The eDiscovery Paradigm Shift

Sunday, August 12, 2012

The Legal Profession Found the Twenty-First Century: Ignorance is bliss no longer

As a profession, lawyers and bar associations are notoriously slow to change. Last week, the American Bar Association considered and adopted updates to the Model Rules of Professional Conduct that govern lawyers. The legal profession has found its way into the Twenty-First Century and clients will benefit.

The American Bar Association’s Commission on Ethics 20/20 filed its first six recommendations with the ABA House of Delegates on May 7, 2012. These recommendations are the result of a three-year study of how “globalization and technology are transforming the practice of law and how the regulation of lawyers should be updated in light of those developments.” The Commission’s recommendations have been split into two sets of proposals with the first considered by the ABA House of Delegates at its August 2012 meeting. The other recommendations will be considered in February 2013.

The ABA stated that “technology and globalization have transformed the practice of law in ways the profession could not anticipate in 2002. Since then, communications and commerce have become increasingly globalized and technology-based. In August 2009, then-ABA President Carolyn B. Lamm created the Commission on Ethics 20/20 to tackle the ethical and regulatory challenges and opportunities arising from these 21st century realities. She charged the Commission with conducting a plenary assessment of the ABA Model Rules of Professional Conduct and related ABA policies, and directed it to follow these principles: protecting the public; preserving the core professional values of the American legal profession; and maintaining a strong, independent, and self-regulated profession.”

August 2012 Adopted Changes

Rule 1.1 requires that a lawyer provide “competent representation to a client,” which “requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” The Comment to Rule 1.1 was amended to state that a lawyer’s competence must now include knowledge of “the benefits and risks associated with relevant technology.” No longer can a lawyer claim ignorance. The fundamental principle of competence now requires a lawyer to know and keep apprised of how technology impacts her practice and her representation of the client.

The ABA added the following language to Rule 1.6 which governs a lawyer’s duty to keep information confidential: “A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” In Comment 16, the ABA clarified that this new language in the rule means:

“The unauthorized access to, or the inadvertent or unauthorized disclosure of, information relating to the representation of a client does not constitute a violation of paragraph (c) if the lawyer has made reasonable efforts to prevent the access or disclosure. Factors to be considered in determining the reasonableness of the lawyer’s efforts include, but are not limited to, the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use). A client may require the lawyer to implement special security measures not required by this Rule or may give informed consent to forgo security measures that would otherwise be required by this Rule. Whether a lawyer may be required to take additional steps to safeguard a client’s information in order to comply with other law, such as state and federal laws that govern data privacy or that impose notification requirements upon the loss of, or unauthorized access to, electronic information, is beyond the scope of these Rules.”

In its amendments to Rule 4.4(b), the ABA concluded that electronically stored information should be treated like other documents. Now, “[a] lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender.”

In Comment 2 to Rule 4.4, the ABA added that “A document or electronically stored information is inadvertently sent when it is accidentally transmitted, such as when an email or letter is misaddressed or a document or electronically stored information is accidentally included with information that was intentionally transmitted.” “Metadata” is included in the types of electronically stored information that may be inadvertently disclosed. However, metadata in electronic documents "creates an obligation under this Rule only if the receiving lawyer knows or reasonably should know that the metadata was inadvertently sent to the receiving lawyer.”

The ABA also tackled issues relating to Outsourcing and Technology and Client Development. Those issues will be addressed in another article.

Conclusion

While the ABA’s Model Rules are not binding on lawyer until adopted by the states, the influence of changes to the Model Rules cannot be overstated. Most states usually adopt some variety of changes made to the Model Rules of Professional Conduct. Thus, look for each state to address these recommendations over the next year. There will likely be some healthy and interesting debates to come. Stay tuned.

Labels: ABA, American Bar Association, Ethics, Ethics 20/20, Legal Ethics, Rules of Professional Conduct

Wednesday, April 4, 2012

Lawyer Certification on Predictive Coding

The eDiscovery Solutions Group Weekly Poll that ran from March 26, 2012 to April 2, 2012 asked whether or not lawyers should be able to explain the general technical and statistical mathematics supporting Predictive Coding to be able to utilize Predictive Coding during the eDiscovery and document coding process.

