the ethics of electronic

Course Handbook Series Number H-1227
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The Ethics of Electronic
Chair Ronald J. Hedges
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Professional Responsibility and Conduct, Formal Opinion No. 2015-193 ..................................................................... 23
2. State Bar of Michigan, Ethics in the COVID-19 Pandemic ............. 33 3. The Sedona Conference, Selected Recent Sedona
Conference Working Group Series Publications (May 2021) ...................................................................................... 41
4. Ariana J. Tadler, Kevin F. Brady and Karin Scholz Jenson,
The Sedona Conference “Jumpstart Outline”: Questions to Ask Your Client and Your Adversary to Prepare for Preservation, Rule 26 Obligations, Court Conferences and Requests for Production (March 2016) ......................................... 115
5. The Ethics of Electronic Information: Competence,
Confidentiality, and Other Ethical Conundrums (Substantive Outline) (2020) ......................................................... 133
Ronald J. Hedges Dentons US LLP
6. The Sedona Conference, Selected Recent Sedona
Conference Working Group Series Publications (January 2020) .............................................................................. 149
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7. NYSBA, Key Takeaways from the Cybersecurity Thought Leadership Conference of the Technology and the Legal Profession Committee of the New York State Bar Association (February 3, 2020) ..................................................... 197
8. NYSBA, Cybersecurity Alert: Tips for Working Securely
While Working Remotely, Issued by the Technology and the Legal Profession Committee of the New York State Bar Association (March 12, 2020) ....................................................... 227
9. NYSBA, Cybersecurity Alert: Tips for Purchasing Cyber
Insurance, Issued by the Technology and the Legal Profession Committee of the New York State Bar Association (July 6, 2020) ............................................................. 241
10. Pennsylvania Bar Association, Committee on Legal Ethics
and Professional Responsibility, Formal Opinion 2020-300, Ethical Obligations for Lawyers Working Remotely (April 10, 2020) ............................................................................. 253
11. The Sedona Conference, The Sedona Conference
Commentary on the Effective Use of Federal Rule of Evidence 502(d) Orders (June 2021 Public Comment Version) ......................................................................................... 271
12. Melanie L. Cyganowski, Erik B. Weinick and Aisha Khan,
Protecting Privilege in Cyberspace: The Age of COVID-19 and Beyond, New York State Bar Association (January 15, 2021), available at: https://nysba.org/protecting-privilege-in- cyberspace-the-age-of-covid-19-and-beyond/ .............................. 275
13. Stengart v. Loving Care Agency, Inc., 201 N.J. 300
(2010) ............................................................................................ 285 14. Harleysville Insurance Company v. Holding Funeral Home,
Inc., No. 1:15CV00057, 2017 WL 4368617 (W.D. Va. Oct. 2, 2017) ................................................................. 301
15. Carrie H. Cohen and Chan-young Yang, New Normal of
Remote Lawyering Has Ethical Implications, New York State Bar Association (January 15, 2021), available at: https://nysba.org/ethical-duties-related-to-remote-working .......... 321
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16. NYSBA, Cybersecurity Alert: Discovery of Recordings from Virtual Meeting Platforms, Issued by the Technology and the Legal Profession Committee of the New York State Bar Association (June 25, 2020) ......................................................... 329
17. Supreme Court of New Jersey, Advisory Committee on
Professional Ethics, ACPE Opinion 734, Ethical Responsibilities of Lawyers Who Use Third Party Vendors to Electronically File Documents (September 20, 2018) .............. 341
Professional Ethics, ACPE Opinion 738, Responding to Negative Online Reviews (December 9, 2020) ............................. 347
19. The Florida Bar, The Henry Latimer Center for
Professionalism, Best Practices for Professional Electronic Communication (Updated May 2020) .......................... 355
20. The State Bar of California, Standing Committee on
Professional Responsibility and Conduct, Formal Opinion No. 2016-196 ................................................................... 385
21. Judiciary Addresses to Cybersecurity Breach: Extra
Safeguards to Protect Sensitive Court Records (January 6, 2021) .......................................................................... 397
22. Highly Sensitive Document Procedures and Court Orders
(January 25, 2021) ........................................................................ 403 23. NYSBA, Social Media Ethics Guidelines of the Commercial
and Federal Litigation Section of the New York State Bar Association (June 20, 2019) ......................................................... 411
Professional Ethics, ACPE Opinion 735, Lawyer’s Use of Internet Search Engine Keyword Advertising (June 25, 2019) ............................................................................. 469
INDEX ................................................................................................... 477 Senior Program Attorney: Dana M. Berman
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AGENDA
1:45 Competence and Supervision Issues Arising out of Electronic Information
The “technology” amendments to the Rules of Professional Conduct o What has NY done? o What has NJ done?
The baseline knowledge a competent attorney should have o CA Ethics Opinion 2015-193 and the handling of electronically
stored information o Duty to supervise lawyers and non-lawyers
Competence in dealing with new technologies o The ethical challenges of integrating artificial intelligence into the
practice of law o How the ethically competent attorney should respond to a new
technology The ethical issues related to the remote practice of law that have arisen
due to the impact of COVID-19 Conway Epko, Hon. Leo M. Gordon, Ronald J. Hedges, Hon. Tanya R. Kennedy, Lori B. Leskin, Amy Walker Wagner
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2:45 Protecting Attorney-Client Privilege, Work Product, and Client Confidences When Working with Electronic Information
Overview of ethical obligations in the representation of clients and in litigation
The risks of waiver and other loss of confidential information Relationship of ethical obligations under the Professional Rules of
Conduct to Federal Rule of Civil Procedure 26(b)(5)(b) and Federal Rule of Evidence 502
The ethical issues related to the remote practice of law that have arisen due to the impact of COVID-19
Conway Epko, Hon. Leo M. Gordon, Ronald J. Hedges, Hon. Tanya R. Kennedy, Lori B. Leskin, Amy Walker Wagner
3:45 Networking Break
4:00 Ethical Implications of Social Media and Electronic Filing
Application of the Rules of Professional Conduct to an attorney’s use of social media
What attorneys may and may not advise their clients concerning the ethical uses of social media
Other legal ethics’ “do’s and don’ts”, including communicating with judges The ethical issues related to the remote practice of law that have arisen
due to the impact of COVID-19 Conway Epko, Hon. Leo M. Gordon, Ronald J. Hedges, Lori B. Leskin, Amy Walker Wagner
5:00 Adjourn
Conway Epko Director, Associate General Counsel Brex New York City
Hon. Leo M. Gordon Senior Judge United States Court of International Trade New York City
Hon. Tanya R. Kennedy Associate Justice Appellate Department, First Division New York City
Lori B. Leskin Arnold & Porter New York City
Amy Walker Wagner Assistant General Counsel, Litigation Horizon Blue Cross Blue Shield of New Jersey Newark, NJ
Senior Program Attorney: Dana M. Berman
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1221 Avenue of the Americas, New York, NY 10020 [email protected]
Ronald J. Hedges, J.D., is a Senior Counsel with Dentons US LLP. He served as a United States Magistrate Judge in the District of New Jersey from 1986 to 2007. Mr. Hedges is a frequent writer and speaker on various topics related to, among other things, electronic information and is the lead author of Managing Discovery of Electronic Information: A Pocket Guide for Judges, Third Edition (Federal Judicial Center: 2017), https://www.fjc.gov/content/323370/managing-discovery-electronic-information-third- edition. He is also the Co-Senior Editor of The Sedona Conference Cooperation Proclamation: Resources for the Judiciary, Third Edition, https://thesedonaconference.org/sites/default/files/Judicial%20Resources%20publicatio n%20announcement.pdf. His full biography is available at https://www.dentons.com/en/ronald-hedges.
[email protected] mobile: 917.750.9198
Conway Ekpo is a Director and Associate General Counsel at Brex, a unicorn B2B fintech startup that uses innovative technology to provide corporate credit cards and expense tracking software to tens of thousands of other venture-backed startups and small businesses. In addition, he is also an adjunct law professor at Rutgers School of Law. Prior to joining the fintech industry, Conway had a successful career on Wall Street as in-house counsel to Morgan Stanley and Bank of America Merrill Lynch where, as a certified data privacy and data protection professional, he specialized in providing legal advice regarding digital wealth management products and services. He is also a cryptocurrency investor and blockchain technology enthusiast.
