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Features: THE FUTURE OF LAW PRACTICE when the document was created, last modified or viewed. Thi data reveals edits which may have been made, including notations by in-house counsel. Plainly stated, “[t]he days of simply photocopying and reviewing the contents of a file cabinet have passed.” 20 Juxtapose modern day ESI reality with the duty of competence. One commentator aptly describes the impact of modern day ESI as “seismic.” 21 To avoid malpractice traps and the court’s ire, today’s counsel must be at least somewhat familiar with commonplace storage and retrieval strategies, preservation issues, production formats, and metadata. 22 If counsel is not comfortable with such topics—and most are probably not—they should be prepared to either (1) acquire such knowledge before undertaking representation in a manner involving ESI, (2) associate with other counsel and relevant experts, or (3) decline the representation. ETHICAL DUTIES AND E-DISCOVERY Given the fundamental difference between the information of yesteryear and the modern reality of information availability, “old-fashioned” discovery management may invite ethical issues. Essentially, a lawyer who is not capable of addressing ESI issues, or procuring the assistance of others, may not be competent under emerging ethical standards. 23 The Kentucky rule of competence is derived from ABA Model Rule of Professional Conduct 1:1. The ABA commentary now states that lawyers must “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” 24 While the commentary to the Kentucky rule has not been amended to include this specific language, guidance can be found within our existing commentary: “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice.” 25 The advent of ESI is arguably a change in legal practice. Plus, a growing body of case law and ethics opinions from other jurisdictions should serve as a cautionary flag or Kentucky lawyers who wish to practice in ESI cases. For example, the State Bar of California recently opined that attorneys handling E-Discovery matters, either by themselves or in association with competent co-counsel or expert consultants, should be able to: initially assess E-Discovery needs and issues, implement appropriate ESI preservation procedures, analyze and understand a client’s ESI systems and storage, advise the client on available options for collection and preservation of ESI, identify custodians of potentially relevant ESI, engage in competent and meaningful meetings and confer with opposing counsel concerning an E-Discovery plan, perform data searches, collect responsive ESI in a manner that preserves the integrity of that ESI, and produce responsive non-privileged ESI in a recognized and appropriate manner. 26 This broad opinion summarizes what has become the standard of practice in much of the country. A. INITIAL ASSESSMENT OF E-DISCOVERY NEEDS AND ISSUES Not every case involves E-Discovery, but in today’s increasingly technological world, nearly every case potentially does. 27 It is almost a certainty that in all litigation some party, employee, or witness has utilized an electronic device which stores ESI. Counsel should preliminarily be able to assess whether data is likely to exist, where it might exist within a client or witness’s data storage system(s), and the probable costs associated with preservation. Early on, counsel should also determine whether the client, the opposing party, or the relevant court require that the litigation be conducted as an E-Discovery case. If unable to perform these tasks, attorneys run the risk of sanctions or discipline. 28 In some instances, a multi-disciplinary team approach may be necessary to conduct such an initial evaluation. 29 Thisteam might include outside and in-house counsel, personnel familiar with the client’s IT structure, and compliance officer In the California Bar’s hypothetical, an attorney might be subjected to discipline where the attorney “failed to make an E-Discovery evaluation early” to determine case specific E-Discovery needs and his own E-Discovery capabilities prior to the first court ordered case management conference. 30 Such an assessment requires some degree of experience and “a working knowledge of the case law and professional literature.” 31 Too often, E-Discovery failures result in sanctions because evidence is not timely produced or is lost altogether. 32 B. IMPLEMENTATION OF ESI PRESERVATION PROCEDURES One of the distinguishing characteristics of ESI is that it is ethereal—it lacks substance and can disappear. Data can be lost for a variety of reasons and some are neutral such as technological failure or routine document retention or disposal policies. Theloss of relevant ESI, regardless of whether the loss is neutral or nefarious, creates severe repercussions for lawyers and clients. A lawyer or a party with superior access to information who engages in “advantage seeking behavior” by permitting or encouraging the loss (spoliation) of information reasonably necessary for litigation is subject to sanctions and attorneys are subject to discipline. 33 Generally, the obligation to preserve evidence arises when parties knew or should have known that evidence may be relevant to future litigation, or it may arise from statutes or regulations. 34 In some jurisdictions, lawyers have been sanctioned by bar authorities for unethical conduct relating to the lack of “experience in electronic discovery” which resulted in the loss (spoliation) of evidence. 35 For attorneys, the failure to institute a sufficien “litigation hold” for potentially relevant data can be problematic. 36 Counsel should also be cautioned that courts may impose sanctions relating to a party’s failure to comply with discovery orders, including those involving retention and production of ESI. 37 Where a pattern of “ineptitude and missteps” by counsel or a party results in the withholding of data relevant to litigation, extremely hefty sanctions may result. 38 In Kentucky, though spoliation issues are normally dealt with through jury instructions, a lack of applicable case law, statutes, and procedural rules makes it difficul to determine when litigation could be reasonably anticipated. Cautious attorneys who adopt a “better-safe-than-sorry” approach should consider implementation of a litigation hold whenever a credible threat exists that the client will become involved in litigation. 39 14 | JULY/AUGUST 2016