25% of the respondents to this poll indicated that lawyers should be famailiar with Predictive Coding to utilize it during the eDiscovery and document coding process. 62% of the respondents to this poll indicated that lawyers should be somewhat familiar with Predictive Coding to utilize it during the eDiscovery and document coding process. And, 12% of the respondents to this poll indicated that lawyers should not have to be familiar with Predictive Coding to utilize it during the eDiscovery and document coding process.

Given the fact that Judge Peck's decision is still being digested and there continues to be debate among the "technical experts" within the industry about the vetting process for Predictive Coding, many may not think that it is way too early to start worrying about whether or not lawyers understand the technical nuances of this new technology. However, I am not sure that the ABA Commission on Ethics would agree that "it is not yet time" as they are already addressing the question of what level of competence lawyers must have in applying IT concepts to the practice of law.

The technology of eDiscovery in general has leapfrogged any technology issues that most litigators have had to understand in the past. And, Predictive Coding and all of it's cousins in computer assisted eDiscovery and search, may in fact have leapfrogged the eDiscovery technology of just 2-3 years ago.

I am sure that the courts and the industry will fully vett Predictive Coding and develope the appropriate best practice for when and how it should be used. And, I am sure that ABA will figure out what level of competence lawyers must have in applying Predictive Coding. I just have to wonder if the results of this process isn't a tipping point for a changing of the guard within the legal ranks?

And, since this whole "thing" is about providing equal access to the judicial system and adequate representation, let's hope they all get it right. Certification on Predictive Coding for lawyers or not.

Click Here to review the results of this poll and the results of all of the eDSG Weekly Polls on hot topics within the eDiscovery and Information Governance market.

Labels: ABA, ABA Standing Committee on Ethics and Professional Responsibility, American Bar Association, eDiscovery, Predictive Coding

Saturday, January 21, 2012

The Dangers of Do-It-Yourself eDiscovery: A Warning to Lawyers and Business Leaders.

The goal of eDiscovery is to acquire relevant electronically stored information (ESI) and admit relevant and useful ESI into evidence. While ESI may be used for other purposes, such depositions or settlement negotiations, if the ESI is not gathered properly, it will not be admissible into evidence. Such a result would waste both the time and cost expended to obtain the ESI. Lawyers should not gather ESI personally and the person who does the collection should be qualified to do such work. Otherwise, the ESI may not be admissible and significant damage may be done to a party’s case.

The Lawyer as a Witness. Lawyers who gather ESI directly face several dilemmas and dangers. One of the largest concerns is the lawyer becoming a witness in the case. American Bar Association Model Rule of Professional Conduct 3.7 prohibits the lawyer from acting as the lawyer in the case and being a necessary witness. Rule 3.7 states:

(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.

(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.

The comment 2 to Rule 3.7 states:
The tribunal has proper objection when the trier of fact may be confused or misled by a lawyer serving as both advocate and witness. The opposing party has proper objection where the combination of roles may prejudice that party's rights in the litigation. A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof.

In the D.C. Bar in Ethics Opinion No. 228 expanded upon the purpose of this rule:

Beyond the confusion that this combination of roles might create, the rule is justified on at least three other bases: (1) it is necessary to prevent the possibility that, in addressing the jury, the lawyer will appear to vouch for his own credibility; (2) it will prevent the difficult situation that occurs when an opposing counsel must cross-examine a lawyer-adversary and seek to impeach his credibility; and (3) the rule also will prevent the implication that the testifying lawyer is distorting the truth for his/her client’s benefit.

Citing Culebras Enterprises Corp. v. Rivera-Rios, 846 F.2d 94, 99 (1st Cir. 1988), citing Bottaro v. Hatton Associates, 680 F.2d 895, 897 (2d Cir. 1982); International Electronics v. Flanzer, 527 F.2d 1288, 1294 (2d Cir. 1975); MacArthur v. Bank of New York, 524 F. Supp. 1205, 1208 (S.D.N.Y. 1981).

Authentication of ESI. Any person who gathers ESI must be able to authenticate and lay a foundation for that ESI. “Authentication” simply means that the person called to admit the ESI must prove that the ESI is what he or she claims it is. That person must be able to lay a foundation for the ESI.

To authenticate the evidence, the person called to testify may need to establish the following, depending upon what is sought to be introduced and the issues raised:

How the ESI was gathered.
Where the ESI was stored.
Who had access to it.
Establish the chain-of-custody
Whether other ESI was also located.
Whether a thorough search was conducted.
Whether the ESI sought to be introduced was altered from its original state.
Other essential details.

