Ethics & eDiscovery: A Love Story

Mar 19, 2018 2:23:41 AM / by Jennifer Roberts

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Discovery is inherently a team sport. The document review attorney takes the lead on a project, but non-attorney participants like legal secretaries or IT professionals are just as involved and bound to the same rules. To add another layer to the process, online and mobile communication of all types — social media, texts, involvement on public forums — throws each person into a web of ethical gray areas: How much needs to be understood about the technology we’re dealing with? What is private and public information? To what rules are the attorney and non-attorney bound in the thick of a case requiring electronic discovery?

There’s a lot to keep up with, and with tech evolving at the rate it does, change is constant. Stick to the focal points.

The Personnel

When it comes to ethical duties, we need to look at the ABA Rules of Professional Conduct’s responsibilities for both non-attorney and attorney eDiscovery team members. Rule 5.1 puts responsibility on the supervising lawyer to “make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.” Similarly, Rule 5.3 requires the same in regard to non-lawyer participants. Like with any type of project management, who is ultimately responsible for the actions of non-attorney personnel? The supervisor.

The Information & Tech

Determining public and private information is a matter of research, practice, awareness, and caution. It doesn’t just necessitate an understanding of litigation review platforms, either — to meet the standard of competency, attorneys must, within reason, know the technology a law firm client uses in their own environment. Understanding a client’s email infrastructure, for example, is crucial in determining proper ID, collection, and preservation protocols. If this isn’t in place, the eDiscovery process doesn’t likely have a strong foundation to stand on.

The Vendors & Freelance

If a project requires outsourced document review, researching and vetting outside vendors and contract attorneys is extremely important to the adherence of these rules. If the vastness of a growing legal services landscape makes that seem daunting…well, it is. You aren’t wrong! It’s helpful to make sure Best Practices are being used in the selection of these vendors, and that only the best are commissioned to complement your internal team.

If you know you’re qualified, competent, current and confident in your preparedness to perform awesome eDiscovery, and you’re looking for document review projects from the best firms and corporations out there, join our awesome eDiscovery community today. It might be a game-changing next step in your career.

Are you a firm or solo practitioner looking to hire that bespoke talent at a moment’s notice? Learn more about LexInsight and sign up to start posting your projects today!

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Jennifer Roberts

Written by Jennifer Roberts

Jennifer Roberts is the Director of Marketing for LexInsight. When she's not spreading the word about LexInsight, you can find her running half marathons, dancing Argentine tango, or writing about wine.

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