New Ethical Issues and Challenges in E-Discovery

http://ow.ly/6OtiX

An article by Elizabeth E. McGinn and Karen M. Morgan published by the New York Law Journal, and appearing on law.com on the LTN webpage.

This article discusses the complex nature of the relationships between outside counsel attorneys, in-house counsel, and eDiscovery service providers.

The article states, "Attorneys are facing emerging challenges both inside and outside their legal teams, regarding the supervision of vendors, contract attorneys, overseas labor, and in-house counsel; the need for cooperation and transparency with opposing counsel; and the discovery of electronic information stored outside the United States."

The article provides detailed narrative, and advice regarding the following points:

"WITHIN THE LEGAL TEAM
A. Discovery Responsibilities -- The Duty to Make a "Reasonable Inquiry."
B. Ethical Considerations Regarding Vendors, Outsourcing, and Legal Support Staff.
C. Ethical Duties of In-House Counsel.

OUTSIDE THE LEGAL TEAM
A. Ethical Obligations Regarding Cooperation and Transparency With the Opposition.
B. Ethical and Legal Challenges of E-Discovery Stored Outside the United States."

The authors provides examples of case law, case studies, and ABA opinions, that all provide useful guidance for dealing with these issues.  In addition, a link to the Sedona Conference Cooperation Proclamation is also provided.

The authors further state, "The vast increase in the amount of information involved in e-discovery has led to an increase in the number of players in the e-discovery process. As a result, attorneys need to be skilled not only in the practice of law, but the management of vendors, contract attorneys, legal support, and in-house counsel. A 2010 study showed that sanctions for e-discovery violations are increasingly common, and monetary sanctions are increasing."

In addition, the authors state, "...ethical duties of cooperation and transparency to opposing counsel have become increasingly relevant with the growth of e-discovery. In addition, e-discovery poses unique problems and challenges when it comes to complying with foreign privacy laws."