Ethics and competence issues abound in e-discovery, expert panelists say

If you think e-discovery is strictly about data collection, document review, litigation holds and other technical challenges, think again. Ethics is a big and growing part of the e-discovery field, and success requires a willingness to confront problems of professional conduct where the rights and wrongs are anything but clear, such as:

• Posting a deposition on YouTube
• “Friending” an adverse witness on Facebook
• "Friending" a lawyer who appears before you when you’re a judge seeking re-election
• Advertising yourself online as a "Super Lawyer"
• Violating foreign privacy laws to avoid US e-discovery sanctions
• Controlling access to privileged documents that reside in the cloud
• Handling client matters laden with e-discovery when the lawyer is untrained in e-discovery practices

Three uniquely equipped lawyers--former Florida Supreme Court Chief Justice Arthur J. England Jr., past chairman of the American Bar Association’s National Institute on E-Discovery John Barkett, and pioneer e-discovery educator and thought-leader William Hamilton—tackled these issues and fielded tough questions from a large audience of attendees at the ACEDS 2011 E-Discovery Conference in Hollywood, Florida, on March 25.

Arthur England, now a shareholder with Greenberg Traurig in Miami, probed issues explored by Hamilton and Barkett, such as social media and metadata ethics, protection of privilege, ethical issues in cloud computing for providers and users, and the obligation to provide transparency among opposing parties. 

“Who thinks it’s OK for a lawyer to ask someone in the office to ‘friend’ a prospective witness on Facebook so you can look at their page?” John Barkett asked the audience. Later, he followed with: “Can you ethically post a witness’ deposition on YouTube?”

Barkett used Qualcomm v. Broadcom to illustrate a lawyer’s duty of oversight. In the case, lawyers for Qualcomm failed to find and produce 46,000 responsive documents before trial, and did not tell the court or Broadcom of their existence until after the trial commenced.  The judge said the lawyers failed in their duty of oversight in not finding these documents, and ordered sanctions.

Competence is the fundamental ethical issue in e-discovery, William Hamilton, a founding partner with Quarles and Brady in Tampa, told the audience.  Hamilton said technology is transforming the way discovery is handled, and litigators must master the basics of electronically stored information (ESI), or be subject to the proliferating sanctions for e-discovery violations.

Most state bars and the ABA Model Rules of Professional Responsibility say, "A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."

If a case requires substantial knowledge of e-discovery, the lawyer who is a novice in the field must seek the help of more experienced co-counsel, Hamilton said.

The session concluded with a 30-minute question and answer exchange between the panelists and the attendees. As part of their conference materials, attendees received a CD with speaker presentations and other written works and resources, and will have access to additional material from the panelists on a special post-conference website.

 “Doing Things Right Means Doing Them Ethically –E-Discovery the Principled Way” was one of 17 panels of the ACEDS 2011 Annual E-Discovery Conference, held at the Westin Diplomat March 23-25 in Hollywood, Florida.