Combining his Wall Street background with his passion for diversity, equity and inclusion ("DEI"), Conway co-founded a venture capital fund which invests in minority owned fintech startups, and he sits on the Advisory Board for Invest Sou Sou, an innovative Black female owned B2B fintech startup. A firm believer in creating opportunities for others, Conway has founded a number of DEI-focused organizations including the Black BigLaw Pipeline, Inc., a non-profit which provides substantive and soft skills training and support to Black law students and BigLaw associates, and 1844, a group of 60 Black male lawyers practicing primarily in BigLaw and in-house legal departments in New York.
Conway is the recipient of numerous awards for his leadership within the legal community and is a proud member of Kappa Alpha Psi Fraternity, Inc., and the Prince Hall Masonic Lodge. He was also selected as a 2016 Fellow in the Council of Urban Professionals. Conway earned his B.S. in architectural engineering at the University of Kansas and his J.D. at Rutgers School of Law where he was Managing Editor of the Rutgers Law Review. He and his wife reside in Manhattan with their two children.
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Honorable Leo M. Gordon U.S. Court of International Trade
Judge Leo M. Gordon has served as a judge of the United States Court of International Trade since March 2006. Judge Gordon is responsible for resolving judicial disputes involving challenges to the administration and enforcement of the federal customs and international trade laws by U.S. Customs and Border Protection, the U.S. Departments of Commerce, Agriculture, and Labor, the U.S. International Trade Commission, and other Executive Branch Agencies. In addition to his judicial duties, Judge Gordon has chaired, at different times, the Court’s Rules, Budget, Public Affairs/Education, and Strategic Planning Committees. Judge Gordon began his career in 1977 as Assistant Counsel at the Subcommittee on Monopolies and Commercial Law, Committee on the Judiciary, U.S. House of Representatives. In that capacity, Judge Gordon was the principal attorney responsible for the Customs Courts Act of 1980 that created the U.S. Court of International Trade. He also had responsibilities involving a wide range of antitrust and other commercial law legislative projects.
Judge Gordon is a member of the Board of Directors of the Federal Judges Association (“FJA”), serves on its Executive Committee, and co-chairs the Association’s Pay & Benefits Committee.
Judge Gordon is a Director of the Academia de Intercambio y Estudios Judiciales (“AIEJ”) (The Academy for the Interchange and Study of Judicial Matters) based in Buenos Aires, Argentina. For the past 10 years, he has conducted various judicial training programs for AIEJ in the United States and Argentina, as well as playing a principal role in the development of AIEJ’s overall training program. Judge Gordon is a Fellow (Miembro de Numero) of the International Customs Law Academy (“ICLA”), having given a principal address at two of its annual meetings in the last decade. He also serves on the planning committees for and has spoken at a variety of CLE programs focused on customs and international trade law, cybersecurity, and ethics, recently focusing on issues of working in a virtual environment. Judge Gordon is the co-author, along with Daniel B. Garrie, of “Cybersecurity & the Courthouse– Safeguarding the Judicial Process” published by Wolters Kluwer. Judge Gordon attended the University of North Carolina – Chapel Hill, graduating Phi Beta Kappa. He received a J.D. degree from Emory University School of Law.
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Appellate Department, First Division
Hon. Tanya R. Kennedy was appointed in July 2020 as an Associate Justice of the Appellate Division, First Department by Governor Andrew M. Cuomo. Prior to her appointment, Justice Kennedy served as a Justice of the Supreme Court, New York County, commencing in January 2016, after election in November 2015. She was elected to Civil Court in November 2005 and thereafter served in Criminal Court, Civil Court, Family Court, as Acting Supreme Court Justice, and as Supervising Judge of Civil Court, New York County. She is also a former Adjunct Professor at Fordham University School of Law, where she taught a Juvenile Justice seminar for ten years.
Justice Kennedy is a member of the Board of Directors of the New York City Bar Association and past chair of the organization’s Special Committee to Encourage Judicial Service. She is also an Executive Committee member of the Women in Law Section of the New York State Bar Association; member of the Committee on Pattern Jury Instructions of the Association of Supreme Court Justices of the State of New York; member of the Board of Overseers of the Benjamin N. Cardozo School of Law, where she received her law degree; and an Advisory Board Member of Penn State Law. Justice Kennedy is also the Past President of the National Association of Women Judges (NAWJ).
She is a frequent speaker at various conferences, including Relativity Fest, the Georgetown Advanced eDiscovery Institute, and ILTACON. Justice Kennedy is the recipient of numerous professional awards, including the 2021 John E. Higgins, Esq. Diversity Trailblazer Award from the New York State Bar Association; the 2020 Inspiration Award from the New York Coalition of Women’s Initiatives in Law; the 2017 Diversity Leadership Award from Penn State Law; and the 2015 Alumni of the Year Award from Benjamin N. Cardozo School of Law.
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Lori Leskin Arnold & Porter Kaye Scholer LLP
Lori B. Leskin is valued by her clients for her ability to successfully assess, strategize and implement unique solutions to their unique problems.
Ms. Leskin handles all aspects of litigation strategy for complex mass tort and class action litigations involving a variety of pharmaceutical and consumer products. Among Ms. Leskin’s current matters, she serves as national counsel for Pfizer Inc. in its Viagra® and talc product liability litigations, and for Bayer in its Avelox and Cipro product liability litigations.
Ms. Leskin is a frequent speaker on matters relating to all aspects of litigation, including ESI and social media, as well as substantive issues relating to products liability and class action litigation.
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Horizon Blue Cross Blue Shield of New Jersey Newark, NJ
Amy Walker Wagner is an Assistant General Counsel in the Litigation, Labor & Employment group at Horizon Blue Cross Blue Shield of New Jersey where she is responsible for handling pre-litigation and litigation matters and also overseeing the legal hold and e-discovery initiative.
Previously in private practice, Ms. Wagner concentrated her practice on whistleblower, complex commercial and intellectual property litigation in federal and state courts. She has counseled clients on complex matters dealing with contractual, employment, constitutional, legislative and white-collar criminal issues.
Ms. Wagner is admitted to practice in New Jersey and New York, and before the United States District Court for the District of New Jersey and the Southern and Eastern Districts of New York, the Third and Fifth Circuit Courts of Appeals, and the United States Supreme Court. She is on the Board of Trustees for the Association of the Federal Bar of New Jersey, and she has been a member of the American Bar Association as well as the Historical Society of the United States District Court for the District of New Jersey. She has also been a member of the Sedona Conference Working Group on Electronic Document Retention and Production (WG1).
Ms. Wagner is a Master in the John C. Lifland American Inn of Court, an association dedicated to fostering and developing the practice of intellectual property law and federal litigation. She has presented seminars on federal practice, ethics and e- discovery, and whistleblower litigation topics, and her articles on ethics and electronically-stored information have appeared in The Bencher and Bloomberg Law.
Ms. Wagner received her B.A. from Loyola University–New Orleans and her J.D. from Rutgers University School of Law–Camden, where she was the Lead State Constitutional Law Editor for the Rutgers Law Journal. After law school, she was a law clerk to the Honorable Jack M. Sabatino, Superior Court of New Jersey, and the Honorable Jose L. Linares, United States District Court for the District of New Jersey.
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ISSUE: What are an attorney’s ethical duties in the handling of discovery of electronically stored
information?
DIGEST: An attorney’s obligations under the ethical duty of competence evolve as new technologies develop and become integrated with the practice of law. Attorney competence related to litigation generally requires, among other things, and at a minimum, a basic understanding of, and facility with, issues relating to e-discovery, including the discovery of electronically stored information (“ESI”). On a case-by-case basis, the duty of competence may require a higher level of technical knowledge and ability, depending on the e-discovery issues involved in a matter, and the nature of the ESI. Competency may require even a highly experienced attorney to seek assistance in some litigation matters involving ESI. An attorney lacking the required competence for e-discovery issues has three options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation. Lack of competence in e-discovery issues also may lead to an ethical violation of an attorney’s duty of confidentiality.
AUTHORITIES INTERPRETED: Rules 3-100 and 3-110 of the Rules of Professional Conduct of the State Bar of
California.1/
Evidence Code sections 952, 954 and 955.
STATEMENT OF FACTS
Attorney defends Client in litigation brought by Client’s Chief Competitor in a judicial district that mandates consideration of e-discovery2/ issues in its formal case management order, which is consistent with California Rules of Court, rule 3.728. Opposing Counsel demands e-discovery; Attorney refuses. They are unable to reach an agreement by the time of the initial case management conference. At that conference, an annoyed Judge informs both attorneys they have had ample prior notice that e-discovery would be addressed at the conference and tells them to return in two hours with a joint proposal.
