The rate at which electronic information is beginning to pervade case discovery is astounding, to a point where almost every case has the “potential” to include electronic information in discovery. This “e-discovery” as it has come to be called is the basis of a number of opinions from the legal field from Florida to California concerning an attorney’s legal obligation NOT to be ignorant of these laws. Find out what you may need to understand about e-discovery and ethics and what is expected from you and your staff in this article.
Current E-Discovery Opinions
The California and Florida State Bars are two legal governing bodies that have recently released opinions on social media and e-discovery ethics in order to get lawyers to understand not only what it is, but how to stay on the good side of judges.
The California Opinion deals with e-discovery and electronically stored information (ESI) and what skills that lawyers should have in order to respect the integrity of the information. There are a number of skills and knowledge that are now required by all lawyers with respect to ESI. It is no longer acceptable to be complacent about this rich area of information in the discovery process. No longer do the courts accept a client’s verbal affirmations that they “did not know” they could not delete their entire social history without consequences.
As the client’s attorney you can set up an e-discovery protocol to ensure this process is handled ethically with your client and with opposing counsel. The first step is to be able to assess a client’s ESI and implement measures for its preservation, such as litigation hold procedures and suspending auto-delete programs until the litigation is over. By understanding your client’s storage and electronic systems and platforms used you can advise them on collection, preservation and introducing effective privacy for ESI without compromising its integrity.
In the Florida Bar’s Opinion it dealt more specifically with client’s social media ESI, where it was discussed how clients could still change their privacy settings on these networks to prevent discovery disasters while at the same time preserving the integrity and viability of the information. Essentially as long as these privacy settings can be put into place without damaging or deleting the information, attorneys can advise their clients to do so. New York also cites in their recent opinion how there is a duty by the attorney to advise clients how to proceed without evidence spoliation and a duty to preserve the information.
Tips For Proper Protocols
Here are some of the top tips on understanding e-discovery and implementing proper protocols in your firm now, so you do not become the object of an annoyed judge’s anger.
1. Learn E-discovery. It is not a matter of “if” but a case of “when” you will need to conduct e-discovery. If you have not learned the ethical rules expected of you ahead of time, there is a good chance you will be caught in the crossfire by opposing counsel and the judge.
2. Have a Protocol. It may seem simple, but many firms still do not have hard and fast rules about e-discovery and ESI policies.
3. Monitor Everyone. As a lawyer it’s not only your prerogative to advise your clients of these rules, but you are actually responsible for your employees to follow these rules as well.
4. Advise Clients. At the very beginning of the consultation process e-discovery needs to be discussed. Clients need to understand that erasing electronic information on social media platforms or in business software is a criminal offense.
5. Be Prepared. It is often requested of attorneys by a judge in a case involving ESI to prepare a joint e-discovery plan with opposing counsel. These requests are usually required to be done quickly.
The process of e-discovery is growing more complex and many legal pundits are expecting more opinions on the ethical ramifications of these issues. Yet one thing remains clear, as a legal representative, you are required to be aware, educated and proactive in your approach.