Who should be entrusted with the responsibility to gather the ESI? Who should take the witness stand to testify at trial? Certainly, the law firm’s paralegal, secretary and investigator should not conduct the ESI search unless that individual is qualified to establish the above-listed details and will lay the appropriate foundation for introduction of the ESI.

When gathering evidence it is usually not clear whether the evidence will be challenged when the party seeks to introduce it. Thus, the evidence should be gathered in a thoughtful manner that will withstand future challenges.

If ESI is gathered improperly and a party is unable to lay an appropriate foundation to authenticate the ESI, that evidence will not be admitted into evidence. This could be devastating to the case, depending on how critical the ESI was.

Just as experts are hired to provide opinions and establish essential facts, experts should be used to gather ESI. Ideally, the expert will have both technical are needed to search for, gather and introduce ESI.

The person who gathers ESI should also be a good witness. Parties must generally take witnesses as they come. There is very little control over who witnessed particular facts. However, when gathering evidence, parties are given the opportunity to select the witness. So, there should be some assurance that the person who gathers ESI will be a competent witness who can be depended upon. This witness may end up being the critical witness in the case.

Do-It-Yourself eDiscovery Software Tools. Some eDiscovery software tools are marketed directly to lawyers and this is clearly a terrible idea. A lawyer should not gather ESI if he wants to remain the attorney in the case or introduce the ESI into evidence. If the lawyer chooses to gather ESI, he may even be committing malpractice. Do-it-yourself software tools were intended to reduce the cost of eDiscovery and place direct control over the ESI in the hands of lawyers and business leaders. However, they may have unintended consequences.

The lawyer cannot use these tools to gather ESI or she may be disqualified as the lawyer in the case. Only a person qualified to testify at trial should use these tools to gather ESI. Ideally, this person would be an expert.
Thought must be given to who and how ESI should be gathered before it is obtained. A little bit of caution early will be rewarded later.

Labels: ABA, aba model rule 3.7, Authentication, Cerifications, Chain of Custody, eDiscovery, ediscovery competence, eDiscovery Consultants, EDRM, ESI, Legal

Wednesday, December 28, 2011

eDiscovery and the Lawyer's Duty of Competence

The level of eDiscovery knowledge and experience among attorneys is widely varied. Some understand the issues in-depth, others have a passing knowledge of the basics, and other do not have even a beginner’s comprehension of the issues. Those who fail to acquire a working understanding eDiscovery issues are doing a great disservice to their clients; they may even be committing malpractice.

I often preach that there were two obligations highlighted in the 2006 amendments to the Federal Rules of Civil Procedure. First, is the duty to disclose ESI when required. As is widely known, when litigation is reasonably foreseeable a party must prevent the destruction of all ESI that may be discoverable. When requested in discovery, this ESI must be disclosed. This a generally accepted principle. The second obligation, and in my view equally as important, is to obtain ESI in discovery from opposing parties and nonparties. Without a good understanding of eDiscovery issues, lawyers are not prepared to meet either of these obligations.

The need to have a thorough understanding of eDiscovery issues arises out of the attorney’s obligation to the client. Each lawyer owes a duty of competence to the client. The American Bar Association’s Model 1.1 of the Rule of Professional Conduct reads:

Rule 1.1 Competence
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation

Comment 6 to ABA Model Rule 1.1 states: “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”

ESI has the potential to play a role in nearly every case and thus all lawyers must be competent in eDiscovery. Even the business lawyer who does not litigate cases must prepare his client for eDiscovery. Both in-house and outside counsel have been sanctioned for failure to preserve and disclose ESI. Each case must be evaluated to determine the extent of the role eDiscovery will play.

The abundance of ESI, from email to Facebook, copy machines to cell phones, is so overwhelming that it is very rare when a case does not require an understanding of eDiscovery issues. Some lawyers may believe that eDiscovery issues do not permeate their practice or the kinds of cases they handle. They may believe that eDiscovery only applies when large parties do battle and have the resources necessary to hire experts to do ESI searches and to pay teams of lawyers to pour over the results for large volumes of records that are generated by these searches. This is not true.

eDiscovery is important in almost every case. The divorce lawyer will want the email, Facebook, Twitter and other ESI of the soon-to-be ex-spouse. The bankruptcy lawyer representing creditors may want to search for evidence of other assets. A criminal defense attorney will want to look for impeachment evidence. The treasure trove of information contained in ESI needs to be considered by every litigator.

