Loyalty to the process: advocacy and ethics in the age of e-discovery.

• Author: Good, Margaret Rowell
• Position: Young Lawyers Division

The lawyer's highest loyalty is at the same time the most tangible. It is loyalty that runs, not to persons, but to procedures and institutions. (1)

In this digital age, approximately 98 percent of all information is created, stored, and modified electronically. (2) Yet parties discuss the discovery of electronically stored information (ESI) in less than 30 percent of all federal cases and in less than two percent of all state cases. (3) The technological revolution of the last several decades has exposed lawyers, in particular, to new and unexpected challenges in fulfilling their professional and ethical duties. (4) ESI's "high volume, broad dispersal, and dynamic nature" can frustrate effective and economically viable discovery. (5) Although the complexity of e-discovery affects all lawyers, e-discovery challenges may more significantly affect lawyers practicing in small firms that lack the benefit of an e-discovery team. Likewise, lawyers whose clients lack the resources to undertake substantial e-discovery may believe they are at a disadvantage. However, by attaining a basic understanding of the underlying technology and pertinent procedural rules, lawyers practicing in small firms can successfully advocate for their clients, minimize costs, and avoid the ethical missteps that have plagued e-discovery in recent history.

While the 2006 amendments to the Federal Rules of Civil Procedure (6) and the proposed amendments to the Florida Rules of Civil Procedure (7) have the potential to ameliorate many of the problems associated with costs, resource imbalance, and efficiency of e-discovery, before a practitioner can competently execute these rules, the attorney must achieve basic techno logical competence and understand the importance of cooperation in the management of the discovery process. Accordingly, this article focuses on three subjects: technological competence, e-discovery procedural rules, and the Sedona Conference cooperation principle.

Technological Competence

Because our dependence on electronic devices continues to grow exponentially, ESI affects every case, whether parties acknowledge it or not. As Lawrence Kolin, former chair of The Florida Bar's Civil Procedure Rules Subcommittee on Electronic Discovery, noted, e-discovery "issues are no longer limited to complex commercial litigation and are increasingly evident in the full range of civil cases." (8) The legal community is beginning to recognize that every practitioner must obtain some level of technological competence in order to meet his or her professional obligations. (9)

The lack of technological competence has dramatically affected the discovery process. From 2005 to 2010, sanctions in cases involving e-discovery increased dramatically. (10) From negligently handing over privileged communications (11) to failing to preserve electronic evidence, (12) cases abound where counsel, confronted with new electronic discovery challenges, fail to rise to the occasion. Even when the conduct isn't intentional or willful, courts are increasingly imposing sanctions on parties and, occasionally, on counsel. (13) The most egregious e-discovery blunders have resulted in dismissals, (14) million dollar sanctions, (15) bar association referrals, (16) adverse inference instructions, (17) and subsequent malpractice claims. (18) As a recent malpractice lawsuit suggests, even the largest and most sophisticated firms are not immune to e-discovery disasters. (19) Without appropriate technological knowledge and an understanding of the management of e-discovery, an unwary advocate could find himself or herself a party to a malpractice suit or on the receiving end of judicial sanctions. (20)

Advocates have a duty to provide competent representation. (21) When conducting e-discovery, the foundation of competence is basic technological understanding. (22) Lawyers practicing in small firms can become competent without expending substantial resources. The eager e-learner will find countless resources available on the Internet. Ralph Losey's E-Team blog (23) and his entertaining animated YouTube videos (24) nicely supplement more traditional resources, such as Ralph Artigliere and William Hamilton's LexisNexis Practice Guide Florida E-Discovery and Evidence. (25) The leadership of the Sedona Conference (26) and the resources it provides are also invaluable. With new e-discovery software coming onto the market continuously, the savviest practitioners must keep up with new advances in search technology, predictive coding, (27) and other cutting edge software and technologies.

After obtaining basic technological proficiency, a lawyer is poised to use both the Federal Rules of Civil Procedure, or, as the case warrants, the proposed Florida rules, to provide professional and ethical representation. In the world of ever-expanding digital information, (28) a successful attorney focuses the available time and resources on the evidence most relevant to the case. (29) The rules of civil procedure provide judges and counsel tools to effectively manage the amount and scope of discoverable information, thereby diminishing the expense and time burdens associated with electronic discovery.

Undue Burden and Proportionality Analysis

Although historically the scope of discoverable information under both the federal and Florida rules has been broadly construed, (30) certain 2006 amendments to the Federal Rules of Civil Procedure, as well as the proposed amendments to the Florida rules, limit the amount of discoverable electronic information. Under Fed. R. Civ. P. 26(b)(2)(B), discovery of ESI may be limited when a party can show the sources of ESI are "not reasonably accessible because of undue burden or cost." (31) Further, federal courts are required to limit discovery if "the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues." (32) However, if the requesting party can show good cause, the party may still be able to compel discovery. (33) The rule "allows judges and producing parties to determine if the requested amount of discovery would be proportional to the...