In the ensuing meeting between the two lawyers, Opposing Counsel suggests a joint search of Client’s network, using Opposing Counsel’s chosen vendor, based upon a jointly agreed search term list. She offers a clawback agreement that would permit Client to claw back any inadvertently produced ESI that is protected by the attorney- client privilege and/or the work product doctrine (“Privileged ESI”).
1/ Unless otherwise indicated, all references to rules in this opinion will be to the Rules of Professional Conduct of the State Bar of California. 2/ Electronically stored information (“ESI”) is information that is stored in technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities (e.g., Code Civ. Proc., § 2016.020, sub. (d) – (e)). Electronic Discovery, also known as e-discovery, is the use of legal means to obtain ESI in the course of litigation for evidentiary purposes.
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Attorney believes the clawback agreement will allow him to pull back anything he “inadvertently” produces. Attorney concludes that Opposing Counsel’s proposal is acceptable and, after advising Client about the terms and obtaining Client’s authority, agrees to Opposing Counsel’s proposal. Judge thereafter approves the attorneys’ joint agreement and incorporates it into a Case Management Order, including the provision for the clawback of Privileged ESI. The Court sets a deadline three months later for the network search to occur.
Back in his office, Attorney prepares a list of keywords he thinks would be relevant to the case, and provides them to Opposing Counsel as Client’s agreed upon search terms. Attorney reviews Opposing Counsel’s additional proposed search terms, which on their face appear to be neutral and not advantageous to one party or the other, and agrees that they may be included.
Attorney has represented Client before, and knows Client is a large company with an information technology (“IT”) department. Client’s CEO tells Attorney there is no electronic information it has not already provided to Attorney in hard copy form. Attorney assumes that the IT department understands network searches better than he does and, relying on that assumption and the information provided by CEO, concludes it is unnecessary to do anything further beyond instructing Client to provide Vendor direct access to its network on the agreed upon search date. Attorney takes no further action to review the available data or to instruct Client or its IT staff about the search or discovery. As directed by Attorney, Client gives Vendor unsupervised direct access to its network to run the search using the search terms.
Subsequently, Attorney receives an electronic copy of the data retrieved by Vendor’s search and, busy with other matters, saves it in an electronic file without review. He believes that the data will match the hard copy documents provided by Client that he already has reviewed, based on Client’s CEO’s representation that all information has already been provided to Attorney.
A few weeks later, Attorney receives a letter from Opposing Counsel accusing Client of destroying evidence and/or spoliation. Opposing Counsel threatens motions for monetary and evidentiary sanctions. After Attorney receives this letter, he unsuccessfully attempts to open his electronic copy of the data retrieved by Vendor’s search. Attorney hires an e-discovery expert (“Expert”), who accesses the data, conducts a forensic search, and tells Attorney potentially responsive ESI has been routinely deleted from Client’s computers as part of Client’s normal document retention policy, resulting in gaps in the document production. Expert also advises Attorney that, due to the breadth of Vendor’s execution of the jointly agreed search terms, both privileged information and irrelevant but highly proprietary information about Client’s upcoming revolutionary product were provided to Chief Competitor in the data retrieval. Expert advises Attorney that an IT professional with litigation experience likely would have recognized the overbreadth of the search and prevented the retrieval of the proprietary information.
What ethical issues face Attorney relating to the e-discovery issues in this hypothetical?
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DISCUSSION
I. Duty of Competence
A. Did Attorney Violate The Duty of Competence Arising From His Own Acts/Omissions?
While e-discovery may be relatively new to the legal profession, an attorney’s core ethical duty of competence remains constant. Rule 3-110(A) provides: “A member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence.” Under subdivision (B) of that rule, “competence” in legal services shall mean to apply the diligence, learning and skill, and mental, emotional, and physical ability reasonably necessary for the performance of such service. Read together, a mere failure to act competently does not trigger discipline under rule 3-110. Rather, it is the failure to do so in a manner that is intentional, reckless or repeated that would result in a disciplinable rule 3-110 violation. (See In the Matter of Torres (Reviwe Dept. 2000) 4 Cal. State Bar Ct. Rptr. 138, 149 (“We have repeatedly held that negligent legal representation, even that amounting to legal malpractice, does not establish a [competence] rule 3-110(A) violation.”); see also, In the Matter of Gadda (Review Dept. 2002) 4 Cal. State Bar Ct. Rptr. 416 (reckless and repeated acts); In the Matter of Riordan (Review Dept. 2007) 5 Cal. State Bar Ct. Rptr. 41 (reckless and repeated acts).)
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Legal rules and procedures, when placed alongside ever-changing technology, produce professional challenges that attorneys must meet to remain competent. Maintaining learning and skill consistent with an attorney’s duty of competence includes keeping “abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, . . .” ABA Model Rule 1.1, Comment [8].
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3/ Rule 3-110(C) provides: “If a member does not have sufficient learning and skill when the legal service is undertaken, the member may nonetheless perform such services competently by 1) associating with or, where appropriate, professionally consulting another lawyer reasonably believed to be competent, or 2) by acquiring sufficient learning and skill before performance is required.” Another permissible choice would be to decline the representation. When e-discovery is at issue, association or consultation may be with a non-lawyer technical expert, if appropriate in the circumstances. Cal. State Bar Formal Opn. No. 2010-179.
Not every litigated case involves e-discovery. Yet, in today’s technological world, almost every litigation matter potentially does. The chances are significant that a party or a witness has used email or other electronic communication, stores information digitally, and/or has other forms of ESI related to the dispute. The law governing e-discovery is still evolving. In 2009, the California Legislature passed California’s Electronic Discovery Act adding or amending several California discovery statutes to make provisions for electronic discovery. See, e.g., Code of Civil Procedure section 2031.010, paragraph (a) (expressly providing for “copying, testing, or sampling” of “electronically stored information in the possession, custody, or control of any other party to the action.”)4/ However, there is little California case law interpreting the Electronic Discovery Act, and much of the development of e-discovery law continues to occur in the federal arena. Thus, to analyze a California attorney’s current ethical obligations relating to e-discovery, we look to the federal jurisprudence for guidance, as well as applicable Model Rules, and apply those principles based upon California’s ethical rules and existing discovery law.5/
We start with the premise that “competent” handling of e-discovery has many dimensions, depending upon the complexity of e-discovery in a particular case. The ethical duty of competence requires an attorney to assess at the outset of each case what electronic discovery issues might arise during the litigation, including the likelihood that e-discovery will or should be sought by either side. If e-discovery will probably be sought, the duty of competence requires an attorney to assess his or her own e-discovery skills and resources as part of the attorney’s duty to provide the client with competent representation. If an attorney lacks such skills and/or resources, the attorney must try to acquire sufficient learning and skill, or associate or consult with someone with expertise to assist. Rule 3-110(C). Attorneys handling e-discovery should be able to perform (either by themselves or in association with competent co- counsel or expert consultants) the following:
initially assess e-discovery needs and issues, if any; implement/cause to implement appropriate ESI preservation procedures;6/
3/ Although not binding, opinions of ethics committees in California should be consulted by members for guidance on proper professional conduct. Ethics opinions and rules and standards promulgated by other jurisdictions and bar associations may also be considered. Rule 1-100(A). 4/ In 2006, revisions were made to the Federal Rules of Civil Procedure, rules 16, 26, 33, 34, 37 and 45, to address e-discovery issues in federal litigation. California modeled its Electronic Discovery Act to conform with mostly-parallel provisions in those 2006 federal rules amendments. (See Evans, Analysis of the Assembly Committee on Judiciary regarding AB 5 (2009). (http://www.leginfo.ca.gov/pub/09-10/bill/asm/ ab_0001-0050/ab_5_cfa_20090302_114942_asm_comm.html).) 5/ Federal decisions are compelling where the California law is based upon a federal statute or the federal rules. (See Toshiba America Electronic Components, Inc. v. Superior Court (Lexar Media, Inc.) (2004) 124 Cal.App.4th 762, 770 [21 Cal.Rptr.3d 532]; Vasquez v. Cal. School of Culinary Arts, Inc. (2014) 230 Cal.App.4th 35 [178 Cal.Rptr.3d 10]; see also footnote 4, supra.) 6/ This opinion does not directly address ethical obligations relating to litigation holds. A litigation hold is a directive issued to, by, or on behalf of a client to persons or entities associated with the client who may possess potentially relevant documents (including ESI) that directs those custodians to preserve such documents, pending further direction. See generally Redgrave, Sedona Conference ® Commentary on Legal Holds: The Trigger and The Process (Fall 2010) The Sedona Conference Journal, Vol. 11 at pp. 260 – 270, 277 – 279. Prompt issuance of a litigation hold may prevent spoliation of evidence, and the duty to do so falls on both the party and outside counsel working on the matter. See
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7/
See, e.g., Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC (S.D.N.Y. 2010) 685 F.Supp.2d 456, 462 – 465 (defining gross negligence in the preservation of ESI), (abrogated on other grounds in Chin v. Port Authority (2nd Cir. 2012) 685 F.3d 135 (failure to institute litigation hold did not constitute gross negligence per se)).
