Joseph Tate and Emily Plowcha, Cozen O’Connor: Ethical Challenges of Conducting E-Discovery in a Remote Work Environment

Extract from Joseph Tate and Emily Plowcha’s article “Ethical Challenges of Conducting E-Discovery in a Remote Work Environment”

The COVID-19 pandemic has ushered in a new normal—the remote work environment. As organizations transitioned their employees from the traditional office environment to working from home, the use and reliance on technologies both new and old has increased dramatically.  Just as the pandemic has challenged every aspect of our lives, the shift to a remote work environment has significantly impacted e-discovery and the ethical obligations of attorneys in this ever-evolving technological and legal landscape.

Under Rule 1.1 of the ABA Model Rules of Professional Responsibility, “a lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Competency requires a lawyer to “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.” Courts have specifically tied this competency standard to e-discovery. “Just as lawyers have a professional responsibility to keep abreast of changes or developments in the law, it is now clear in this “digital age” that attorneys should have basic competency in working with digital evidence and understand how ESI is created, stored and retrieved.” See United States v. Montague, No. 14-CR-6136-FPG-JWF, 2016 BL 527908 (W.D.N.Y. May 17, 2016) (citing Model Rule 1.1 Comment 8 in footnote); see also City of Rockford v. Mallinckrodt ARD, 326 F.R.D. 489 (N.D. Ill. 2018); see also State v. Ratliff, 2014 ND 156, 849 N.W.2d 183 (July 17, 2014) (concurring opinion cites Rule 1.1 comment 8). As the use of new and varied technologies grows, the burden on lawyers to keep abreast of these developments in the context of e-discovery has also increased.

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