E-DISCOVERYBASICS AND ETHICS

C H A D M A I N , P E R C I P I E N T

J I M D O P P K E , R O B I N S O N L A W G R O U P

ETHICAL ISSUES IN E-DISCOVERY

• Rule 1.1 – Competence• Not just knowing about computers or metadata• Being able to implement knowledge on a client's

behalf to prevent mistakes or exposure

ETHICAL ISSUES IN E-DISCOVERY

• Rule 1.6 – Confidentiality of Information• “information relating to the representation of a

client”• Expanded from prior definition

ETHICAL ISSUES IN E-DISCOVERY

• Rule 3.3 – Candor Toward the Tribunal• What kind of information gathered from e-

discovery is being presented?• What if information produced in e-discovery turns

out to be something other than what was expected or initially represented?

• What if it contains false information?• Duty to take action kicks in when lawyer knows of

falsity of evidence or “comes to know” of it

ETHICAL ISSUES IN E-DISCOVERY

• Rule 5.3 – Responsibilities Regarding Non-Lawyer Assistants• Make reasonable efforts to ensure that the firm has

in effect measures giving reasonable assurance that the conduct of:• A non-lawyer employed by, retained by, or

associated with the lawyer• Is compatible with the professional obligations

of the lawyer

ETHICAL ISSUES IN E-DISCOVERY

• Rule 5.3 – Responsibilities Regarding Non-Lawyer Assistants• A lawyer having direct supervisory authority over

the non-lawyer shall make reasonable efforts• to ensure that the person's conduct is compatible

with the professional obligations of the lawyer

ETHICAL ISSUES IN E-DISCOVERY• Rule 5.3 – Responsibilities Regarding Non-Lawyer

Assistants• Shall be responsible for the conduct of such a person

that would be a violation of the RPCs if engaged in by a lawyer IF:

• Lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; OR

• Lawyer is a partner or has comparable managerial authority or has direct supervisory authority AND

• Knows of the conduct at a time when its consequences can be mitigated or avoided

• Fails to take reasonable remedial action

E-DISCOVERY CASES

• J-M Manufacturing v. McDermott, Will & Emery, et al. (CA)

• Filed in Los Angeles, removed to federal, then back to state

• McDermott represented in underlying qui tam False Claims Act case

• Supervised and outsourced large e-discovery project

E-DISCOVERY CASES

• J-M Manufacturing v. McDermott, Will & Emery, et al.• Problem: Insufficient attorney-client privilege filter• Thousands of privileged documents produced to

government• Successfully retrieved• But: wound up in hands of relators anyway (how?)• Produced again by successor law firm

E-DISCOVERY CASES

• Nat'l Day Laborer Organizing Network v. U.S. Immigration and Customs Enforcement Agency (S.D.N.Y.)

• Gov't defendant produced “static images” of spreadsheets, etc. (PDFs)

• No metadata included because “not asked for”• Court: “lame excuse”• Metadata/”load files” must also be produced in order

to make the production searchable and therefore reasonably usable

E-DISCOVERY CASES

• Carrillo v. Schneider Logistics (C.D. Cal.)• Failing to conduct a reasonably diligent search• Improperly withholding responsive documents• Failing to take adequate steps to ensure preservation

E-DISCOVERY CASES

• Carrillo v. Schneider Logistics (C.D. Cal.)• D's employees' deps: continuing to delete emails and

had never been instructed to preserve them• Repeatedly said diligent searches had been conducted

but “found” more materials• Court required defendant to retain a mutually agreed-

upon vendor to search & collect ESI• Defendant allowed to review documents for privilege

& confidentiality• BUT: no documents could be withheld on grounds of

relevance

RISK MANAGEMENT TIPS

Start the processOf determining the processEarly!

RISK MANAGEMENT TIPS

RISK MANAGEMENT TIPS

• Stay up on technology• And terminology• Sedona Conference

RISK MANAGEMENT TIPS

• Seek outside help

• Before it gets out of hand!

QUESTIONS?

Jim Doppke

Robinson Law Group, LLC

333 West Wacker Drive, Suite 450

Chicago, IL 60606

312.676.9878

jdoppke@robinsonlawillinois.com

Chad Main

Percipient, LLC

800.971.2291

info@percipient.co