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Ethical Duties Require Intricate Knowledge of Electronic Discovery

Posted on October 2nd, 2014

How Can Plaintiff Trial Attorneys Protect Themselves and Their Clients?

Our plaintiff eDiscovery blog recently wrote a series of posts about the California Bar’s Formal Interim Opinion 11-0004 regarding ethical duties an attorney must be aware of while dealing with electronically stored information (ESI). The opinion warned trial attorneys that if they do not understand ESI, they risk breaching the duty of competence, the duty of confidentiality, the duty to not suppress evidence and the duty of candor.

However, attorneys across the country should also pay attention to this California Bar opinion, as it signals an increasing trend requiring attorneys to arm themselves with understanding and knowledge of issues related to ESI. In fact, the American Bar Association’s Model Rules also has updated its competency requirement: “Lawyers must remain abreast of changes to the law and its practice, including the benefits and risks associated with relevant technology…” Additionally, more case opinions emerge regarding lawyers failing to properly handle ESI and breaching ethical duties.

Of course, the best way to protect yourself if your case involves electronically stored information, email discovery and electronic data is to contact an experienced eDiscovery expert from the very beginning of the case.

ESI Violations Can Also be Ethical Breaches for Trial Attorneys

  • United States ex rel. Ifrah v. Community Health Center of Buffalo[1]: Attorneys were deficient regarding important technical questions surrounding electronic data and email on back-up tapes.[2] (Noting that attorneys dealing with ESI must have an appreciation of relevant technology, or designate an eDiscovery liaison.)
  • Distefano v. Law Offices of Barbara A. Katsos, PC [3]: Failure to preserve electronic documents may also constitute ethical breaches. Case opinion citing the Association of the Bar of the City of New York Committee on Professional and Judicial Ethics, Formal Opinion 2008-1, A Lawyer’s Ethical Obligations to Retain and Provide a Client with Electronic Documents (July 2008)(Stating that an attorney has an ethical duty to retain email and electronic documents stemming from representation, although certain categories of data may fall outside the scope of this retention.)
  • In Re Brown[4]: Attorney cited for breach of duty of candor after a material false statement was made to the court regarding the production of an iPhone 4 for forensic imaging, knowing that the phone was irrevocably lost.
  • Lester v. Allied Concrete[5]: Attorney sanctioned and reported to the Virginia Bar ethics counsel stemming from advising his client to delete certain forms of electronic data, including pictures from a Facebook account.

Avoid Potential Ethical Breaches by Contacting Plaintiff ESI Experts

The California Bar, the American Bar Association and courts throughout the country have agreed that all litigators whose cases involve electronically stored information for discovery must intricately understand the issues. Common issues that arise with eDiscovery include: how and when to implement, carry out and monitor litigation holds; formatting of electronic data; understanding the difference between native files and converted files; search term selection for electronic data; clawback orders and privilege logs; the use of eDiscovery software; issue coding; when and why metadata is important; and more.

Almost all civil cases now include the production of electronic discovery. Don’t be left in the dark and risk breaching ethical duties. Find out more information about how plaintiff electronic discovery experts can protect you and your client.

[1] No. 05-CV-237A(F), W.D.N.Y. August 1, 2012.

[2] U.S. LAW WEEK, June 12, 2012 at 1721-1722.

[3] No. CV 11-2893(JS)(AKT)E.D. N.Y. March 29, 2013.

[4] Cases No. 13-35982, Bankr. Court, S.D. Texas (June 18, 2014)

[5] Case No. CL08-150(Cir.Ct. City of Charleston, VA).

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