Ethical Issues in E-discovery Across the Globe Jonathan Sachs, Esq. Robert Jones, EMEA

Proprietary and Confidential | Kroll Ontrack Overview  Introduction: Today’s Global Ediscovery Challenges  Ediscovery: Professional Rules of Conduct  Considerations: Cultural and Practical Considerations  Issues: New and Emerging Technologies 2

Introduction: Today’s Global Ediscovery Challenges 3

Proprietary and Confidential | Kroll Ontrack 4 Common vs. Civil Law Civil law Common law Sharia law Mixed law

Proprietary and Confidential | Kroll Ontrack 5 Jurisdictional Ediscovery Rules | UK  Main differences between US and UK: »Narrower scope of discovery allowed in the UK: –UK CPR Rule 31.6: requires disclosure of documents on which the party relies or which affect “the case” »In the UK, there is the obligation to proactively produce clients’ relevant documents to opponents »Proportionality standards more defined in the UK

Proprietary and Confidential | Kroll Ontrack 6 Jurisdictional Ediscovery Rules | U.S.A.  Main differences between US and UK: »Broader scope of discovery allowed in the US: –US FRCP 26(b)(1): “any matter, not privileged, which is relevant to the subject matter in the pending action…” »In the US, lawyers must request opponent’s relevant documents »Proportionality standards less defined

Ediscovery: Professional Rules of Conduct 7

Proprietary and Confidential | Kroll Ontrack Model Rules | Integrity/Competence 8  Guidelines vary across international borders, but Professional Conduct Rules all have the same fundamental basis Trust & Integrity 2.2 Europe Competence 1.5 England U.S.A 1.1 Competence  Competence – counsel should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology…”  Integrity in the Digital Age - it is professional misconduct for a lawyer to engage in acts that would overlook investigation into new and developing technologies

Proprietary and Confidential | Kroll Ontrack Model Rules | Candor/Fairness Standard 9 Ireland 2.2 Legal Standard Fairness 3.3 England 3.3 Candor U.S.A  Candor – counsel should be open, frank and honest in communicating the ediscovery process to clients and keep clients up to date on potential sanctions and costs  Fairness – counsel protects the client’s best interests, which includes careful and thorough ediscovery protocols

Proprietary and Confidential | Kroll Ontrack Scott Adams, Inc./Dict. by UFS, Inc. 10 Model Rules | Fairness

Proprietary and Confidential | Kroll Ontrack Model Rules | Confidentiality/Independence U.S.A Confidentiality England 1.2 Service Ireland 1.3 Core Values 2.1 Independence Europe  Confidentiality – the client and counsel relationship is confidential, where recipient of information can lead to efficient counseling of clients in the proper procedures of retaining and maintaining electronic data for discovery  Values and Service – counsel should exercise honesty and independence to provide clients with services that best protect their interests in the ediscovery matter

Considerations: Cultural and Practical Considerations 12

Proprietary and Confidential | Kroll Ontrack 13 Collecting Data Scattered in Different Countries

Proprietary and Confidential | Kroll Ontrack 14 Collecting Data from Different Countries  Consider employees’ groups and unions. Industrial action is not unheard of  Be aware of cultural differences in working hours and holidays  Large quantities of paper (compared to electronic docs) in regions such as Middle East and Africa  There can be a need for security depending on country and circumstances  Cloud and multiple devices have made this more complex  ADVICE - LOCAL EXPERTISE IS ESSENTIAL

Proprietary and Confidential | Kroll Ontrack Don’t Go It Alone – Key Problem Areas 15 Procurement IT / Forensic Data Recovery Document Review Hedrich v. Standard Bank London [2008] EWCA Civ 905

Proprietary and Confidential | Kroll Ontrack 16 Reviewing Documents in Multiple Languages

Proprietary and Confidential | Kroll Ontrack 17 Complying with Data Protection and Privacy Laws Restricting Data Transfer Across Borders

Proprietary and Confidential | Kroll Ontrack 18 Adopting a Seamless Approach to Processing and Review Throughout Different Countries

Proprietary and Confidential | Kroll Ontrack 19 Dealing with Clients with Different Ediscovery Experience Levels in Their Countries

Proprietary and Confidential | Kroll Ontrack Issues: New and Emerging Technologies

Proprietary and Confidential | Kroll Ontrack Social Networking & Blogs  Use of social networking sites and blogs creates potential for ethical violations or disciplinary action for misconduct »Raises confidentiality, integrity and propriety issues »Attorneys cannot “friend under false pretenses” to gain access to profiles and information otherwise kept private 21

Proprietary and Confidential | Kroll Ontrack Know How to Counsel Your Client  Caution clients against altering or destroying social media materials that may be relevant to the case  Counsel clients about using social media prudently  Monitor their use to ensure they don't jeopardize the case  Will your clients follow your sage counsel? Who knows? Make sure you confirm the advice in writing 22

Proprietary and Confidential | Kroll Ontrack Think before You Tweet

Proprietary and Confidential | Kroll Ontrack Mobile | Legal Teams Grapple with BYOD 24 Legal professionals surveyed about the number of ediscovery matters involving BYOD data in 2014 Kroll Ontrack Ediscovery Trends Survey, 2014

Proprietary and Confidential | Kroll Ontrack What’s Next | The Internet Of Things (IoT)  The Internet of Everything: A network of physical objects accessed via the Internet »4.9 billion connected things will be in use in 2015 (up 30 percent from 2014) »IoT devices will reach 25 billion by 2020  IoT is “a powerful force for business transformation, and its disruptive impact will be felt across all industries and all areas of society.” Gartner, Inc. 25

Proprietary and Confidential | Kroll Ontrack What’s Next | The Internet Of Things (IoT) 26 Legal professionals surveyed about readiness for the IoT revolution Kroll Ontrack Ediscovery Trends Survey, 2014

Proprietary and Confidential | Kroll Ontrack Parting Thoughts  Around the world, the connection between ediscovery and current ethics rules is growing stronger  To ensure you are upholding the oath integral to the legal profession in any global jurisdiction, develop a stronger understanding of ediscovery and its interplay with ethical obligations 27

Proprietary and Confidential | Kroll Ontrack 28 Jonathan Sachs, Esq. Director, Strategic Markets rd Avenue New York, NY Cell: | NY Office Direct: Robert Jones, EMEA Managing Legal Consultant Nexus, 25 Farringdon Street London, EC4A 4AB Mobile: +44 (0) | Office: +44 (0)