Symposium: ethical issues in e-discovery, social media, and the cloud.

• Author: Kortbawi, Kersten Roehsler

This fall, members of the Rutgers Computer and Technology Law Journal (RCTLJ) had the great honor to sit down with the Hon. Ronald J. Hedges, former United States Magistrate Judge, and Maura R. Grossman, Esq., to discuss emerging issues related to electronic discovery.

Judge Hedges served as a United States Magistrate Judge in the United States District Court for the District of New Jersey from 1986 to 2007. Presently, he is the principal of Ronald J. Hedges LLC and is of counsel to Corodemus & Corodemus. He has extensive experience in e-discovery and managing complex litigation, and has served as a special master, arbitrator, and mediator.

Maura R. Grossman joined Wachtell, Lipton, Rosen & Katz as an associate in the litigation department in 1999 and was appointed as Counsel in 2007. She focuses her practice primarily on legal, technical, and strategic issues involving electronic discovery and information management, both domestically and abroad.

Judge Hedges and Ms. Grossman spoke at RCTLJ's CLE symposium entitled, "Ethical Issues in E-Discovery, Social Media, and the Cloud," on October 23rd, 2012. This discussion took place on November 7th, 2012. (1)

RCTLJ: When opposing counsel is clearly inept when working with electronically stored information (ESI), for instance, choosing a poor set of search terms, what should an attorney do to uphold the interest of justice?

HEDGES: In a civil proceeding, an attorney has no obligation to do anything in the interest of justice. The attorney's obligation is to represent his or her client and to conform to the Rules of Professional Conduct. (2) However, if the attorney knows that his or her adversary is doing something wrong and that the attorney has made an affirmative assertion to the contrary to the adversary or the court, then an obligation to do something arises. (3)

In a criminal proceeding there are obvious constitutional issues. For instance, a United States Attomey must see that justice is done. If she believes that an injustice will result due to the mishandling of ESI, she may have to step in and tell the court. (4) The prosecutor must also think about the prospect of an incipient habeas corpus petition or other post-conviction action.

GROSSMAN: I agree with Ron; I am not aware of any ethical rule that requires you to help your adversary. Obviously you cannot make misrepresentations and both parties have an obligation to be competent. (5) However there may be strategic reasons to educate or assist opposing counsel when it will benefit your client.

HEDGES: One thing I would suggest, if you are going to make that decision to help the other side, I think that this is a very important area to secure informed consent beforehand from your client.

RCTLJ: During our symposium you both emphasized the need for attorneys to be competent. Are judges also attaining and exhibiting the requisite technological expertise?

HEDGES: There is always a need for improvement and there does seem to be a distinction between federal and state judges. The federal courts have far more resources available to educate judges. (6) For example, Maura and I just participated in a judicial training program on ESI. I do not know if state courts are able to provide such programs. However, there is no set level of expertise for any judge.

Additionally, The Sedona Conference(r), of which Maura and I are members, has recently made a new edition of the Sedona Cooperation Proclamation--Resources for the Judiciary that will help judges navigate through ESI issues during litigation. (7)

GROSSMAN: I think that just as in the bar, there are a range of capabilities; some people are extraordinarily talented and knowledgeable in this area and others are near the end of their legal careers and do not want to deal with ESI. The same is true for judges. But there are many educational forums where judges can go to learn about electronic discovery. (8) There are also a number of bench books available from institutions like the Federal Judicial Center or from the New York State Court system, among other jurisdictions. (9)

RCTLJ: One of the greatest conundrums with e-discovery is the preservation of evidence. Can you provide some tips on how to preserve ESI effectively?

GROSSMAN: One of the first things you have to do is put a litigation hold in place. (10) This means notifying custodians who have potentially relevant information to preserve it. (11) Sometimes the information is not custodian-based and you have to speak to information technology (IT) personnel to preserve it. Once you put a litigation hold in place, the most important aspect is to understand what information you have and where it is located, which is often referred to as "data mapping." The data map is essentially an inventory of where the information is located and whether it is reasonably accessible or not. This information will allow you to have a good grasp on what you have and where it is to be found, and then you can move ahead with confidence.

HEDGES: I am not familiar with the procedures among the state courts. At the federal level, however, the parties must meet and confer and plan for discovery under Federal Rule of Civil Procedure 26(f) (FRCP). (12) Then the parties must participate in a FRCP 16(b) pretrial scheduling conference with the judge. (13) Both rules specifically talk about preservation. I think it is incumbent on lawyers to address these issues as soon as possible and to see what stipulations might be entered into. The parties should also go through their client's ESI and sort out what is relevant and needs to be preserved from what is not and is therefore eligible for return to the retention cycle. This lets your client dispose of indistinct information and to define the scope of evidence preservation.

GROSSMAN: Often preservation decisions are unilateral decisions. Preservation may not be discussed at the FRCP 26(f) conference because the duty to preserve is triggered when there is reasonable anticipation of litigation. This is often well before the commencement of the lawsuit.

Furthermore, 1 think there are two schools of thought regarding preservation. First is the "save everything" mentality. (15) The downside is that you spend a lot of time, effort, and money searching '"everything" for potentially relevant information. Second is the "proportionality" or "reasonableness" approach where the client makes a thoughtful decision about what is most likely to be probative and contribute to the resolution of the dispute, without getting overly concerned about the...