leading the way - Commercial Law League Of America

ethical
considerations
in Light of the Recent E-Discovery
Amendments to the Federal Rules
(continued from page 11)
15 American Bar
Association Formal
Opinion 06-442
(August 5, 2006).
16 Maryland State
Bar Association,
Committee on Ethics,
Opinion 2007-092
(November 2006).
What remains unclear
is whether the
Maryland Bar
Association would
reach a different
conclusion if the
metadata contained
privileged information.
17 New York State
Bar Association,
Committee on
Professional Ethics,
Opinion 749
(December 14, 2001).
18 Florida Bar Association,
Confusing matters further, those states that have considered the ethical implications of metadata mining have
reached differing conclusions. The Model Rules contain no specific rules prohibiting it, 15 and the Maryland
Bar Association has issued an ethics opinion stating that “there is no ethical violation” if a lawyer “reviews or
makes use of the metadata without first ascertaining whether the sender intended to include such metadata.” 16
In contrast, however, the New York Bar Association has issued an ethics opinion prohibiting lawyers from
“mak[ing] use of computer software applications to surreptitiously ‘get behind’ visible documents or to trace e-
mail.” 17 The Florida Bar Association has reached a conclusion similar to that of New York. 18 With respect to
metadata, therefore, counsel’s obligations remain either uncharted or dramatically different depending upon
which state’s law applies.
Conclusion
As the Zubulake V court cautioned: “Now that the key issues have been addressed and national standards are developing,
parties and their counsel are fully on notice of their responsibility to preserve and produce electronically
stored information.” 19 Counsel’s obligations in this regard derive from their ethical obligations to represent a
client’s interests competently and diligently. Those obligations are not new. The world in which they apply,
however, has changed dramatically and will continue to do so. Counsel, in order to satisfy their ethical obligations
and the newly amended Federal Rules are required to stay abreast of those changes.
Ms. Branthoover is a partner of Kirkpatrick & Lockhart Preston Gates Ellis LLP and
practices in the area of complex commercial litigation, with a particular focus on insurance
coverage matters related to environmental, toxic tort and product liabilities. She has
represented major industrial clients in numerous state and federal courts throughout the
country.
Ethics Committee
Opinion 06-02
(September 15, 2006).
Carolyn M.
Branthoover
Karen I.
Marryshow
Ms. Marryshow is an associate in the litigation group, and practices in the
e-Discovery Analysis & Technology Group and Records Management practice.
19 Zubulake V, 229 F.R.D.
at 440.
Error & Omission Insurance
We specialize in providing insurance coverage
for the Collection Industry. Both attorneys and collection agency malpractice
coverage available.
Todd Associates, Inc
5875 Landerbrook Drive
Suite 120
Cleveland, OH 44224
Debt 3 March/April 2007
12
For Information contact:
Gary Ochi
1-800-878-2450
e-mail:gochi@toddassociates.com
We are the insurance broker for the $3,500,000 bond carried by American Lawyers
Quarterly and The General Bar.