Some lawyers may avoid eDiscovery issues because they fear it cost-prohibitive for their clients. eDiscovery does not have to cost the clients hundreds of thousands of dollars. Depending on what is needed in the case, less costly options are available. After a thorough analysis of the case, the lawyer can provide options to the client depending upon what the client can afford. Ultimately, this the cost of eDiscovery is the client’s decision, but only the lawyer who is thoroughly versed in eDiscovery will be able to explain the options, the impact each option will have on the case, and how the costs compare with the likely benefits.

I urge lawyers to grow in their knowledge of eDiscovery issues, to become inquisitive as to how it can be integral in the cases they handle, and to use this knowledge to be zealous advocates for their clients. There are many organizations that can help walk attorneys through these issues, but regardless, it is each lawyer’s ethical obligation to competently represent her client.

Labels: ABA, ABA Model Rule 1.1, Amercian Bar Association, eDiscovery, FRC, Litigation

Thursday, August 28, 2008

ABA Issues Formal Opinion 08-451 Outlining SOPs for Outsourcing Litigation Services

On Monday, the American Bar Association (ABA) Standing Committee on Ethics and Professional Responsibility released a statement regarding a new ethics opinion (Formal Opinion 08-451), which concludes that U.S. lawyers can outsource legal and nonlegal work provided that they adhere to ethics rules regarding competence, supervision, protection of confidential information, reasonable fees, and not assisting in the unauthorized practice of law. The opinion, entitled "Lawyer’s Obligations When Outsourcing Legal and Nonlegal Support Services," outlines the ethics obligations of lawyers and firms that wish to utilize legal and nonlegal outsourcing.

Stating that "[a] lawyer may outsource legal or nonlegal support services provided the lawyer remains ultimately responsible for rendering competent legal services to the client," the opinion notes that lawyers and law firms engage lawyers and nonlawyers for various legal and nonlegal support services, ranging from "the use of a local photocopy shop for the reproduction of documents, to the retention of a document management company for the creation and maintenance of a database for complex litigation, . . . or even to the engagement of a group of foreign lawyers to draft patent applications." The opinion acknowledges, however, that "[t]he challenge for an outsourcing lawyer is . . . to ensure that tasks are delegated to individuals who are competent to perform them, and then to oversee the execution of the project adequately and appropriately."

Given the rapid rise in the cost of eDiscovery over the past 24 months coupled with the undeniable financial opportunities offered by our global economy and the recent application of Internet based technology to the litigating services market, this opinion is basically setting operating standards in a "market" where most of the horses have all left the barn, the door is still wide open and we are all wondering about the competence of the horses that haven't left.

All that being said, given the fact that this is not the mission of the ABA to endorse any practices and therefore, regardless of the press releases that are cropping up from litigation services vendors, this is not an endorsement of outsourcing your litigation services on-shore or off-shore.

It does, nonetheless, provide a framework and set of criteria for outsourcing as follows:

1. The outsource has the "legal knowledge, skill, thoroughness and preparation reasonably necessary."
2. The client consents in writing, with a knowing acceptance of the risk of breach of attorney-client confidence.
3. Outsource work is properly supervised by US counsel, including appropriate protection of client secrets.
4A. The US lawyer checks background and references.
4B. The outsource legal education is comparable to a US legal education.
5. The outsource signs a confidentiality agreement.
6. The fee remains reasonable after including any US surcharge for overhead.

In an upcoming Blog posting, I will compare the costs of completing litigation services under several different scenarios:

1. Internally within the corporation
2. Externally, on-shore with outside counsel
3. Externally, off-shore with outside counsel
4. Externally, on-shore with a 3rd party service or technology vendor and/or consulting firm
5. Externally, off-shore, with a 3rd party service or technology vendor and/or consulting firm

I predict that some of your will be shocked at the wide variance in price and/or how much money you are leaving on the table.

Labels: ABA, ABA Formal Opinion 08-451, ABA Standing Committee on Ethics and Professional Responsibility, Amercian Bar Association, Litigation Service Providers, Outsourcing

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