For Newbies Part II, Here Are Some Rules You Need to Know, Part I: eDiscovery Best Practices

Confused?  I’ll explain below.  Last month, in response to several people reaching out to me via LinkedIn, I published a “for newbies” post to identify available resources for newbies to better understand the “ins and outs” of eDiscovery.  A lot of people reacted positively to it, which was very gratifying.  I promised a part two on the rules (“soon” I said: not as soon as intended, but I tried!), so here are some rules you need to know!

The goal here is to identify certain rules that come up most frequently in eDiscovery-related circumstances (at least in my experience).  Today, I’ll discuss notable rules from sources other than the Federal Rules of Civil Procedure (FRCP).  Next week, I’ll discuss notable FRCP rules.  Hence, part I of part II.  Make sense?

I should also note that I’m working on an Educational Resources section of this site, where I will include resources from the first newbies blog post (and add several suggested and requested by readers), as well as these subsequent Rules resources.  Additional suggestions welcome.

Competence

So, I’ll start my list of Rules with possibly the most important topic that lawyers need to know: competence.  Rule 1.1: Competence from the ABA Model Rules of Professional Conduct says:

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

While that’s certainly important, it’s Comment 8 to Rule 1.1 that gets the most attention from legal tech and eDiscovery professionals.  It says (emphasis added):

[8]  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.

It’s that technology competence clause which has not only been emphasized by the ABA, similar language has been picked up by 39 states now (California was the latest one, more on CA below).  Bob Ambrogi’s terrific LawSites blog, has tracked all of the states’ adoption of the ethical duty of technology competence, so you can check to see if your state is there.

There aren’t any specific rules on eDiscovery competence, but there is one state opinion, which is from California (oddly, they had a state opinion on eDiscovery competence years before they adopted a technology competence rule, go figure).  Formal Opinion No. 2015-193 states (among other things):

An attorney lacking the required competence for e-discovery issues has three options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation. Lack of competence in e-discovery issues also may lead to an ethical violation of an attorney’s duty of confidentiality.

The recent DR Distributors case (covered here and here) veritably screams a lack of eDiscovery competence by counsel.  But, alas, that was in Illinois, not CA.  Here’s hoping that other states establish an expectation of eDiscovery competence soon (and hold lawyers to that).

Attorney-Client Privilege and Work Product; Limitations on Waiver

While competence is most important, in terms of rules you need to know, a close second is protecting privileged information for your clients (which certainly relates to competence).  Rule 502 of the Federal Rules of Evidence addresses disclosure of a communication or information covered by the attorney-client privilege or work-product protection.  There are two notable sub-sections which come up most in inadvertent disclosure circumstances in discovery:

(b) Inadvertent Disclosure. When made in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if:

  1. the disclosure is inadvertent;
  2. the holder of the privilege or protection took reasonable steps to prevent disclosure; and
  3. the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26 (b)(5)(B).

Rule 502(b) comes up most often when a party inadvertently discloses privileged materials.  Courts use the three points of Rule 502(b) to determine whether to allow a party to “clawback” inadvertently disclosed privileged materials. If all three conditions are met, then courts generally allow “clawback”; if not, they often don’t.  That is, unless they took advantage of Rule 502(d), which says:

(d) Controlling Effect of a Court Order. A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court — in which event the disclosure is also not a waiver in any other federal or state proceeding.

This means that if you file a Rule 502(d) order, it’s a non-waiver of privilege in that case and it’s a non-waiver of privilege in any subsequent state or federal case, even with different parties (even if you haven’t done a careful privilege screening).  That also relates to Principle 2 of The Sedona Principles on Protection of Privileged ESI, which says:

Parties, counsel, and courts should make use of Federal Rule of Evidence 502(d) and its state analogues.

So, there’s no reason NOT to file a Rule 502(d) order – it’s literally your “get out of jail free” card in the case of an inadvertent disclosure!  Yet, we’ve seen numerous cases where parties haven’t done so and that has often resulted in waiver of privilege in those cases.  Don’t be like them.  Those Sedona Principles also include two sample 502(d) orders, including one from Hon. Andrew J. Peck (ret.), who I also have the privilege of participating with in monthly EDRM case law webinars (including the one this past Monday, which you can check out here). See, Judge Peck, I mentioned it! 😉

So, that concludes rules you need to know, part I.  As Tom O’Connor would say: “Read the rules, Shankapotomous!” What do you think?  If you’re a newbie, did that help give you some useful resources to help you better understand eDiscovery?  I hope so!  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

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