September 25, 2013

1. Ethics of E-Discovery Defensible Document Review September 25, 2013 Jennifer Freeman

2. Ethics & Electronic Evidence • Ethical obligations do exist when it comes to e-discovery • Courts are more clearly articulating counsel’s affirmative duty to act competently and diligently • Counsel should expect to be held to a higher standard than ever before

3. Ethics & Electronic Evidence Pension Committee: Low tolerance for unethical behavior • 13 plaintiffs failed to issue timely written litigation holds • Adverse inference and monetary sanctions against the plaintiffs for conducting discovery in “an ignorant and indifferent fashion” See Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010) Commentary on Ethics & E-Discovery • Judge David Waxse on Cooperation and Lawyers Who Act Like Spoiled Children, available at http://e-discoveryteam.com/ • Ethics of Electronic Discovery, a two part essay available at http://e-discoveryteam.com/2012/03/04/ethics-of-electronic-discovery-part-one/ • Lawyers Behaving Badly, 60 Mercer L. Rev. 983 (Spring 2009) • Mancia v. Mayflower Begins a Pilgrimage to the New World of Cooperation, 10 Sedona Conf. J. 377 (2009 Supp.) See Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010)

4. Discussion Overview • The Rules in Relation to E-Discovery • Emerging Technologies • Basic Workflows • Internal Thresholds • Parting Thoughts

5. The Rules In Relation toE-Discovery

6. The Rules • Model Rules of Professional Conduct • Rule 1.1 • Rule 1.3 • Rule 1.6 • Rule 3.2 • Rule 3.3 • Rule 3.4

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

8. Duty of Competence • Keeping abreast of current practice requirements includes “the benefits and risks associated with relevant technology.” • Competence in locating, reviewing and producing ESI in litigation and regulatory work is among the greatest challenges for lawyers today • Counsel’s ability to examine and produce ESI is central to managing discovery in the modern age

9. Duty of Competence: Legal Knowledge & Skill When to hire a consultant: • Any time training and experience of your staff would make you uncomfortable if you had to call them as witnesses • Any time conflictsof interest might really hurt your case • Any time the current workload of your staff would prevent them from focusingon your case • Any time your staff lacks the tools and equipmentto handle the job

10. Duty of Competence: E-Discovery Knowledge is an Obligation • Court found plaintiffs’ counsel “did not understand the technical depths to which electronic discovery can sometimes go” • Counsel has an obligation to search for sources of information to understand where data is stored • Issued monetary sanctions due to counsel’s failure to speak with key figures at the company • In re A & M Florida Props. II, 2010 WL 1418861 (Bkrtcy.S.D.N.Y. Apr. 7, 2010).

11. Rules 1.3 & 3.2: Diligence & Expediting Litigation Rule 1.3A lawyer shall act with reasonable diligence and promptness in representing a client Rule 3.2A lawyer shall make reasonable efforts to expedite litigation consistent with the efforts of the client

12. Diligence & Expediting Litigation • Diligence is impossible unless you adhere to the duty of providing competent representation of your client • “Vigorous advocacy” • Thorough understanding and analysis of facts, law and data set • Not simply knee-jerk opposition to everything the other side proposes • Unnecessary motions and efforts to stonewall discovery violate both duties

13. Rule 1.6: Confidentiality • A lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer… • Comment 16, ABA Model Rule 1.6 Confidentiality of Information

14. Duty of Confidentiality: Privilege Issues • Protecting privilege in the era of electronic discovery is growing increasingly difficult given the volume of data • Counsel should consider entering into a protective order, clawback agreement or quick peek agreement • Counsel should also familiarize themselves with Fed.R.Evid. 502 • Comment 6: Specifically points to changes in technology and how those affect confidentiality

15. Duty of Confidentiality: Attorney Beware • Court found privilege was waived regarding e-mails sent via company e-mail addresses using company computers • Attorney should have been aware client’s employer would be monitoring and accessing e-mail sent to that address since it is now a common practice • AlamarRanch, LLC v. County of Boise, 2009 WL 3669741(D. Idaho. Nov. 2, 2009).

