Avoiding Sanctions & Surprises The ethics of discovery Kat Meyer, Esq. President of Conquest eDiscovery, LLC

What am I supposed to be doing?

How do I do it?

What am I supposed to be doing? How do I do it? Why is it important?

 Be Competent

“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…”

“[t]o 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.” “Comment 6 already encompasses an obligation to remain aware of technology that affects law practice, but the Commission concluded that making this explicit…would offer greater clarity.”

Know the basics of how technology is affecting the legal field

KNOW the rules related to e-discovery

Know the basics of how technology is affecting the legal field KNOW the rules related to e-discovery KNOW about your client

Data Maps (Good Luck) Custodian Interviews IT Interviews

“There is no more obvious and critical source of information in the 21 st century than a company’s accounts. Plaintiff’s counsel’s failure to identify and produce this discovery in a timely fashion and in an acceptable form and manner while suggesting –if not misleading the defendants—that it had identified responsive documents is sanctionable…”

Know the basics of how technology is affecting the legal field KNOW the rules related to e-discovery KNOW about your client KNOW what you don’t know & Get help

“MS & Co. gave no thought to using an outside contractor to expedite the process of completing the discovery, though it had certified completion months earlier; it lacked the technological capacity to upload and search the data at that time; and would not attain that capacity for months…” Coleman Holdings, Inc. v. Morgan Stanley

If you use a vendor, pick the right one

What experience does the vendor have? Have they voluntarily agreed to the EDRM ethical rules for vendors What are their quality control processes How is their security & infrastructure set up?

 Be Competent  Certify Responsibly

FRCP 26(g): The attorney must sign all disclosures certifying the disclosures are complete and correct at the time they are made “to the best of the person’s knowledge, information, and belief formed after reasonable inquiry.”

“While, of course, it is true that counsel need not supervise every step of the document production process….the rule expressly requires counsel’s responses to be made upon reasonable inquiry under the circumstances. Here, there is no doubt whatsoever that counsel failed to comply with that standard…” Metropolitan Opera v. Local 100

“…defendants took a backseat approach and instead let the process proceed through a vendor….[s]uch a hands-off approach is insufficient…Defendant’s cannot place the burden of compliance on an outside vendor and have no knowledge, or claim no control, over the process.” Peerless Industries, Inc. v. Crimson Av, LLC

 Be Competent  Certify Responsibly  Be Diligent

 MRPC 3.4: a lawyer shall not unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value.” 3.4(a)

 A lawyer shall not “…fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party.” 3.4(d)

 Be Competent  Certify Responsibly  Be Diligent  Supervise & avoid unauthorized practice of law

MRPC 5.3: there is an ethical duty on counsel to supervise non-attorneys retained in the course of litigation

DC Bar Opinion 21-12: To avoid the unauthorized practice of law, service providers are limited to administrative, technical, and logistical tasks

Be involved Know what the vendor is doing

Be involved Know what the vendor is doing Supervise and QC Review

Review QC  Not Relevant Sample Set  Relevant Sample Set  Sample Privilege Terms in relevant set

Be involved Know what the vendor is doing Supervise and QC Review QC productions

Production QC  Correct number of documents?  Branding correct?  Redactions present?  Redacted text removed from text file?

The Gist: 1.Know your ethical responsibilities 2.If you aren’t competent when it comes to technology, find someone who is 3.Make sure you understand the process before you tell the court it is complete 4.Supervise, Supervise, Supervise 5.You can’t abdicate your ethical responsibilities!

Avoiding Sanctions & Surprises The ethics of discovery Kat Meyer, Esq. President of Conquest eDiscovery, LLC