C. TIMELY COLLECTION AND PRODUCTION OF RESPONSIVE ESI Though much of the developing law relating to ethical issues involving ESI concerns counsel’s competence, or lack thereof, of greater concern may be those instances involving breaches of the duties of candor and fairness. Lawyers are barred from unlawfully obstructing another party’s access to evidence, knowingly disobeying an obligation under the rules of the tribunal, deliberately refusing to make reasonably diligent efforts to comply with a legally proper discovery request, and knowingly making false statements of fact. 40 In essence, these rules ensure that truthful information is presented to the courts, juries and opposing counsel so that each may rely on that information in making decisions. 41 Attorneys who allow inaccurate digital information to be presented to opposing counsel or the court risk adverse jury instructions; monetary sanctions, such as the imposition of fines shifting of attorney’s fees; and disciplinary action. Theuse of “scorched-earth” or obstructionist approaches to discovery is particularly problematic and may run afoul of ethical canons. In Wachtel v. Health Net, Inc., an ERISA action, counsel repeatedly failed to preserve emails, did not produce relevant documents, and used boiler plate objections to obstruct or delay the production of ESI. 42 This led the court to conclude that counsel’s strategy had been “a concerted war to waste huge time and resources.” 43 Further, the corporate defendant failed to timely search and produce responsive documents thereby inhibiting the plaintiff ’s ability to adequately prepare for depositions and dispositive motions, willfully concealed that ESI searches never occurred, compelled the plaintiffs to repeatedly seek court intervention for discovery abuses, employed a strategy of delay, and concealed non-compliance with court orders regarding discovery matters by “systematically ignoring adverse rulings.” 44 As such, “aggressive sanctions” were appropriate. 45 D. DISCLOSURE OF CONFIDENTIAL ESI Lawyers who lack competence with regard to E-Discovery issues may be unaware of the risks associated with the unintentional production of confidential material to an opposing party. These disclosures typically, but not always, occur when counsel fails to ensure that discovery materials are scrubbed to eliminate problematic metadata. 46 Metadata is information that characterizes data—i.e., data about data. 47 “In essence, metadata answers who, what, when, where, why, and how about every facet of the data that are being documented.” 48 It includes retained data relating to a document’s “title, author, date of origin, content, size and location, but may also include corrections, comments, deletions and other information stored in track changes.” 49 “Some metadata, such as file dates and “In a clawback agreement, both parties to a dispute agree in writing that inadvertent production of privileged materials will not automatically constitute a waiver of privilege. If the producing party realizes the disclosure in a reasonable time, it can request the document's return, or “claw it back,” and the other party must comply. Therequesting party is presumptively barred from using the privileged document to further its client's case.” – Laura C. Daniel, The ubious Origins and Dangers of Clawback and Quick-Peek Agreements, 47 Wm. & Mary L. Rev. 663, 666 (2005). sizes, can easily be seen by users; other metadata can be hidden from users but are still available to the operating system or the program used to process the data set or document.” 50 Thosecomments, deletions and corrections are ripe for ESI savvy lawyers who employ a technique known as “metadata mining”—purposefully searching for metadata inadvertently sent by a producing attorney, which is hidden within an electronic document and may include privileged information. 51 Under our ethics rules, “[a] lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent.” 52 In some states, ethics opinions specifi ally address the affirmative duty of counsel to ensure that confide - tial metadata is protected from inadvertent disclosure. 53 By way of example, the Mississippi Bar has determined that “[c]onfide - tial information contained within the metadata is subject to the provisions” of the ethics rules regarding protection of a client’s confidential in ormation. 54 Lawyers who inadvertently disclose confidential information contained within ESI also risk waiver of any privilege, potentially harming their client’s interests. 55 Recognizing this risk, knowledgeable attorneys may seek to enter into “non-waiver” agreements with opposing counsel to protect a responding party from the consequences of an inadvertent waiver. However, counsel should be aware that such agreements may not be enforceable against third parties. 56 These agreements, now better known as “clawback provisions,” “evolved as a contractual safeguard to mitigate the risk of inadvertent waiver of the attorney-client privilege or work-product doctrines,—especially when dealing with a large volume of documents.” 57 Because inadvertent disclosures in cases involving large amounts of ESI are possible, some jurisdictions incorporate “clawback” provisions within their procedural rules. 58 Even absent such rules, as in Kentucky, lawyers competent in ESI issues should know of the risk associated with unintentional disclosures and prepare for that eventuality by associating with qualified experts and executing non-waiver agreements with opposing counsel. CONCLUSION Ultimately, attorneys bear responsibility for the conduct of discovery. 59 A lawyer’s conduct in handling ESI issues which the lawyer is not competent to handle alone, even without Kentucky specific civil or criminal rules of procedure, presents a risk of sanctions for unethical or impermissible conduct. Theseproblems arise from the failure to properly assess the ESI implications of a particular piece of litigation, an inability to handle the ESI issues, the failure to preserve all relevant evidence in a timely and effective fashion, the failure to produce responsive data, or the inadvertent disclosure of privileged data. Though Kentucky lacks procedural rules and case law relating to most E-Discovery issues, experiences in BENCH & BAR | 15
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