Ethical Issues in the Digital Age: Navigating E-Discovery Challenges

American Bar Association
10 minute read | November.01.2012

Today’s technological changes have fueled an explosive growth of electronically stored information (ESI). For attorneys, these shifts in technology have fundamentally altered the practice of discovery, presenting new and complicated ethical challenges not encountered in the paper world. To manage the e-discovery process, attorneys increasingly require assistance from vendors, contract attorneys, and in-house counsel. Many attorneys struggle to monitor these complex relationships, and sanctions for e-discovery violations have become increasingly common. See Dan H. Willoughby Jr., Rose Hunter Jones, Gregory R. Antine, “Sanctions for E-Discovery Violations: By the Numbers,” 60 Duke L.J. 789 (2010). Attorneys need to be aware of their ethical obligations during e-discovery and focus on developing skills that foster the effective management of this process so that they may “secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1.

The Duty of Competence in E-Discovery

The starting point for any discussion about e-discovery and ethics must begin with the issue of competence. Under Rule 1.1 of the ABA’s Model Rules of Professional Conduct, a lawyer must “provide competent representation to a client.” Recognizing the importance of technology in the practice of law, on August 6, 2012, the ABA’s House of Delegates approved changes to the comments of Rule 1.1. The revised comments clarify that competent representation to clients requires attorneys to understand “the benefits and risks associated with relevant technology.” Model Rules of Prof’l Conduct R. 1.1 cmt. 8. Therefore, it is imperative that attorneys overseeing the e-discovery process have a solid understanding of the capabilities and functions of the various e-discovery tools employed during the review and production of ESI.