In our hypothetical, Attorney had a general obligation to make an e-discovery evaluation early, prior to the initial case management conference. The fact that it was the standard practice of the judicial district in which the case was pending to address e-discovery issues in formal case management highlighted Attorney’s obligation to conduct an early initial e-discovery evaluation.
Notwithstanding this obligation, Attorney made no assessment of the case’s e-discovery needs or of his own capabilities. Attorney exacerbated the situation by not consulting with another attorney or an e-discovery expert prior to agreeing to an e-discovery plan at the initial case management conference. He then allowed that proposal to become a court order, again with no expert consultation, although he lacked sufficient expertise. Attorney participated in preparing joint e-discovery search terms without experience or expert consultation, and he did not fully understand the danger of overbreadth in the agreed upon search terms.
Even after Attorney stipulated to a court order directing a search of Client’s network, Attorney took no action other than to instruct Client to allow Vendor to have access to Client’s network. Attorney did not instruct or supervise Client regarding the direct network search or discovery, nor did he try to pre-test the agreed upon search terms or otherwise review the data before the network search, relying on his assumption that Client’s IT department would know what to do, and on the parties’ clawback agreement.
After the search, busy with other matters and under the impression the data matched the hard copy documents he had already seen, Attorney took no action to review the gathered data until after Opposing Counsel asserted spoliation and threatened sanctions. Attorney then unsuccessfully attempted to review the search results. It was only then, at the end of this long line of events, that Attorney finally consulted an e-discovery expert and learned of the e-discovery problems facing Client. By this point, the potential prejudice facing Client was significant, and much of the damage already had been done.
At the least, Attorney risked breaching his duty of competence when he failed at the outset of the case to perform a timely e-discovery evaluation. Once Opposing Counsel insisted on the exchange of e-discovery, it became certain that e-discovery would be implicated, and the risk of a breach of the duty of competence grew considerably; this should have prompted Attorney to take additional steps to obtain competence, as contemplated under rule 3-110(C), such as consulting an e-discovery expert.
[Footnote Continued…]
Zubulake v. UBS Warburg LLC (S.D.N.Y. 2003) 220 F.R.D. 212, 218 and Zubulake v. UBS Warburg LLC (S.D.N.Y. 2004) 229 F.R.D. 422, 432. Spoliation of evidence can result in significant sanctions, including monetary and/or evidentiary sanctions, which may impact a client’s case significantly. 7/ This opinion focuses on an attorney’s ethical obligations relating to his own client’s ESI and, therefore, this list focuses on those issues. This opinion does not address the scope of an attorney’s duty of competence relating to obtaining an opposing party’s ESI.
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Had the e-discovery expert been consulted at the beginning, or at the latest once Attorney realized e-discovery would be required, the expert could have taken various steps to protect Client’s interest, including possibly helping to structure the search differently, or drafting search terms less likely to turn over privileged and/or irrelevant but highly proprietary material. An expert also could have assisted Attorney in his duty to counsel Client of the significant risks in allowing a third party unsupervised direct access to Client’s system due to the high risks and how to mitigate those risks. An expert also could have supervised the data collection by Vendor.
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Whether Attorney’s acts/omissions in this single case amount to a disciplinable offense under the “intentionally, recklessly, or repeatedly” standard of rule 3-110 is beyond this opinion, yet such a finding could be implicated by these facts.9/ See, e.g., In the Matter of Respondent G. (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 175, 179 (respondent did not perform competently where he was reminded on repeated occasions of inheritance taxes owed and repeatedly failed to advise his clients of them); In re Matter of Copren (Review Dept. 2005) 4 Cal. State Bar Ct. Rptr. 861, 864 (respondent did not perform competently when he failed to take several acts in single bankruptcy matter); In re Matter of Layton (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 366, 377 – 378 (respondent did not perform competently where he “recklessly” exceeded time to administer estate, failed to diligently sell/distribute real property, untimely settled supplemental accounting and did not notify beneficiaries of intentions not to sell/lease property).
B. Did Attorney Violate The Duty of Competence By Failing To Supervise?
The duty of competence in rule 3-110 includes the duty to supervise the work of subordinate attorneys and non- attorney employees or agents. See Discussion to rule 3-110. This duty to supervise can extend to outside vendors or contractors, and even to the client itself. See California State Bar Formal Opn. No. 2004-165 (duty to supervise outside contract lawyers); San Diego County Bar Association Formal Opn. No. 2012-1 (duty to supervise clients relating to ESI, citing Cardenas v. Dorel Juvenile Group, Inc. (D. Kan. 2006) 2006 WL 1537394).
Rule 3-110(C) permits an attorney to meet the duty of competence through association with another lawyer or consultation with an expert. See California State Bar Formal Opn. No. 2010-179. Such expert may be an outside vendor, a subordinate attorney, or even the client, if they possess the necessary expertise. This consultation or association, however, does not absolve an attorney’s obligation to supervise the work of the expert under rule 3-110, which is a non-delegable duty belonging to the attorney who is counsel in the litigation, and who remains the one primarily answerable to the court. An attorney must maintain overall responsibility for the work of the expert he or she chooses, even if that expert is the client or someone employed by the client. The attorney must do so by remaining regularly engaged in the expert’s work, by educating everyone involved in the e-discovery workup about the legal issues in the case, the factual matters impacting discovery, including witnesses and key evidentiary issues, the obligations around discovery imposed by the law or by the court, and of any relevant risks associated with the e- discovery tasks at hand. The attorney should issue appropriate instructions and guidance and, ultimately, conduct appropriate tests until satisfied that the attorney is meeting his ethical obligations prior to releasing ESI.
Here, relying on his familiarity with Client’s IT department, Attorney assumed the department understood network searches better than he did. He gave them no further instructions other than to allow Vendor access on the date of the network search. He provided them with no information regarding how discovery works in litigation, differences
8/ See Advisory Committee Notes to the 2006 Amendments to the Federal Rules of Civil Procedure, rule 34 (“Inspection or testing of certain types of electronically stored information or of a responding party’s electronic information system may raise issues of confidentiality or privacy. The addition of testing and sampling to Rule 34(a) . . . is not meant to create a routine right of direct access to a party’s electronic information system, although such access might be justified in some circumstances. Courts should guard against undue intrusiveness resulting from inspecting or testing such systems.”). See also The Sedona Principles Addressing Electronic Document Production (2nd Ed. 2007), Comment 10(b) (“Special issues may arise with any request to secure direct access to electronically stored information or to computer devices or systems on which it resides. Protective orders should be in place to guard against any release of proprietary, confidential, or personal electronically stored information accessible to the adversary or its expert.”). 9/ This opinion does not intend to set or define a standard of care of attorneys for liability purposes, as standards of care can be highly dependent on the factual scenario and other factors not applicable to our analysis herein.
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between a party affiliated vendor and a neutral vendor, what could constitute waiver under the law, what case- specific issues were involved, or the applicable search terms. Client allowed Vendor direct access to its entire network, without the presence of any Client representative to observe or monitor Vendor’s actions. Vendor retrieved proprietary trade secret and privileged information, a result Expert advised Attorney could have been prevented had a trained IT individual been involved from the outset. In addition, Attorney failed to warn Client of the potential significant legal effect of not suspending its routine document deletion protocol under its document retention program.
Here, as with Attorney’s own actions/inactions, whether Attorney’s reliance on Client was reasonable and sufficient to satisfy the duty to supervise in this setting is a question for a trier of fact. Again, however, a potential finding of a competence violation is implicated by the fact pattern. See, e.g., Palomo v. State Bar (1984) 36 Cal.3d 785, 796 [205 Cal.Rptr. 834] (evidence demonstrated lawyer’s pervasive carelessness in failing to give the office manager any supervision, or instruction on trust account requirements and procedures).
