Ethics in Today’s World: Managing ESI Under the Federal Rules of Civil Procedure Presented by: Rachael Zichella of Taylor English Duma LLP February 7, 2018

ABA Model Rule 1.1 - Competence A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Comment 8 to ABA MR 1.1 “To maintain the requisite knowledge and skill, a lawyer should 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.”

Georgia Rule 1.1 - Competence A lawyer shall provide competent representation to a client. Competent representation as used in this Rule means that a lawyer shall not handle a matter which the lawyer knows or should know to be beyond the lawyer's level of competence without associating another lawyer who the original lawyer reasonably believes to be competent to handle the matter in question. Competence requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Georgia Rule 2.1 – Lawyer as Advisor In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. A lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.

Comment 1 to Georgia Rule 2.1 “A client is entitled to straightforward advice expressing the lawyer's honest assessment. Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront. In presenting advice, a lawyer endeavors to sustain the client's morale and may put advice in as acceptable a form as honesty permits. However, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.”

Comment 2 to Georgia Rule 2.1 In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors that may be relevant to the client's situation. Advice couched in narrowly legal terms may be of little value to a client, especially where practical considerations, such as cost or effects on other people, are predominant. Purely technical legal advice, therefore, can sometimes be inadequate. It is proper for a lawyer to refer to relevant moral and ethical considerations in giving advice.

Georgia Rule 3.2 – Expediting Litigation A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.

Comment 1 to Georgia Rule 3.2 Dilatory practices bring the administration of justice into disrepute.

Comment 2 to Georgia Rule 3.2 The reasonableness of a lawyer's effort to expedite litigation must be judged by all of the controlling factors. "Reasonable efforts" do not equate to "instant efforts" and are sufficient if reasonable under the relevant circumstances.

Georgia Rule 3.4 – Fairness to Opposing Party and Counsel A lawyer shall not 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.

Comment 1 to Georgia Rule 3.4 The procedure of the adversary system contemplates that the evidence in a case is to be marshaled competitively by the contending parties. Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like.

Georgia Rule 3.4 – Fairness to Opposing Party and Counsel (continued) Documents and other items of evidence are often essential to establish a claim or defense. Subject to evidentiary privileges, the right of an opposing party, including the government, to obtain evidence through discovery or subpoena is an important procedural right. The exercise of that right can be frustrated if relevant material is altered, concealed or destroyed.

Comment 2 to Georgia Rule 3.4 Applicable law in many jurisdictions makes it an offense to destroy material for purpose of impairing its availability in a pending proceeding or one whose commencement can be foreseen. Falsifying evidence is also generally a criminal offense. Paragraph (a) applies to evidentiary material generally, including computerized information.

2015 Year End Report of the Federal Judiciary On Cooperative Early Case Planning Strategies: “Rules 16 and 26(f) now require the parties to reach agreement on the preservation and discovery of ESI in their case management plan and discovery conferences.”

2015 Year End Report of the Federal Judiciary On Common Sense and Proportionality: “The amended rule states, as a fundamental principle, that lawyers must size and shape their discovery requests to the requisites of the case …. The key here is careful and realistic assessment of actual need.”

2016 Year End Report of the Federal Judiciary On Involvement of the Courts: “[T]he Judicial Conference – the policy-making body of the federal courts – has revised the Federal Rules of Civil Procedure to emphasize the judge’s role in early and effective case management. These reforms encourage district judges to meet promptly with lawyers after the complaint is filed, confer about the needs of the case, develop a case management plan, and expedite resolution of pretrial discovery disputes.”

2015 Year End Report of the Federal Judiciary On Early Resolution of Disputes: “The amendments also identify techniques to expedite resolution of pretrial discovery disputes, including conferences with the judge before filing formal motions in aid of discovery.”

FRCP 1 - Scope and Purpose These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.

Rule 26(b)(1) - Scope in General Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Discovery Must Be Proportional to the Needs of the Case Considering: The importance of the issues; The amount in controversy; The parties’ relative access to relevant information; The parties’ resources; The importance of the discovery in resolving the issues; and Whether the burden or expense of the proposed discovery outweighs its likely benefit.

Rule 26(d)(2)(A) – Early Rule 34 Requests Rule 26(d)(2) - Early Rule 34 Requests (A) Time to Deliver. More than 21 days after the summons and complaint are served on a party, a request under Rule 34 may be delivered; (i) to that party by any other party, and (ii) by that party to any plaintiff or to any other party that has been served. (B) When Considered Served. The request is to be considered to have been served at the first Rule 26(f) conference.

Comment to Rule 26 Delivery of Early Rule 34 requests to another party may be made any time after service even though the parties haven’t yet had the Rule 26(f) conference. The delivery will not count as service, however, because the requests are considered served at the first Rule 26(f) conference. This rule is designed to facilitate focused discussion during the Rule 26(f) conference; it may even facilitate changes to the requests based on conversations at the conference.

Rule 34(b)(2)(A) Time to Respond. The party to whom the request is directed must respond in writing within 30 days after being served or—if the request was delivered under Rule 26(d)(2)—within 30 days after the parties’ first Rule 26(f) conference. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court.

Rule 26(f) (3) Discovery Plan. A discovery plan must state the parties’ views and proposals on: ***** (C) any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produce; (D) any issues about claims of privilege or of protection as trial-preparation materials, including—if the parties agree on a procedure to assert these claims after production—whether to ask the court to include their agreement in an order under Federal Rule of Evidence 502.

Rule 34(b)(2)(B) & (C) Response to Requests & Objections (B) Responding to Each Item - for each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons. The responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection. The production must then be completed no later than the time for inspection stated in the request or another reasonable time stated in the response. (C) Objections - An objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.

Comment to Rule 34(b)(2)(B) “….[I]f [an] objection recognizes that some part of the request is appropriate the objection should state the scope that is not overbroad. Examples would be a statement that the responding party will limit the search to documents or electronically stored information created within a given period of time prior to the events in suit, or to specified sources. When there is such an objection, the statement of what has been withheld can properly identify as matters ‘withheld’ anything beyond the scope of the search specified in the objection.”

Comment to Rule 34(b)(2)(B) “The response to the request must state that copies will be produced. The production must be completed either by the time for inspection specified in the request or by another reasonable time specifically identified in the response. When it is necessary to make the production in stages the response should specify the beginning and end dates of the production.”

Comments to Rule 34(b)(2)(C) “The producing party does not need to provide a detailed description or log of all documents withheld, but does need to alert other parties to the fact that documents have been withheld and thereby facilitate an informed discussion of the objection. An objection that states the limits that have controlled the search for responsive and relevant materials qualifies as a statement that the materials have been ‘withheld.’”

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