During the last few years, there has been much discussion, and
even some interesting debates, about ethical eDiscovery issues. Much focus has been on the topics of
duties to preserve records, duties to disclose records, and the state Rules of
Professional Conduct. But,
I believe it is not sufficient to consider only the ethical issues
involved. We must also
focus on the professionalism of eDiscovery. Some of these professionalism issues
are raised in discovery generally, but others are unique to eDiscovery.
I believe it nearly universally true that
the most professional and ethical lawyers are usually the best lawyers. They have either long ago abandoned,
or never acquired a taste for, unprofessional conduct. They have mastered their craft and
find no use for unprofessional behavior. The same could be said for business
leaders; if they are not professional, others would rather do a business deal
with someone else.
Attorney Civility Rules
Some states have developed civility rules
that are guidelines only. These
rules are not intended to be enforced against lawyer conduct the way that the
Rules of Professional Conduct are enforced. However, these are excellent
guidelines for ensuring that lawyers maintain professionalism in eDiscovery.
Included in New York’s Standards of
Civility rules are standards are obligations to be “courteous and civil in all
professional dealings with other persons.” This includes a requirement that
lawyers “should act in a civil manner regardless of the ill feelings that their
clients may have toward others” and “[l]awyers can disagree without being
disagreeable.”
The New York Standards of Civility also
state that “[a] lawyer should not use any aspect of the litigation process,
including discovery and motion practice, as a means of harassment or for the
purpose of unnecessarily prolonging or increasing litigation expenses.” ESI requests are particularly prone to
abuse in this area as it can be used to harass and increase litigation expenses.
Everything I Really Need to Know I Learned
In Kindergarten.
In Robert Fulghum’s popular essay about
what he learned in kindergarten, he discussed a few basic principles that both
lawyers and businesses should abide by. Included
among those are basic professional principles like “share everything,” “play
fair,” “don’t hit people,” “clean up your own mess,” “don’t take things that
aren’t yours,” “say you’re sorry when you hurt somebody,” and “live a balanced
life.” A healthy dose of
these basic ideas would serve the lawyer well in eDiscovery practice. Although the pressing matter may seem
most important at the time, conduct will create a reputation, and an
unprofessional reputation is difficult to lose once it is gained. You can play
fair while vigorously representing your client.
What Professionalism Should Govern
eDiscovery Practice?
In eDiscovery circles, there is much
discussion taking place about “proportionality.” Essentially, this is an issue of
reasonableness. I believe
reasonableness is also an issue of professionalism. Recall that the scope of discovery is
what is “reasonably calculated to lead to the discovery of admissible evidence.”
Fed. R. Civ. Proc. 26(b)(1). By
narrowly tailoring requests to what is reasonable will enhance eDiscovery
professionalism. eDiscovery costs should never be used as a way to bludgeon the
opposing party into submission. If
ESI the scope of a request can be narrowed without harming a client’s case,
then it should be narrowed. The
New York Rules of Civility state that “[a] lawyer should avoid discovery that
is not necessary to obtain facts or perpetuate testimony or that is designed to
place an undue burden or expense on a party.”
While many crack jokes about the
professionalism and ethics of lawyers, most lawyers I know take both ethics and
professionalism very seriously. I
believe that the best lawyers are not only ethical but highly professional as well. Some clients act professionally as
well, while others may will push for unprofessional practices. It is the lawyer’s job to reign in his
or her client. While a
lawyer must zealously advocate for a client, no case or client is ever worth
squandering one’s reputation. Never
allow a client to cause you to do something unethical or unprofessional.
Lawyers involved in eDiscovery should
strive for not only meeting the basic Rules of Professional Conduct but also
the Rules of Civility. By
doing so, we serve the judicial system, our colleagues and our clients with
integrity.
No comments:
Post a Comment