Symposium: Ethical Issues in E-Discovery, Social Media, and the Cloud

Article excerpt

This fall, members of the Rutgers Computer and Technology Law Journal (RCTLJ) had the great honor to sit down with the Hon. Ronald J. Hedges, former United States Magistrate Judge, and Maura R. Grossman, Esq., to discuss emerging issues related to electronic discovery.

Judge Hedges served as a United States Magistrate Judge in the United States District Court for the District of New Jersey from 1986 to 2007. Presently, he is the principal of Ronald J. Hedges LLC and is of counsel to Corodemus & Corodemus. He has extensive experience in e-discovery and managing complex litigation, and has served as a special master, arbitrator, and mediator.

Maura R. Grossman joined Wachtell, Lipton, Rosen & Katz as an associate in the litigation department in 1999 and was appointed as Counsel in 2007. She focuses her practice primarily on legal, technical, and strategic issues involving electronic discovery and information management, both domestically and abroad.

Judge Hedges and Ms. Grossman spoke at RCTLJ's CLE symposium entitled, "Ethical Issues in E-Discovery, Social Media, and the Cloud," on October 23rd, 2012. This discussion took place on November 7th, 2012. (1)

RCTLJ: When opposing counsel is clearly inept when working with electronically stored information (ESI), for instance, choosing a poor set of search terms, what should an attorney do to uphold the interest of justice?

HEDGES: In a civil proceeding, an attorney has no obligation to do anything in the interest of justice. The attorney's obligation is to represent his or her client and to conform to the Rules of Professional Conduct. (2) However, if the attorney knows that his or her adversary is doing something wrong and that the attorney has made an affirmative assertion to the contrary to the adversary or the court, then an obligation to do something arises. (3)

In a criminal proceeding there are obvious constitutional issues. For instance, a United States Attomey must see that justice is done. If she believes that an injustice will result due to the mishandling of ESI, she may have to step in and tell the court. (4) The prosecutor must also think about the prospect of an incipient habeas corpus petition or other post-conviction action.

GROSSMAN: I agree with Ron; I am not aware of any ethical rule that requires you to help your adversary. Obviously you cannot make misrepresentations and both parties have an obligation to be competent. (5) However there may be strategic reasons to educate or assist opposing counsel when it will benefit your client.

HEDGES: One thing I would suggest, if you are going to make that decision to help the other side, I think that this is a very important area to secure informed consent beforehand from your client.

RCTLJ: During our symposium you both emphasized the need for attorneys to be competent. Are judges also attaining and exhibiting the requisite technological expertise?

HEDGES: There is always a need for improvement and there does seem to be a distinction between federal and state judges. The federal courts have far more resources available to educate judges. (6) For example, Maura and I just participated in a judicial training program on ESI. I do not know if state courts are able to provide such programs. However, there is no set level of expertise for any judge.

Additionally, The Sedona Conference(r), of which Maura and I are members, has recently made a new edition of the Sedona Cooperation Proclamation--Resources for the Judiciary that will help judges navigate through ESI issues during litigation. (7)

GROSSMAN: I think that just as in the bar, there are a range of capabilities; some people are extraordinarily talented and knowledgeable in this area and others are near the end of their legal careers and do not want to deal with ESI. The same is true for judges. But there are many educational forums where judges can go to learn about electronic discovery. …