Ethics and Electronic Discovery: New Medium, Same Problems

Article excerpt

IN MICHAEL A. GOLD'S article Electronic Discovery and Retention Guidance for Corporate Counsel, he states that, "[s]o far as ethics rules themselves are concerned, there really is nothing new under the sun." (1) Why then is an inquiry into the ethical concerns of electronic discovery necessary? The answer lies in the complexity of electronic discovery. As Gold suggests, the complexity is not that electronic discovery changes a lawyer's notion of right or wrong. Not acting in good faith is still usually wrong, and ignorance is seldom a good justification for wrongdoing. The complexity lies in the fact that electronic discovery has added a completely new dimension to the litigation process. (2) Electronic information is the primary medium of modern business transactions. "[M]ore than 90% of all corporate information is electronic; North American businesses exchange over 2.5 trillion e-mails per year; today, less than 1% of all communication will ever appear in paper form; and, on average, a 1000-person corporation will generate nearly 2 million emails annually." (3) With respect to litigation, sorting through that new dimension has obscured the ethical rules and law as they applied to paper discovery. Today, a growing body of case law, model rules, academic commentary, third party vendors, and in-house firm departments have developed electronic discovery into its own area of the law. The ethical questions in this nascent area of the law tend to deal with turning new factual scenarios into recognizable dilemmas. The following study will attempt to chronicle some of electronic discovery's more salient areas of ethical concern. The purpose of such an inquiry is primarily instructional. For when an attorney is faced with an unclear aspect of the litigation process, "parties who are prepared and take reasonable steps to comply with their obligations will be in a better position to defend their efforts [regarding] e-data than those who do not." (4) "Litigators who ignore the fact that more than 90% of potentially discoverable information is generated and stored electronically risk facing dissatisfied clients, accusations of ethical violations, malpractice suits, and judicial sanctions for failure to comply with electronic evidence obligations." (5)

Statistics give an indication of the areas of legal practice that seem to be the most problematic with respect to electronic discovery. In a survey of 45 federal cases and 21 state cases where the requests for sanctions were based on electronic discovery, the following are the categories in which the sanctions broke down: tort--24%; intellectual property--20%; contract--18%; and employment--15%. (6) In these cases, sanctions were granted 65% of the time. Defendants were the ones sanctioned in 81% of those cases. (7) What is particularly relevant to this study is that 84% of the time, cases resulting in sanction involved the destruction of electronic documents rather than delay in production. (8) Furthermore, 49% of sanctions were for willful or bad faith violations. (9) Again, like Gold said, there is really nothing new under the sun in electronic discovery. However, perhaps the complexity of the electronic discovery process is such that there are more openings or ambiguous areas that those with bad faith are tempted to exploit. The sanctions seem to look for bad faith, not merely unwise practice. Consequently, the sanctions do not seem to Be overly paternalistic. In the aforementioned study there was not "a single case where a court sanctioned a party solely for following its document retention and recycling policy; there was always another consideration." (10) That study illustrated the point that courts are sanctioning for electronic discovery violations, and the sanctions are generally for the same types of violations that pervade paper discovery. The situations that do not involve bad faith or intentional wrongdoing, but instead rest on concepts like reasonableness and good faith are the more difficult and ethically ambiguous cases. …