Monday, February 22, 2010 Itsy-Bitsy, Teeny-Weeny E-Discovery

An article by Jason Krause in today's Newswire addresses the issue of e-discovery for working in smaller law firms and those who have a solo practice.

Attention to e-discovery is a topic I continually stress in my ethics presentations. It's been my experience that attorneys and paralegals in smaller law firms largely ignore e-discovery, hoping it will just go away and they won't have to ever deal with electronics in litigation. Many aren't even aware of something so basic as Metadata.

This is ethically irresponsible pursuant to the Model Code of Professional Responsibility adopted by the American Bar Association (ABA) Model Code of Professional Responsibility (MRPC) and similar model codes adopted in most states.

According to the ABA's MRPC 1.1, the attorney owes his client the duty to handle the client’s matter with competence and diligence, including the use of methods and procedures that meet the standards of competent practitioners, as well as adequate attention and preparation.

MRPC 1.3 refers to diligence and says the lawyer should pursue a matter on behalf of a client and take whatever lawful and ethical measures are required and also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf.
Nowhere in the Model Rules is there reference to firm size...these rules apply regardless of the size of the firm for which the attorney works. The client deserves to be represented competently, diligently and zealously by any attorney he or she employs.

Mr. Krause quotes John Simek, a computer forensics specialist with Sensei Enterprises:

"We're seeing tremendous growth for small firm e-discovery services. Judges are expecting attorneys to take it seriously and the attorneys realize that ethically they have an obligation to consider digital sources for evidence."

That's exactly what Judges expect and also what clients have a right to receive. Any attorney who ignores e-discovery are flirting with malpractice.
As Mr. Krause writes:
Unfortunately, lawyers who haven't been involved in major litigation involving digital documents probably haven't had a chance to learn things that some big firms have learned the hard way. Even more, small and solo firms often have hurdles to overcome that large-scale litigators never have to think about.

For example, many lawyers who have never been involved in e-discovery before may mistakenly believe that printing an e-mail might be an obvious way to produce a document. However, there is a body of law that may require litigants to preserve metadata or other digital features in a document that are lost when printing. And while large firms can typically hire professional forensic examiners, small firms trying to operate on a tight budget might be inclined to do forensic examinations themselves, which could open up a host of problems.
E-discovery is a huge and complicated area. Admittedly,it is easier for a firm that has an IT staff knowledgeable in e-discovery. On the other hand, every firm should be sending staff (including attorneys) for training. There are some very good programs offered by NALA, Kroll Ontrack, Teris and Fios, for a start. The Association of Litigation Support Professionals (ALSP) also offers information and training.

Even basic training that exposes staff to the in's and out's of e-discovery is better than pretending that it doesn't exist at all.

The article authored by Mr. Krause is worth reading and can be accessed by following this link.

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