Five Questions to Test Your Understanding of the Ethics of Technology

More than 28 states now say lawyers have an ethical duty to be competent in technology. Indeed, a State Bar of California ethics opinion recently extended that duty to include competence in e-discovery, CA Formal Opinion No. 2015-193.

On top of that, the federal courts have implemented new proportionality rules governing your duty to produce documents. All of this comes as lawyers grapple with thorny ethical issues concerning the use of cloud technology, storing privileged documents with outside vendors, and relying on key tasks on smart but non-human computer algorithms.

So what are your ethical duties with using new technology, such as technology assisted review (TAR) in e-discovery? A careful look at five key questions surrounding the ethics of TAR can help you use it in a way that is strategic, reasonable and proportional to the matter. And will save you and your client on review costs.

What does the duty to be technologically competent mean?

ABA Model Rule 1.1 outlines several core duties to be technologically competent: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

Comment 8 to Rule 1.1, adopted by 28 states thus far, extends these duties: “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education, and comply with all continuing legal education requirements to which the lawyer is subject.”

Recently, State Bar of California Committee on Professional Responsibility and Conduct expanded the breadth of the competence requirement stating: “In today’s technological world, almost every litigation matter potentially” involves e-discovery. This means that every attorney who handles matters in court must have at least a baseline level of competence in and an understanding of e-discovery.

In California at least, and likely other jurisdictions, a trial attorney will be required to assess his or her own discovery skills as part of the duty to provide competent representation. If you feel you lack the required competence for e-discovery issues, you have three options:

  1. Acquire sufficient learning and skill before performance is required.
  2. Associate with discovery consultants or counsel.
  3. Decline the representation.

Can I ethically use the cloud to manage discovery documents? If so, what are my responsibilities to ensure confidentiality?

With discovery volumes increasing, many lawyers and law firms are turning to the cloud, whether public or private, for their litigation support needs. Are their ethical prohibitions in doing so? No. But you need to be aware of a few things.

ABA Model Rule 1.6 requires lawyers to make “reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” This, of course, includes discovery documents.

In 2017, the ABA Ethics Committee revised revisited its 1999 opinion allowing unencrypted email to suggest that some circumstances warrant “particularly strong protective measures” including encryption. ABA Ethics Committee Formal Opinion 477.  The Opinion relies on 2012 changes to the Model Rules, particularly the addition of Model 1.1 and changes to Rule 1.6 regarding client confidences.

While the opinion focuses on email, it could be extended to discovery documents. At a minimum, it suggests that you have a duty to ensure that a third-party cloud provider provides reasonable security over discovery data and is bound to protect client confidentiality.

Among other things, you should consider:

  • The sensitivity of the information
  • The likelihood of disclosure if additional safeguards are not employed
  • The cost and difficulty of employing additional safeguards
  • The extent to which safeguards adversely affect a lawyer’s ability to represent their clients

Going further, lawyers should consider where the discovery data is stored and, in general, conduct due diligence on the vendors they are using to manage discovery documents.

What are my ethical responsibilities in hiring outside vendors for litigation support and document review?

Lawyers have a duty to supervise those working for them. ABA Model Rule 5.3 puts the onus on lawyers to ensure that their service providers act ethically. Thus, the responsibility for every phase of discovery rests on lawyers, not third parties. Lawyers may rely on outside vendors, a subordinate attorney or even the client, but they must maintain overall responsibility for and remain engaged in the work of the expert.

At a minimum, lawyers must make sure their vendors understand the importance of confidentiality, the fact that discovery documents contain personal and business confidential information and their duties as discovery vendors.

How can I ethically use TAR to make my review more efficient and cost-effective?

The goal of any review, whether linear, keyword search or one using technology assisted review, is to find relevant documents. When you respond to a production request, you have the affirmative duty to make reasonable efforts to find the requested documents and to produce them.

The obligations surrounding a TAR review have their foundation in Fed. R. Civ. P. 26(g). It states that: “Every… discovery request, response, or objection must be signed by at least one attorney of record in the attorney’s own name” verifying that to the best of the lawyer’s knowledge, a reasonable inquiry and efforts were made.

To meet these obligations, you need to understand the strengths and weaknesses of different approaches to finding responsive documents. For starters, you need to be able to answer questions like these:

  1. Have we gone to the right sources to be confident we are securing responsive data?
  2. Have we asked the right questions to ensure we are getting responsive data?
  3. Have we collected the data in a reasonable way such that we will preserve the right files and related metadata?
  4. Did we use reasonable culling methods to weed out obviously non-responsive documents?
  5. Did we use a reasonable method to review the remaining documents in order to find responsive ones?
  6. Did we find a reasonable percentage of responsive documents?

Ultimately, you need to understand the methods used at each step of the process and be prepared to show the procedures used for each were reasonable.

Not surprisingly, the preservation and collection stage is the “gateway” to a TAR review. Whether a reasonable search was conducted typically turns on whether the collection was sufficiently broad and comprehensive.

At the review phase, there are two key areas lawyers can control to comply with their TAR obligations. The first is training. In this phase, lawyers should understand the downstream implications of seeding and training. When you’re using a seed set, this means understanding the difference between judgmental and random samples. Unlike a random sample, a judgmental sample may not be representative of an entire population. This means you could miss critical issues in the case and thus be unable to fulfill reasonableness obligations. It’s important for lawyers to understand how to correct for this problem by applying algorithms such as contextual diversity. This serves as an additional defensibility safeguard.

The second important area is TAR validation. Validation answers the core question: When you produce documents, how do you show you have made a reasonable, proportional production? More specifically, have you produced a reasonable number of relevant documents? In addition to determining the appropriate measures such as recall and precision, lawyers may need to understand other factors to show they implemented a reasonable and proportional validation protocol. There is also new guidance on TAR validation, notably the new validation protocol in In Re Broiler Chicken Antitrust Litigation (Jan. 3, 2018, N.D. Ill) that applies not only to TAR but also other types of review such as linear and keyword searching.

In sum, while perfection isn’t required in e-discovery, the courts expect lawyers to act reasonably. Understanding your obligations surrounding the use new technology such as TAR—as well as where in the process you can control variables to achieve a reasonable review—can give you and the client comfort that you have complied with your obligations.

What are the implications of Federal Rule of Civil Procedures 26(g) for discovery certification by trial attorneys?

In the final analysis, you need to know that by signing a Rule 26(g) certification, you are certifying that to the best of your knowledge, information, and belief formed after a reasonable inquiry, you have made reasonable efforts to secure responsive documents for the production. Let me emphasize that the standard is reasonableness, not perfection. The only time a lawyer can get sanctioned is if they certify a production without reasonable justification. (Fed. R. Civ. P. (26(g)(3)).

There is a lot to be said about the need to understand the processes used to collect documents, to cull through them and the methods used to find a reasonable percentage of relevant documents. For the purposes of this short article, if you don’t understand these issues, associate with counsel or a vendor who does. That is the safest and most ethical course. And, you will sleep better at night.

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