II. Duty of Confidentiality
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A fundamental duty of an attorney is “[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” (Bus. & Prof. Code, § 6068 (e)(1).) “Secrets” includes “information, other than that protected by the attorney-client privilege, that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.” (Cal. State Bar Formal Opinion No. 1988-96.) “A member shall not reveal information protected from disclosure by Business and Professions Code section 6068, subdivision (e)(1), without the informed consent of the client, or as provided in paragraph (B) of this rule.” (Rule 3-100(A).)
Similarly, an attorney has a duty to assert the attorney-client privilege to protect confidential communications between the attorney and client. (Evid. Code, §§ 952, 954, 955.) In civil discovery, the attorney-client privilege will protect confidential communications between the attorney and client in cases of inadvertent disclosure only if the attorney and client act reasonably to protect that privilege. See Regents of University of California v. Superior Court (Aquila Merchant Services, Inc.) (2008) 165 Cal.App.4th 672, 683 [81 Cal.Rptr.3d 186]. This approach also echoes federal law. 10/ A lack of reasonable care to protect against disclosing privileged and protected information when producing ESI can be deemed a waiver of the attorney-client privilege. See Kilopass Tech. Inc. v. Sidense Corp. (N.D. Cal. 2012) 2012 WL 1534065 at 2 – 3 (attorney-client privilege deemed waived as to privileged documents released through e-discovery because screening procedures employed were unreasonable).
In our hypothetical, because of the actions taken by Attorney prior to consulting with any e-discovery expert, Client’s privileged information has been disclosed. Due to Attorney’s actions, Chief Competitor can argue that such disclosures were not “inadvertent” and that any privileges were waived. Further, non-privileged, but highly confidential proprietary information about Client’s upcoming revolutionary new product has been released into the hands of Chief Competitor. Even absent any indication that Opposing Counsel did anything to engineer the overbroad disclosure, it remains true that the disclosure occurred because Attorney participated in creating overbroad search terms. All of this happened unbeknownst to Attorney, and only came to light after Chief Competitor accused Client of evidence spoliation. Absent Chief Competitor’s accusation, it is not clear when any of this would have come to Attorney’s attention, if ever.
The clawback agreement on which Attorney heavily relied may not work to retrieve the information from the other side. By its terms, the clawback agreement was limited to inadvertently produced Privileged ESI. Both privileged information, and non-privileged, but confidential and proprietary information, have been released to Chief Competitor.
10/ See Federal Rules of Evidence, rule 502(b): “Inadvertent Disclosure. When made in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if: (1) the disclosure is inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).”
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Under these facts, Client may have to litigate whether Client (through Attorney) acted diligently enough to protect its attorney-client privileged communications. Attorney took no action to review Client’s network prior to allowing the network search, did not instruct or supervise Client prior to or during Vendor’s search, participated in drafting the overbroad search terms, and waited until after Client was accused of evidence spoliation before reviewing the data – all of which could permit Opposing Counsel viably to argue Client failed to exercise due care to protect the privilege, and the disclosure was not inadvertent.
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Client also may have to litigate its right to the return of non-privileged but confidential proprietary information, which was not addressed in the clawback agreement.
Whether a waiver has occurred under these circumstances, and what Client’s rights are to return of its non- privileged/confidential proprietary information, again are legal questions beyond this opinion. Attorney did not reasonably try to minimize the risks. Even if Client can retrieve the information, Client may never “un-ring the bell.”
The State Bar Court Review Department has stated, “Section 6068, subdivision (e) is the most strongly worded duty binding on a California attorney. It requires the attorney to maintain ‘inviolate’ the confidence and ‘at every peril to himself or herself’ preserve the client’s secrets.” (See Matter of Johnson (Rev. Dept. 2000) 4 Cal. State Bar Ct. Rptr. 179.) While the law does not require perfection by attorneys in acting to protect privileged or confidential information, it requires the exercise of reasonable care. Cal. State Bar Formal Opn. No. 2010-179. Here, Attorney took only minimal steps to protect Client’s ESI, or to instruct/supervise Client in the gathering and production of that ESI, and instead released everything without prior review, inappropriately relying on a clawback agreement. Client’s secrets are now in Chief Competitor’s hands, and further, Chief Competitor may claim that Client has waived the attorney-client privilege. Client has been exposed to that potential dispute as the direct result of Attorney’s actions. Attorney may have breached his duty of confidentiality to Client.
CONCLUSION
Electronic document creation and/or storage, and electronic communications, have become commonplace in modern life, and discovery of ESI is now a frequent part of almost any litigated matter. Attorneys who handle litigation may not ignore the requirements and obligations of electronic discovery. Depending on the factual circumstances, a lack of technological knowledge in handling e-discovery may render an attorney ethically incompetent to handle certain litigation matters involving e-discovery, absent curative assistance under rule 3-110(C), even where the attorney may otherwise be highly experienced. It also may result in violations of the duty of confidentiality, notwithstanding a lack of bad faith conduct.
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the State Bar of California. It is advisory only. It is not binding upon the courts, the State Bar of California, its Board of Trustees, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.
[Publisher’s Note: Internet resources cited in this opinion were last accessed by staff on June 30, 2015. Copies of these resources are on file with the State Bar’s Office of Professional Competence.] 11/ Although statute, rules, and/or case law provide some limited authority for the legal claw back of certain inadvertently produced materials, even in the absence of an express agreement, those provisions may not work to mitigate the damage caused by the production in this hypothetical. These “default” claw back provisions typically only apply to privilege and work product information, and require both that the disclosure at issue has been truly inadvertent, and that the holder of the privilege has taken reasonable steps to prevent disclosure in the first instance. See Federal Rules of Evidence, rule 502; see also generally State Compensation Insurance Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644 [82 Cal.Rptr.2d 799]; Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807, 817 – 818 [68 Cal.Rptr.3d 758]. As noted above, whether the disclosures at issue in our hypothetical truly were “inadvertent” under either the parties’ agreement or the relevant law is an open question. Indeed, Attorney will find even less assistance from California’s discovery clawback statute than he will from the federal equivalent, as the California statute merely addresses the procedure for litigating a dispute on a claim of inadvertent production, and not the legal issue of waiver at all. (See Code Civ. Proc., § 2031.285.)
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State Bar of Michigan, Ethics in the COVID-19 Pandemic Reprinted with permission from the State Bar of Michigan.
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Ethics in the COVID-19 Pandemic
Lawyers are essen al during crises to help clients with their changing legal needs. This crisis is presen ng unique challenges, forcing a orneys to serve their clients in new ways. While many court services are suspended, businesses are temporarily closed, and most work must be done remotely, the Michigan Rules of Professional Conduct (MRPC) are s ll in full effect. This resource is intended to help you iden fy and assess ethical issues during the COVID-19 pandemic. It is informa onal only and does not cons tute legal advice.
How do I meet my ethical obliga ons during a crisis? Communica on—MRPC 1.4
Even during a crisis, a lawyer has the duty to “keep a client reasonably informed about the status of a ma er and comply promptly with reasonable requests for informa on.” MRPC 1.4. With courts suspending services and lawyers being forced to work from home, it may be daun ng to figure out how and when to communicate to clients.
Maintain clear and regular communica ons with clients, including:
1. How to Communicate: Encourage contact and provide the client with the best way to contact you: mail, phone, text, video calls, whatever method works best for you and your client.
2. Status Updates: Advise of the status of court cases. Clients may not understand the extent to which courts are closed and the delay that this may cause to their case. Even amidst a pandemic, clients may s ll believe that their case is the most important thing in the world. Keep clients current as to the status of their cases and do not make promises regarding the outcome. If you do not know the answer to a client’s ques on, do not be afraid to admit that. To stay up to date on the status of business being conducted in courts, SBM has links to Michigan Supreme Court emergency administra ve orders and guidance on local courts.
3. Succession Plan: If you have a succession plan in place, tell your clients what to expect, including who will contact them, if you should become ill or otherwise unexpectedly be unable to represent them. If you don’t have a plan in place, this is a great me to create one.
4. Power of A orney: Ask your clients if they have a power of a orney or legal representa ve with whom you should communicate in case your client becomes ill or otherwise unable to communicate with you. Best prac ce is to get this authority in wri ng. If they do not have a plan in place, be prepared to provide resources.
