1. Professionalism & Civility in
Electronic Discovery
Rich Mrazik and Mike Young
June 17, 2014

2. 2
 Growing recognition that lack of
competence in e-discovery can result in
ethical violations.
– Proposed Formal Opinion Interim No. 11-0004, The State Bar of California
– See Sharon Nelson et al., The Legal Implications of Social Networking, 22 Regent U.L. Rev.
1, 1-2 (2009/2010).
 The inability to handle e-discovery properly is
“almost always a self-inflicted injury which
can be avoided by thoughtful, advance
preparation.”
– Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 542 (D. Md. 2007).
Why are we talking about this?

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 The administration of justice is a truth
seeking process designed to resolve
problems in a rational, peaceful, and
efficient manner.
– Preamble, Utah Standards of Professionalism and Civility
 Consider Standard Nos. 2, 6, 10, 17, 19,
and 20.
Overview:
Standards of Professionalism

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Overview:
e-discovery and ethical duties
ELECTRONIC
DISCOVERY
Duty of
Competence
Duty of
Confidentiality
Duty of
Fairness
Standard No. 6
Standard No. 10
Standard No. 19
Standard No. 2
Standard No. 17
Standard No. 20

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Competent
Representation
Knowledge Skill Thoroughness Preparation
Rule 1.1: Competence

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 Assess e-discovery needs and issues;
 Analyze and understand a client’s ESI systems
and storage;
 Identify custodians of relevant ESI;
 Implement appropriate ESI preservation
procedures;
 Perform appropriate searches; and
 Ensure preservation and search procedures are
executed properly.
Competence Applied:
Initial Stage

7. 7
 Lawyers shall adhere to their express promises
and agreements, oral or written, and to all
commitments reasonably implied by the
circumstances or by local custom.
 Lawyers shall make good faith efforts to resolve
by stipulation undisputed relevant matters,
particularly when it is obvious such matters can
be proven, unless there is a sound advocacy
basis for not doing so.
Competence: Standard Nos. 6 and 10

8. 8
In responding to document requests and
interrogatories, lawyers shall not:
(1) interpret them in an artificially restrictive
manner so as to avoid disclosure of relevant
and non-protected documents or information; or
(2) produce documents in a manner designed
to obscure their source, create confusion, or
hide the existence of particular documents.
Competence: Standard No. 19

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Four major considerations:
(1) Collecting ESI in a manner that
preserves its integrity;
(2) Producing ESI in a recognized and
appropriate manner;
(3) COST; and
(4) Engaging in competent negotiations
regarding an e-discovery plan.
Competence Applied:
Negotiating an e-Discovery Plan

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 A fundamental principle in the client-lawyer
relationship is that, in the absence of the client’s
informed consent, the lawyer must not reveal
information relating to the representation.
 This contributes to the trust that is the hallmark
of the client-lawyer relationship.
– Utah Rule 1.6 cmt. 2
Rule 1.6: Confidentiality

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Attorney-Client
Privilege
Rule of
Confidentiality
Work Product
Doctrine
Confidentiality:
Interplay of Protections

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 A lawyer must act competently to safeguard
information relating to the representation of a
client against inadvertent or unauthorized
disclosure.
– Utah Rule 1.6 cmt. 16
 A lack of reasonable care to protect against the
disclosure of privileged information when
producing ESI can be deemed a waiver of the
attorney-client privilege.
– See Kilopass Technology Inc. v. Sidense Corp., 2012 WL 1534065 at *2-3 (N.D. Cal. 2012);
Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 259-260, 262 (D. Md. 2008)
Confidentiality Applied

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 Clawback provision might not be applied where
an attorney:
– Fails to meaningfully engage in early e-discovery
meet & confer;
– Fails to carefully select ESI search terms; or
– Fails to carefully monitor ESI collection and
production.
 Clawback provisions also provide cold comfort
for disclosed proprietary information and/or trade
secrets.
Confidentiality Applied:
Clawback Provisions ≠ Safety Nets for Luddites

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A lawyer shall not:
(a) unlawfully obstruct another party’s access to
evidence or unlawfully alter, destroy or conceal a
document or other material having potential
evidentiary value; or
(d) in pretrial procedure, make a frivolous
discovery request or fail to make reasonably
diligent effort to comply with a legally proper
discovery request by an opposing party.
Rule 3.4: Fairness

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 Lawyers shall not use or oppose discovery for
the purpose of harassment or to burden an
opponent with increased litigation expense.
 Lawyers shall not object to discovery or
inappropriately assert a privilege for the purpose
of withholding or delaying the disclosure of
relevant and non-protected information.
Fairness:
Standard No. 17

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Fairness
• Disclosure Required
Under Rules of Civil
Procedure
• Responsive to
Discovery Request
• Within “Constructive”
Control of Party
Confidentiality
• Attorney-Client
Privilege
• Work Product
• Trade Secret/
Proprietary
• Sensitive
Disclosure
Non-Disclosure
Fairness vs. Confidentiality

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 The procedure of the adversary system
contemplates that the evidence in a case is to be
marshaled competitively by the contending
parties.
 Fair competition in the adversary system is
secured by prohibitions against destruction or
concealment of evidence, improperly influencing
witnesses, obstructive tactics in discovery
procedure and the like.
– Rule 3.4 cmt. 1.
Fairness Through
Adversarial Advocacy

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 Lawyers shall advise their clients that civility,
courtesy, and fair dealing are expected.
 They are tools for effective advocacy and not
signs of weakness.
Fairness:
Standards No. 2

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 Mike Young
– myoung@parsonsbehle.com
– 801.536.6963
 Rich Mrazik
– rmrazik@parsonsbehle.com
– 801.536.6931
THANK YOU