Lawyers and their clients risk running afoul of ethical obligations at various points in the e-discovery process. Some of the most common missteps are listed below.
- Losing potentially relevant data when employees leave or when upgrading devices or software
Litigation parties should be proactive about collecting and/or preserving potentially relevant material. Leaving preservation in the hands of each custodian can lead to loss of data or metadata.
- Failing to understand the limits of the FRCP and FRE 502 in protecting confidential and proprietary client information
Most 502(d) orders protect against inadvertent disclosures of privileged materials, but do not protect against inadvertent disclosure of confidential or proprietary information.
- Disclosing non-required information inadvertently
Before sharing materials with another party, double check the production and encrypt or password-protect any confidential or proprietary information. If inadvertent disclosures do occur, take affirmative steps to claw back inadvertently produced information.
- Falling behind on changes in the law or technology
An attorney’s duty of competence under ABA Model Rule 1.1 requires attorneys to “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” Attorneys should take reasonable steps to understand relevant technology and reach out to competent outside counsel or consultants when necessary.
- Neglecting to recognize additional risks relating to remote work
The increase in remote work has led to expanded use of personal devices for business purposes and alternative technologies for communication and document sharing. These new technologies carry risk and expand the burden on litigation parties to ensure that relevant information is secure, properly preserved, collected, and produced.
For additional information, see Avoiding Common Ethical Pitfalls in E-Discovery by David R. Cohen and Bradley C. Whitecap.