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Ethics in the era of electronic evidence: to represent your clients effectively and ethically, you need a good grasp of the e-discovery process - and the obligations it creates for you and opposing counsel.

Article Excerpt
Attorneys are bound by codes of professional conduct and must conform to ethical standards governing almost every area of law. Considering the role technology plays in the world today, lawyers must understand and strategically integrate electronic evidence into their cases to represent their clients effectively and ethically.

Litigators who ignore the fact that more than 90 percent of potentially discoverable information is generated and stored electronically risk facing dissatisfied clients, accusations of ethical violations, malpractice suits, and judicial sanctions for failure to comply with electronic evidence obligations. (1) As technology advances and clients' and opponents' systems become more complex, lawyers' duties in discovery also evolve rapidly.

The Model Rules of Professional Conduct state: "A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation." (2) In addition, most states' professional responsibility rules require attorneys to perform legal services with diligence, competence, faithfulness, and good judgment. In today's digital era, this duty of competence requires you to educate yourself and your clients about electronic discovery issues before a complaint or answer is ever filed.

Many members of the plaintiff bar may view electronic discovery--collecting, reviewing, and producing electronically stored information such as e-mail, word-processing documents, spreadsheets, and databases--as primarily defense counsel's problem. After all, defendants generally are the parties ordered to preserve and produce such information. But plaintiff lawyers have e-discovery duties as well. Nearly every set of document requests and interrogatories propounded, for example, seeks (or at least should seek) to uncover e-mail and other electronically stored gems.

Ethical obligations associated with electronic evidence generally fall into three categories:

* a duty to understand how to ask for and uncover smoking-gun documents and other powerful pieces of e-evidence

* a duty to advise clients of adequate preservation protocols

* a duty to use technology to zealously advocate for clients' interests, such as using high-tech innovations to make document review and other tasks more cost-efficient.

Discovery requests

The Federal Rules of Civil Procedure no longer permit discovery on matters that merely may lead to the discovery of admissible information? Rather, you must seek specific, relevant information that relates to the claims or defenses of any party? As with discovery of paper-based documents, requests for electronic documents should not be phrased too broadly. Narrowly tailored requests help you avoid an "overly broad and unduly burdensome" objection and show the court that your discovery is not a "blind fishing expedition." If you keep your requests carefully tailored, opposing counsel is less likely to retaliate with broad and burdensome discovery requests of their own.

Because a large volume of electronic evidence may exist, a narrowly tailored request can increase your chances of actually receiving and identifying the most sought-after information. As the defendant produces the relevant electronic information, you can expand your requests. The court probably will support further discovery efforts...

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