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Diligence—MRPC 1.3
A lawyer has a fundamental obliga on to represent a client competently and diligently. RI-343. This includes “pursu[ing] a ma er on behalf of a client despite opposi on, obstruc on, or personal inconvenience to a lawyer.” Comment to MRPC 1.3. With court services suspended, businesses temporarily closed, and a orneys working remotely, how does an a orney diligently represent a client?
1. Stay informed. The State Bar of Michigan (SBM) has numerous resources available to keep lawyers up to date on administra ve orders and execu ve orders, local courts, and prac ce management tools to help accommodate the prac ce of law during the pandemic. SBM also has an FAQ page that is regularly updated with ques ons we receive from a orneys. If you have a ques on that has not been answered, email [email protected].
2. U lize technology. The Michigan Supreme Court has urged courts to u lize technology when possible, and the bar must respond accordingly and learn how to use the appropriate technology to diligently represent clients. Take advantage of video-conferencing, remote notariza on, e-mail, and e-filing where available. The State Bar is a source of help if you need it.
3. Communica on. Communica on with clients is impera ve so that clients are aware of the status of their ma er, any restric ons on the lawyer’s ability to con nue representa on, or restric ons imposed by the courts. SBM has COVID-19 resources to help you communicate with clients with addi onal tools at the Prac ce Management Resource Center.
4. Self assessment. Throughout the crisis, lawyers should assess their personal ability to provide adequate representa on. SBM’s COVID-19 Response and Lawyers and Judge Assistance Program has resources available for lawyers to help deal with the stress and anxiety which may occur during periods of significant change. The Lawyers and Judges Assistance Program (LJAP) is available to assist with general wellness informa on for the legal profession, as well as specific monitoring programs if needed.
Competence—MRPC 1.1
Changing mes mean new opportuni es. Not only are a orneys being asked to work in new ways, but clients are going to ask new ques ons that you should be prepared to answer.
1. Substan ve competence. Many clients’ legal needs will change during and a er the pandemic. More clients will request estate plans, try to understand changes to federal and state benefits, want to know how unemployment affects pending family law cases, take extraordinary steps to keep their businesses alive, and so many more ques ons we may not expect. If you decide to provide answers, you must do so competently. Researching and learning the answers to these novel ques ons can also stave off boredom. Resources are available to help you. SBM sec ons have been focused on assessing how the law needs to change to respond to the COVID-19 pandemic, including remote witnessing of documents, remote notariza on, and remote signatures for elec ons. Lawyers are encouraged to join a sec on, following sec ons’ listservs, and get involved in helping the law respond and adjust to crisis circumstances.
2. Technical competence. Many of us are taking a crash course in remote access, video conferencing, and establishing normalcy when we are not in our offices. SBM’s COVID-19 Resource and Prac ce Management Resource Center have numerous resources regarding technology, including use of cloud based program, e-signing, and video conferences here: Technology. SBM’s Prac ce Management Resource Center also offers disaster preparedness and response resources. The American Bar Associa on offers numerous free resources in its Law Prac ce Division publica ons and in its Legal Technology Resource Center.
Confiden ality—MRPC 1.6
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Today’s technology provides a variety of op ons for working remotely: video conferencing, shared files, email, and more. This technology can help you remain produc ve and con nue to provide services to clients. You must, however, remain mindful of your ethical obliga ons to keep informa on secure while using these services.
A lawyer has an ethical obliga on to protect the confiden ality of client informa on, including exercising reasonable care to prevent employees, associates, and others from disclosing or using confiden al informa on. MRPC 1.6. “A lawyer must formulate, adopt, and follow policies and procedures, appropriate to the lawyer’s field(s) of prac ce, regarding the use, transmission, and storage of client [electronically stored informa on]. In addi on, a lawyer must evaluate whether specific cybersecurity measures are appropriate for the representa on of a client in a par cular ma er.” RI-381. See also ABA Formal Opinion 477 . This is par cularly applicable while working remotely u lizing electronic resources.
What may be considered reasonable cybersecurity can change over me and with the advancement of technology. Thus, you must periodically assess whether your policies and procedures regarding electronically stored informa on are consistent with current technology. You must also ensure that your employees, associates, and other services your use maintain the confiden ality of client informa on.
Having a remote work plan helps to ensure that business opera ons can con nue even in the face of unexpected circumstances such as a pandemic. It also helps ensure that you can con nue to assist your clients and provide necessary services.
Supervision—MRPC 5.1 & 5.3
Even though lawyers may not be working in a tradi onal office se ng right now, the duty to supervise remains in effect. A partner in a law firm must make efforts to ensure that all lawyers in the firm conform to the Rules of Professional Conduct. MRPC 5.1. In addi on, any lawyer having direct supervisory authority over a nonlawyer must ensure that the nonlawyer’s conduct is compa ble with the professional obliga ons of the lawyer. MCRP 5.3. A lawyer should give nonlawyers personal assistance, appropriate instruc on, and supervision concerning the ethical aspects of their employment, par cularly regarding the obliga on not to disclose informa on rela ng to representa on of the client. A lawyer should be responsible for the work product of the nonlawyer. RI-001. The duty of supervision is par cularly important with regard to nonlawyers to ensure that they do not uninten onally stray into the unauthorized prac ce of law. MRPC 5.5
While exercising supervisory responsibility may be a bit more difficult right now, the same tools that help you connect with your clients can help you connect with your staff and other lawyers. Video conferencing, emails and telephone calls can all be u lized to make sure that you are mee ng your professional obliga on to supervise lawyers and nonlawyers in your organiza on.
What if I become ill? Hope for the best and plan for the worst.
The COVID-19 pandemic highlights the need for a orneys in private prac ce to engage in though ul succession planning to protect their clients and law prac ce should they become unexpectedly unable to prac ce law. Find another a orney you trust now and make a plan.Share
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“Michigan lawyers are strongly encouraged to prepare a comprehensive succession plan specific for their law prac ces to protect their clients and fulfill their ethical responsibili es under the MRPC should they become unavailable due to death, disability, discipline, disappearance, or any other circumstance.” RI- 374.
For a orneys in larger law firms, the firm can typically step in to take over representa on on short no ce, but even firms need con ngency plans in place, par cularly with the possibility of many a orneys becoming ill at the same me.
The need for succession planning is even greater for small firms and solo prac ces. SBM has a Planning Ahead Guide that walks a orneys through the process. The first step is to find someone—an a orney— to close or temporarily manage your prac ce in the event of your death, disability, impairment, or incapacity. The arrangements you make for closure of your office should include a signed consent form authorizing the Assis ng A orney to contact your clients for instruc ons on transferring their files, authoriza on to obtain extensions of me in li ga on ma ers when needed, and authoriza on to provide all relevant people with no ce of closure of your law prac ce.
What if my client becomes ill? COVID-19 is an unpredictable, serious, and poten ally deadly virus. Acknowledging this reality, lawyers must consider what happens when a client becomes ill and how the rules of legal ethics impact their du es and responsibili es to that client.
What general ethical du es govern communica ons with my client? MRPC 1.4 sets forth the essen al du es a lawyer has to his or her client regarding communica on. MPRC 1.4 provides that a lawyer must “keep the client reasonably informed about the status of ma er and comply promptly with reasonable requests for informa on.” This duty, like the vow of marriage, exists “in sickness as in health.” The fact that a client may have COVID-19 does not lessen the lawyer’s duty to keep the client informed. As the Comments to MRPC 1.4 note, “the guiding principle is that the lawyer should fulfill reasonable client expecta ons for informa on consistent with the duty to act in the client’s best interests and consistent with the client’s overall requirements as to the character of the representa on.” Remember that communica on with a client ba ling COVID-19 will almost certainly be electronic and/or virtual. The lawyer’s safety and that of the en re community is dependent on following all applicable public health guidelines and orders regarding social distancing. The SBM’s COVID-19 Resource and Prac ce Management Resource Center have a number of resources to help a orneys harness technology to facilitate the prac ce of law remotely. What happens if the client’s ba le with COVID-19 deepens and the client is hospitalized and possibly placed on a ven lator? In such a grave situa on, a lawyer should consult MPRC 1.14, Client under a Disability. You must consider to what extent you can “maintain a normal client- lawyer rela onship” given the client’s condi on. The Comments to Rule 1.14 state, a lawyer must remember that “the fact that a client suffers a disability does not diminish the lawyer’s obliga on to treat the client with a en on and respect.”
