The Only Way Is Ethics When It Comes To eDiscovery
eDiscovery is governed by strong ethics and responsibilities on both sides of the Atlantic. It is mystifying that solicitors always rank low on the scale of ‘most trusted people’. Aside from medicine, no other profession is governed by such strict codes of conduct. Solicitors and barristers are expected to play their part in upholding the Rule of Law and can have their careers ended and professional reputations ruined if they act in a way that brings the public’s trust in the legal system into question.
eDiscovery, one of the most critical elements of litigation, has numerous duties and responsibilities attached to it. Legal professionals have a duty to their client, the other party, and the Court. In cases subject to the disclosure regime under Civil Procedure Rule (CPR) 31, Practice Direction (PD) 31A and PD 31B it is essential that, from the initial instruction onwards, Solicitors provide clients with timely and appropriate advice in relation to their disclosure obligations.
In the US, the ABA Model Rules of Professional Conduct, created by the American Bar Association sets out the baseline ethics and responsibilities for attorneys and states that all lawyers have a duty to provide competent representation to their clients (Rule1.1). Included in this is the responsibility to stay “abreast of the changes in the law and its practice, including the benefits and risks associated with relevant technology”.
In 2015 The California State Bar issued an ethics opinion addressing eDiscovery competence. The opinion advises that “attorneys handling e-discovery should be able to perform (either by themselves or in association with competent counsel or expert consultants) the following” tasks:
- Initially assess e-discovery needs and issues, if any;
- Implement/cause to implement appropriate ESI preservation procedures
- Analyse and understand a client’s ESI systems and storage;
- Advise the client on available options for collection and preservation of ESI;
- Identify the custodians of potentially relevant ESI;
- Engage in competent and meaningful meetings and confer with opposing counsel concerning an e-discovery plan;
- Perform data searches;
- Collect responsive ESI in a manner that preserves the integrity of that ESI; and
- Produce responsive non-privileged ESI in a recognized and appropriate manner
In the UK, Civil Procedure Rule (CPR) 31, Practice Direction (PD) 31A and PD 31B govern a Solicitor’s duties and responsibilities regarding disclosure, and the key pieces of advice which should be communicated to the client.
PD 31B.7 expressly requires that “as soon as litigation is contemplated”, the parties’ legal representatives must notify their clients of the need to preserve disclosable documents, including electronic information. Solicitors should make the following clear to their client:
- Do not destroy any documents or data which may be relevant to the contemplated litigation
- Do not create any new documents which may be disclosable until the scope of the litigation becomes clear
- Ensure third parties do not send you documents which may relate to the matter, or else have these sent to a legal representative
In CMCS Common Market Commercial Services AVV v Taylor  EWHC 324 (Ch) several documents were redacted by the client rather than the Solicitor. However, it was held that the Solicitor had breached their duty to the Court. The judge ruled that listing documents for disclosure and making them available for inspection were both parts of the disclosure process and the Court and the other party relied upon Solicitors to personally supervise both tasks.
The Court relies on the Solicitor to ensure justice is administered correctly when it comes to document disclosure. Therefore, a client’s word regarding disclosure should not be taken at face value – it is up to the legal professional to ask for clarification and investigate further if they believe there are other data or documents which need to be identified and analysed. Often items such as personal diaries, Board minutes, and personal electronic messages are overlooked by the client, but these can be hugely relevant to the case.
The ethical burden regarding disclosure is a heavy one. A Solicitor must ensure that every person on which the disclosure obligation may have an impact must be advised of that obligation and steps must be taken to ensure they fully understand it. For example, IT departments must be advised to suspend any data clean-ups etc until the scope of the disclosure obligation is clear. And in-house counsel must be supported to ensure information regarding disclosure obligations is dissimilated appropriately.
Without prejudice rule
Under ABA Model Rule 1.6, US attorneys have a duty to take precautions against accidentally disclosing privileged information and documents during the eDiscovery process. This has become more challenging with the rapid expansion of ESI.
UK lawyers also face this challenge. The test for determining whether the Court will restrain the use of a privileged document which has been inadvertently disclosed are set out in Al Fayed & Ors v Commissioner for Police for the Metropolis & Ors  EWCA Civ 780 (at paragraph 16):
“(iii) A solicitor considering documents made available by the other party to litigation owes no duty of care to that party and is in general entitled to assume that any privilege which might otherwise have been claimed for such documents has been waived….
(v)…, the court has jurisdiction to intervene to prevent the use of documents made available for inspection by mistake where justice requires, as for example in the case of inspection procured by fraud.
(vi) In the absence of fraud, all will depend upon the circumstances, but the court may grant an injunction if the documents have been made available for inspection as a result of an obvious mistake.
(vii) A mistake is likely to be held to be obvious and an injunction granted where the documents are received by a solicitor and:
(a) the solicitor appreciates that a mistake has been made before making some use of the documents; or
(b) it would be obvious to a reasonable solicitor in his position that a mistake has been made;
and, in either case, there are no other circumstances which would make it unjust or inequitable to grant relief.
(viii) Where a solicitor gives detailed consideration to the question whether the documents have been made available for inspection by mistake and honestly concludes that they have not, that fact will be a relevant (and in many cases an important) pointer to the conclusion that it would not be obvious to the reasonable solicitor that a mistake had been made, but is not conclusive; the decision remains a matter for the court.
(ix) In both the cases identified in (vii) (a) and (b) above there are many circumstances in which it may nevertheless be held to be inequitable or unjust to grant relief, but all will depend upon the particular circumstances.
(x) Since the court is exercising an equitable jurisdiction, there are no rigid rules.”
Lord Justice, Moore-Bick stated in Rawlinson & Hunter v Director of the SFO  EWCA Civ 1129 (at paragraph 15):
“Once it is accepted that the person who inspected a document did not realise that it had been disclosed by mistake, despite being a qualified lawyer, it is a strong thing for the judge to hold that the mistake was obvious”.
To prevent the inadvertent disclosure of privileged documents, a review of such documents should be undertaken manually. If accidental disclosure is made, the receiving Solicitor should be promptly notified.
If you have any questions or concerns about the ethics of eDiscovery, please contact our team on +44 (0)20 7940 4799 or email firstname.lastname@example.org.
 Cal. State Bar, Formal Op. 2015-193 (2015)