the rule mandates, and met and conferred before initiating discovery, and simply discussed what the amount in controversy is, and how much, what type, and what sequence, discovery should be conducted so that its cost—to all parties—is proportional to what is at stake in the litigation.⁷⁰

Judge Grimm's ire was not solely directed at the plaintiffs' counsel; indeed, the order devotes considerable attention to deficiencies in the approach taken by the defense.⁷¹ But while courts often scold lawyers for obstructionist conduct in discovery, reported cases criticizing lawyers for overbroad discovery are rare. By emphasizing Rule 26(g), the court in Mancia raised the issue of whether lawyers who propound overbroad discovery requests (or who will not reasonably narrow them) violate Rule 3.4(d). The proportionality considerations in the 2015 amendments to the Federal Rules of Civil Procedure should further draw attention to the reasonableness and ethically permissible boundary of an attorney's conduct in propounding discovery.

Ideally, counsel would discuss the appropriate scope of discovery and attempt to narrow the scope of requests before serving discovery requests; that is the approach contemplated by the Federal Rules. Yet, as a matter of practice, habit, and sometimes exigent circumstances, that is often not the case. In many cases, a party propounding discovery will not have had the benefit of information from the other side necessary to craft a narrower request that would still cover key information required to properly litigate the matter. The 2015 amendment to Rule 34 allows a party to serve requests for documents and ESI before the Rule 26(f) conference, but the 30-day deadline to respond does not start until after the conference. The purpose of this amendment is to allow lawyers to discuss actual rather than hypothetical discovery requests. Such discussion presumably should entail the propounding attorney, in appropriate cases, narrowing requests based on information provided by the responding party. Lawyers in jurisdictions that allow for immediate discovery should not be subject to discipline merely because they were diligent in promptly propounding discovery. But lawyers who refuse to cooperate and reasonably narrow initial broad requests or keyword search demands based on meet-and-confer exchanges should be accountable under Model Rule 3.4(d) for violating Rule 26(g) or state law equivalents.⁷²

C. Discovery Responses and Objections

Although the upshot of Mancia may be additional rulings addressing the conduct of counsel propounding discovery, most such cases to date have involved counsel's conduct in responding to discovery. Model Rule 3.4 addresses lawyers' obligations in responding to discovery in two separate respects relevant to any discussion of e-discovery. First, Model Rule 3.4(c) makes it an ethical violation for a lawyer to "knowingly disobey an obligation under the rules of a tribunal" other than "an open refusal based on an assertion that no valid obligation exists."⁷³ Second, Model Rule 3.4(d) makes it an ethical violation for a lawyer to "fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party."⁷⁴ In responding and objecting to discovery requests, lawyers must recognize three areas in which their conduct may implicate Models Rules 3.4(c) and (d) and state analogs: (1) locating and accounting for responsive ESI; (2) asserting proper objections; and (3) selecting...