16. Rule 3.3: Candor Toward The Tribunal • A lawyer shall not knowingly: • make a false statement of fact or law… • *** • (3) offer evidence lawyer knows to be false

17. Duty of Candor: Dishonesty Will Cost You • “Distorted representations” of discovery production and accuracy contradicted defendants’ duty of candor to the court • Court ordered defendants to pay $1,000 in sanctions for discovery misconduct • Baez-Eliza v. Instituto Psicoterapeutico de Puerto Rico, 2011 WL 2413051 (D. Puerto Rico June 16, 2011).

18. Rule 3.4: FairnessUnobstructed Process and Access to Evidence A lawyer shall not: (a) unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act…

19. Rule 3.4: FairnessNon-Frivolous Litigation Tactics A lawyer shall not: (d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent efforts to comply with a legally proper discovery request by an opposing party….

20. Courts Require Good Faith Efforts • Plaintiff failed to abide by local rule requiring attorneys to meet and confer in good faith before filing motion to compel • Court warned the parties to “act less like armed combatants and more like highly skilled professionals” going forward • B & B Hardware, Inc. v. Fastenal Co., 2011 WL 2115546 (E.D. Ark. May 25, 2011).

21. Courts are Losing Patience for Lack of Cooperation • Attorneys “embarked upon a course entailing a conscious effort to maximize litigation and to make certain [it] was as time-consuming, difficult, unpleasant, and expensive as possible” • Two attorneys were held personally liable in the amount of $3,750 each, to be paid without reimbursement from the law firms or clients. • Alford v. Rents, 2010 WL 4222922 (S.D. Ill. Oct. 20, 2010).

22. Emerging Technologies

23. Emerging Technologies • Strategic Searching • Conceptual Searching and Clustering • Early Data Analysis • Advanced Analytics • Predictive Coding

24. High-Level Workflows

25. Electronic Discovery Reference Model PROCESSING REVIEW PRESERVATION ANALYSIS INFORMATION MANAGEMENT IDENTIFICATION PRODUCTION PRESENTATION COLLECTION VOLUME RELEVANCE Based on Electronic Discovery Reference Model (EDRM), www.edrm.net, used with permission

26. Early Workflows Collect Broadly Review Everything Targeted Collection Review Everything Reducing universe of potentially producible data during IDENTIFICATIONorCOLLECTIONphases

27. Evolving Workflows Collect Broadly Search Terms Review Everything Collect Search Terms Priv Terms Produce w/ Clawback Identify Sample Terms Negotiate Review ID With Strategic Search Collect Review Everything Collect SBVR ECA Analytics Review Remainder Reducing universe of potentially producible data during PROCESSING or ANALYSIS phases

28. Advanced Workflows Collect Preview Noise Filter Code Ref Set Exclude Validate Review Remainder Collect Random Sample Train Classifier Assess PR Targets Finish Classifier Apply Coding Sample Validate Reducing universe of potentially producible data during ANALYSISandREVIEWphases

29. Electronic Discovery Reference Model PROCESSING REVIEW PRESERVATION ANALYSIS INFORMATION MANAGEMENT IDENTIFICATION PRODUCTION PRESENTATION COLLECTION VOLUME RELEVANCE Based on Electronic Discovery Reference Model (EDRM), www.edrm.net, used with permission

30. Defensibility The best technology in the world cannot compensate for lack of expertise and sound process.

31. Internal Thresholds

32. What Can We Handle? • Enterprise Software • Internal Expertise • Internal Process Development • Outside Counsel • Vendors and Consultants LITIGATION PROFILE |RISK TOLERANCE |COMPLIANCE OBLIGATIONS

33. Parting Thoughts

34. Parting Thoughts Cooperation is paramount- Zealous Advocacy does not amount to a “fight everything” mentality • Judge Waxse: Lawyers as “spoiled children” in constant need of adult supervision through a judge. • Solution: Enforce cooperative behaviors through MRPC See David J. Waxse, Cooperation—What is it and Why do it?, XVIII Rich. J.L. & Tech. 8 (2012); Uncooperative behavior is per se unethical • Cooperation and principles of fair play at the foundation of our professional duties as lawyers • Inability to cooperate is one of the primary causes of rising e-discovery costs See The Sedona Conference, Cooperation Proclamation, 10 Sedona Conf. J. 331 (2009 Supp.)

35. Q&A