A person suffering from COVID-19 may endure rela vely sudden changes in his or her health status. Therefore, lawyers will be challenged to assess their client’s individual situa ons in light of applicable rules and regula ons. Ethics opinions RI-076 and RI-051 provide addi onal guidance to lawyers seekingShare e
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to navigate the difficult landscape of client communica on under these circumstances.
Disaster Preparedness Plan In 2005, a er Hurricane Katrina brought disastrous floods in Louisiana, the ABA and other legal en es began recommending that lawyers create a plan to deal with disasters. ABA Formal Ethics Opinion 482
provides guidance for lawyers in the wake of a disaster.
ABA A Dozen Disaster Recovery Tips Surviving a Disaster: A Lawyer’s Guide to Disaster Planning
Social Media As we are forced to stay at home and prac ce social distancing, people are also turning more toward social media to stay connected with friends and family. Social media also offers opportuni es to market your business. SBM has social media ethics FAQs to help you navigate ethical issues and avoid making mistakes when engaging in social media.
LinkedIn Ethics FAQs Facebook Ethics FAQs Twi er Ethics FAQs Tumblr, Snapchat, Reddit, Pinterest, Instagram Ethics FAQs
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The Sedona Conference, Selected Recent Sedona Conference Working Group Series Publications (May 2021) © 2016-2021 The Sedona Conference.
Reprinted with permission from the Sedona Conference.
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The following publications are free for individual download from The Sedona Conference web site at https://thesedonaconference.org/publications. Registration is not required, but entering your Sedona Conference website username and password will speed up the download process, especially if multiple publications are desired. Reprint of any publication for more than personal use is restricted.
In keeping with The Sedona Conference’s nonpartisan mission of moving the law forward in a reasoned and just way, each publication represents the consensus of the issuing Working Group, reached after initial drafting by a balanced team representing the major points of view on the topic, internal review by the full Working Group membership, dialogue at one or more Working Group meetings, and finally a public comment period (the most recent listings may still be in public comment phase). Each publication is described briefly in the following pages, with a link to the full publication at the end of each entry. The link will take you to a “download page,” where all prior editions of this publication are listed and where any subsequent updates can be found, so you’ll always be up to date.
Speakers on each of these topics are available for professional organizations, law schools, bar associations, judicial education programs, and other groups. No honoraria are required, although donations are gratefully accepted. Generally, a qualified member of the drafting or edi- torial team can be located close to your event to minimize travel costs. Please address speaking or reprint inquiries to [email protected].
Electronic Discovery The Sedona Principles, Third Edition (October 2017) The Sedona Conference Commentary on Legal Holds, Second Edition: The Trigger
& The Process (June 2019) The Sedona Conference Commentary on Proportionality in Electronic Discovery
(May 2017) The Sedona Conference Cooperation Proclamation: Resources for the Judiciary,
Third Edition (June 2020) The Sedona Conference Commentary on ESI Evidence & Admissibility, Second
Edition (October 2020) The Sedona Conference Commentary on Rule 45 Subpoenas to Non-Parties, Sec-
ond Edition (October 2020) The Sedona Conference Primer on Social Media, Second Edition (February 2019)
The Sedona Conference Commentary on BYOD: Principles and Guidance for De-
veloping Policies and Meeting Discovery Obligations (May 2018) The Sedona Conference Commentary on Rule 34 and Rule 45 “Possession, Custo-
dy, or Control” (August 2016) The Sedona Conference Federal Rule of Civil Procedure 34(b)(2) Primer: Practice
Pointers for Responding to Discovery Requests (March 2018) The Sedona Conference TAR Case Law Primer (January 2017) The Sedona Conference Guidance for the Selection of Electronic Discovery Provid-
ers (April 2017) The Sedona Conference Commentary on Ephemeral Messaging, Public Comment
Version (January 2021) The Sedona Canada Principles Addressing Electronic Discovery, Third Edition,
Public Comment Version (May 2021)
Information Governance The Sedona Conference Glossary, 5th Edition (February 2020) The Sedona Conference Commentary on Information Governance, Second Edition
(April 2019) The Sedona Conference Commentary on Defensible Disposition (April 2019)
Data Privacy and Cybersecurity The Sedona Conference Commentary on a Reasonable Security Test
(February 2021) The Sedona Conference Commentary on Law Firm Data Security (July 2020) The Sedona Conference Incident Response Guide (January 2020) The Sedona Conference Data Privacy Primer (January 2018) The Sedona Conference Commentary on Application of Attorney-Client Privilege
and Work-Product Protection to Documents and Communications Generated in the Cybersecurity Context (November 2019)
The Sedona Conference Commentary on Data Privacy and Security Issues in Mer- gers & Acquisitions Practice (May 2019)
The Sedona Conference Commentary on the Enforceability in U.S. Courts of Or- ders and Judgments Entered under GDPR (January 2021)
The Sedona Conference Commentary on Quantifying Violations under U.S. Priva- cy Laws, Public Comment Version (May 2021)
Cross-Border Data Transfers The Sedona Conference International Litigation Principles on Discovery, Disclo-
sure & Data Protection in Civil Litigation, Transitional Edition (January 2017) The Sedona Conference International Investigations Principles (May 2018)
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The Sedona Conference Commentary and Principles on Jurisdictional Conflicts
over Transfers of Personal Data Across Borders (April 2020) The Sedona Conference Practical In-House Approaches for Cross-Border Discov-
ery and Data Protection (June 2016)
Trade Secrets The Sedona Conference Commentary on the Proper Identification of Asserted
Trade Secrets in Misappropriation Cases (October 2020) The Sedona Conference Framework for Analysis on Trade Secrets Across Interna-
tional Borders: Extra Territorial Reach, Public Comment Version (March 2021) The Sedona Conference Commentary on Equitable Remedies in Trade Secret Liti-
gation, Public Comment Version (May 2021)
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Addressing Electronic Document Production (October 2017)
The Third Edition of The Sedona Principles is a project started in 2002 by The Sedona Conference Working Group on Electronic Document Retention & Production (WG1). From its inception, The Sedona Principles was intended to serve as best practices, recommendations, and principles for addressing electronically stored information (ESI) issues in disputes—whether in federal or state court, and whether during or before the commencement of litigation. Throughout its 15-year evolution, The Sedona Principles has been recognized as a foundational guide for attorneys and judges confronting the novel challenges of eDiscovery. The Third Edition reflects the development of electronic discovery practice over the past decade and the 2015 amendments to the Fed- eral Rules of Civil Procedure.
The Sedona Principles, Third Edition presents fourteen practical Principles for addressing Electronic Document Production:
Principle 1: Electronically stored information is generally subject to the same preservation and discovery requirements as other relevant information.
Principle 2: When balancing the cost, burden, and need for electronically stored information, courts and parties should apply the proportionality standard em- bodied in Fed. R. Civ. P. 26(b)(1) and its state equivalents, which requires consideration of 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 out- weighs its likely benefit.
Principle 3: As soon as practicable, parties should confer and seek to reach agreement regarding the preservation and production of electronically stored information.
Principle 4: Discovery requests for electronically stored information should be as specific as possible; responses and objections to discovery should disclose the scope and limits of the production.
Principle 5: The obligation to preserve electronically stored information requires reasonable and good faith efforts to retain information that is expected to be rele-
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vant to claims or defenses in reasonably anticipated or pending litigation. However, it is unreasonable to expect parties to take every conceivable step or disproportionate steps to preserve each instance of relevant electronically stored information.
Principle 6: Responding parties are best situated to evaluate the procedures, methodol- ogies, and technologies appropriate for preserving and producing their own electronically stored information.
Principle 7: The requesting party has the burden on a motion to compel to show that the responding party’s steps to preserve and produce relevant electronically stored information were inadequate.
Principle 8: The primary sources of electronically stored information to be preserved and produced should be those readily accessible in the ordinary course. On- ly when electronically stored information is not available through such primary sources should parties move down a continuum of less accessible sources until the information requested to be preserved or produced is no longer proportional.
Principle 9: Absent a showing of special need and relevance, a responding party should not be required to preserve, review, or produce deleted, shadowed, frag- mented, or residual electronically stored information.
Principle 10: Parties should take reasonable steps to safeguard electronically stored information, the disclosure or dissemination of which is subject to privileges, work product protections, privacy obligations, or other legally enforceable restrictions.
Principle 11: A responding party may satisfy its good faith obligations to preserve and produce relevant electronically stored information by using technology and processes, such as sampling, searching, or the use of selection criteria.
