New England Biz Law Update
As electronic discovery continues to proliferate, attorneys are faced with an increasingly dangerous minefield of ethical issues.
John M. Barkett, a lawyer in Miami, recently authored “The Ethics of E-Discovery,” the first book to specifically address the ethical implications of e-discovery and provide guidance to practitioners.
The 125-page book discusses concerns ranging from the mining of metadata (discussing in detail the spectrum of ethics opinions on the topic) to the duty of candor, using the Qualcomm v. Broadcom case as a cautionary tale.
Barkett recently spoke with Lawyers USA, a sister publication of New England In-House, about his book and the intersection of e-discovery and ethics.
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Lawyers USA: How does electronic discovery present ethical issues for lawyers?
BARKETT: The technological era that we live in has complicated our legal lives ethically, and we have to adjust. In the old days, when discovery involved a bunch of paper in a warehouse, things weren’t as complicated.
Today we have issues with vendor contracts and metadata, and now, being able to defend searches of electronic information before a judge after the Victor Stanley case. (In this case, a U.S. District Court ruled that defense lawyers who inadvertently produced privileged documents had waived the privilege because they failed to conduct a reasonable review and were unable to explain their search methodology.)
Ethically, it’s essential to know enough about what you are doing that you don’t violate the rules regarding competence. You have to know what you are doing in order to defend your work.
LWUSA: How did this book come about?
BARKETT: I saw a confluence of circumstances and trends. Speaking at e-discovery conferences, I saw too many examples of lawyers with a “deer-in-the-headlights” facial expression. Then opinions on metadata started coming out, with courts reaching different results in various states, and then I realized competence was also an issue.
I had an encounter in a big lawsuit where a company wanted to switch e-discovery vendors and the vendor asked for $16 million before they would transfer any data, invoking a clause in their contract. Mercifully, the contract had been negotiated by the client and not the law firm, but I thought, “What if the law firm had done it?” That would be a malpractice claim right there.
LWUSA: Why is metadata such an important issue?
BARKETT: Metadata, and the issue of whether or not to mine for it, has only gotten more confusing. More courts have weighed in recently with new opinions and broadened the split. If the opinions begin by emphasizing the importance of protecting the attorney-client privilege at all costs, then you know you can’t mine for metadata. But if the opinion starts with an emphasis on the importance of zealously representing the interests of your client, then you know it will be OK to mine for data.
LWUSA: Can lawyers avoid the dangers of metadata?
BARKETT: No litigant should be engaging in electronic document production without a case management order providing for the return of inadvertently produced information, whether metadata or privileged information. Under new Federal Rule of Evidence 502, if you have such an order, there is no waiver of the privilege. For self-protection, lawyers are ill-advised not to enter into such an order.
LWUSA: In your book, you discuss the issue of outsourcing, both internationally and at a local level, by hiring an outside vendor to perform e-discovery services. Why is this something lawyers should be concerned about?
BARKETT: Lawyers have to know who they are dealing with and make sure that [vendors] have a lot of protections and safeguards in place and that their procedures are secure. In the book, I include a checklist of things lawyers should consider when entering into a vendor contract. Even better, have the client perform the audit of the vendor and relieve you of these obligations.
LWUSA: You also reference Model Rules 5.1 and 5.3, which relate to the supervision of associates and non-lawyers, such as paralegals. How do those rules relate to e-discovery?
BARKETT: I speak at conferences, and when I talk with people after my presentation I often meet associates who tell me they are the e-discovery expert at their firm. When I ask them who supervises them, I get a blank look. There was a case in Washington, D.C., where a supervising lawyer was sanctioned by the bar based on a local rule, which [establishes] a standard of what the lawyer “know[s] or [has] reason to know.” If you are in a jurisdiction with this standard, you sure as heck better supervise the members of the firm because you can be held responsible for their actions.
