Ethics and Electronic Discovery: New Medium, Same Problems

By Wang, Zachary | Defense Counsel Journal, October 2008 | Go to article overview

Ethics and Electronic Discovery: New Medium, Same Problems


Wang, Zachary, Defense Counsel Journal


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. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Ethics and Electronic Discovery: New Medium, Same Problems
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.