Principle 12: The production of electronically stored information should be made in the form or forms in which it is ordinarily maintained or that is reasonably usable given the nature of the electronically stored information and the proportional needs of the case.
Principle 13: The costs of preserving and producing relevant and proportionate electronically stored information ordinarily should be borne by the responding party.
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Principle 14: The breach of a duty to preserve electronically stored information may be addressed by remedial measures, sanctions, or both: remedial measures are appropriate to cure prejudice; sanctions are appropriate only if a party acted with intent to deprive another party of the use of relevant electronically stored information.
The full text of The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production, is available free for individual download
from The Sedona Conference website at https://thesedonaconference.org/publication/The_Sedona_Principles.
© 2017 The Sedona Conference. Reprinted courtesy of The Sedona Conference.
(June 2019)
Information lies at the core of civil litigation and our civil discovery system. Accordingly, the law has developed rules regarding the way information should be treated in connection with litigation. One of the principal rules is that when an organization reasonably anticipates litigation (as either the initiator or the target of litigation), the organization has a duty to undertake reasonable actions to preserve paper documents, electronically stored information (ESI), and tangi- ble items that are relevant to the parties’ claims and defenses and proportional to the needs of the case. The same preservation principle applies when an investigation is reasonably anticipated. The use of a “legal hold” has become a common means by which organizations initiate meeting their preservation obligations.
This Commentary provides practical guidelines for determining (a) when the duty to preserve discoverable information arises, and (b) once that duty is triggered, what should be preserved and how the preservation process should be undertaken.
Guideline 1: A reasonable anticipation of litigation arises when an organization is on notice of a credible probability that it will become involved in litigation, seri- ously contemplates initiating litigation, or when it takes specific actions to commence litigation.
Guideline 2: Adopting and consistently following a policy governing an organization’s preservation obligations are factors that may demonstrate reasonableness and good faith.
Guideline 3: Adopting a procedure for reporting information relating to possible litigation to a responsible decision maker may assist in demonstrating reasonableness and good faith.
Guideline 4: Determining whether litigation is or should be reasonably anticipated should be based on a good-faith and reasonable evaluation of relevant facts and circumstances.
Guideline 5: Evaluating an organization’s preservation decisions should be based on the good faith and reasonableness of the decisions (including whether a legal hold is necessary and how it should be implemented) at the time they are made.
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Guideline 6: Fulfilling the duty to preserve involves reasonable and good-faith efforts,
taken as soon as is practicable and applied proportionately, to identify persons likely to have information relevant to the claims and defenses in the matter and, as necessary, notify them of their obligation to preserve that information.
Guideline 7: Factors that may be considered in determining the scope of information that should be preserved include the nature of the issues raised in the matter, the accessibility of the information, the probative value of the information, and the relative burdens and costs of the preservation effort.
Guideline 8: In circumstances where issuing a legal hold notice is appropriate, such a notice is most effective when the organization identifies the custodians and data stewards most likely to have discoverable information, and when the notice:
(a) communicates in a manner that assists persons in taking actions that are, in good faith, intended to be effective;
(b) is in an appropriate form, which may be written, and may be sent by email;
(c) provides information on how preservation is to be undertaken, and identifies individuals who can answer questions about preservation;
(d) includes a mechanism for the recipient to acknowledge that the notice has been received, read, and understood;
(e) addresses features of discoverable information systems that may make preservation of discoverable information more complex (e.g., auto delete functionality that should be suspended, or small sections of elaborate accounting or operational databases);
(f) is periodically reviewed and amended when necessary; and
(g) is followed up by periodic reminder notices, so the legal hold stays fresh in the minds of the recipients.
Guideline 9: An organization should consider documenting the procedure of implement- ing the legal hold in a specific case when appropriate.
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Guideline 10: Compliance with a legal hold should be regularly monitored.
Guideline 11: Any legal hold process should include provisions for releasing the hold upon the termination of the duty to preserve, so that the organization can re- sume adherence to policies for managing information through its useful life cycle in the absence of a legal hold.
Guideline 12: An organization should be mindful of local data protection laws and regula- tions when initiating a legal hold and planning a legal hold policy outside of the United States.
The full text of The Sedona Conference Commentary on Legal Holds, Second Edition: The Trigger & The
Process is available free for individual download from The Sedona Conference website at https://thesedonaconference.org/publication/Commentary_on_Legal_Holds.
©2019 The Sedona Conference. Reprinted courtesy of The Sedona Conference.
(May 2017)
Achieving proportionality in civil discovery is critically important to securing the “just, speedy, and inexpensive resolution of civil disputes” as mandated by Federal Rule of Civil Procedure 1. This is the third iteration of The Sedona Conference Commentary on Proportionality in Electronic Dis- covery, a project started in 2010 by The Sedona Conference Working Group on Electronic Docu- ment Retention & Production (WG1), revised in 2013, and now updated to reflect the significant and evolving emphasis on proportionality under the 2015 amendments to the Federal Rules of Civil Procedure. This Commentary delineates reasonable guidance on the application of proportionality standards that should enable common sense discovery practices and further the objec- tive of the rules.
This Commentary presents six practical Principles of Proportionality:
Principle 1: The burdens and costs of preserving relevant electronically stored information should be weighed against the potential value and uniqueness of the information when determining the appropriate scope of preservation.
Principle 2: Discovery should focus on the needs of the case and generally be obtained from the most convenient, least burdensome, and least expensive sources.
Principle 3: Undue burden, expense, or delay resulting from a party’s action or inaction should be weighed against that party.
Principle 4: The application of proportionality should be based on information rather than speculation.
Principle 5: Nonmonetary factors should be considered in the proportionality analysis.
Principle 6: Technologies to reduce cost and burden should be considered in the proportionality analysis.
The full text of The Sedona Conference Commentary on Proportionality in Electronic Discovery is
available free for individual download from The Sedona Conference website at https://thesedonaconference.org/publication/Commentary_on_
Proportionality_in_Electronic_Discovery
© 2017 The Sedona Conference. Reprinted courtesy of The Sedona Conference.
The Sedona Conference Commentary on ESI Evidence & Admissibility, Second Edition
(October 2020)
The Sedona Conference Commentary on ESI Evidence & Admissibility, Second Edition addresses how the 2017 and 2019 changes to the Federal Rules of Evidence apply to the ever-changing landscape of technology and influence how parties manage electronically stored information (ESI).
The growth of eDiscovery reflects the increasing digitization of information in society, which also results in more relevant evidence being sourced from ESI. This phenomenon means that successful litigators must understand how to get ESI admitted into evidence, which is a different question than preserving or gathering it for discovery. This Commentary focuses specifically on that concern.
The First Edition of this Commentary was published in 2008. This Second Edition provides updated guidance that reflects the advances in technology and the amendments to the Federal Rules of Evi- dence, in particular FRE 803(16), 807, and 902(13) and (14). For example, the changes to Rule 803(16) address authentication of digital information that has been stored for more than 20 years, eliminat- ing the concern that factual assertions made in massive volumes of ESI will be admissible for the truth simply because of their age. The new subsections (13) and (14) to Rule 902 provide for stream- lined authentication of ESI and potentially eliminate the need to call a witness at trial to authenticate the evidence.
This Commentary is divided into three parts. First, there is a survey of the application of existing evidentiary rules and case law addressing the authenticity of ESI. Second, there are discussions about new issues and pitfalls, such as ephemeral data, blockchain, and artificial intelligence, looming on the horizon. Finally, there is practical guidance on admissibility and the use of ESI in depositions and in court.
The full text of The Sedona Conference Commentary on ESI Evidence & Admissibility, Second Edition is available for free individual download from The Sedona Conference website at
https://thesedonaconference.org/publication/Commentary_on_ESI_Evidence_and_Admissibility.
©2020 The Sedona Conference. Reprinted courtesy of The Sedona Conference.
The Sedona Conference Commentary on Rule 45 Subpoenas to Non-Parties, Second Edition
(October 2020) Developments since the 2008 edition of The Sedona Conference Commentary on Non-Party Production and Rule 45 Subpoenas have led to significant revisions and additions now included in this Second Edi- tion. Federal Rule of Civil Procedure 45 (Rule 45) was revised substantially in 2013. The 2015 amendments to the Federal Rules of Civil Procedure also impact Rule 45. The rise of cloud compu- ting has put appreciable amounts of party data into the hands of non-parties, leading to increased use of Rule 45 subpoenas, in turn resulting in a significant growth of the case law under Rule 45. This