The Ethics of Discovery

Ellen Lockwood, ACP, RP

Ellen Lockwood, ACP, RP

Discovery once only included hard copies of document. Now discovery includes electronic files. The Federal Rules of Civil Procedure defines “documents or materials” as “electronically stored information” or ESI.

Because electronic materials may be inadvertently changed, extra care must be taken with them. Most firms and companies use e-discovery software to harvest, search, and separate the materials to be produced. Most e-discovery software also removes duplicates. There have been some cases where a party that did not remove duplicates from e-discovery was fined.

Paralegals tracking production should note drastic differences between the volume of materials produced by different parties and whether outside vendors are charging a fair rate for their services. Such issues should be brought to the attention of the supervising attorney.

Paralegals may also be responsible for documenting the source and content of materials produced as authentication is an important part of the discovery process. E-discovery is even more likely than traditional discovery to create issues regarding reasonableness and relevance. Paralegals should refrain from offering their personal opinions on those topics to the client, and should pass along the attorneys’ instructions regarding the necessity of searching every reasonable source. Questions regarding limiting search categories or sources should be brought to the attorney for a decision. It is unethical for a paralegal or vendor to make those decisions.

Paralegals should have a good knowledge of the rules of evidence and procedure that are applicable to e-discovery. These rules include limitations on discovery, process and procedures for claims regarding undue burden and cost, admissibility, privileged materials, and the overall discovery process. This area of law also requires some familiarity with issues regarding the scope of e-discovery including the following:

• Need for production of ESI in multiple formats
• Sources of ESI that due to undue cost or burden, are not considered reasonable
• Procedures for making claims regarding privileged material produced inadvertently (claw-back provisions)

Since electronic evidence may be inadvertently changed or damaged, it is important to use the proper software and hardware to gather data. If a paralegal is not confident in his abilities to harvest the data appropriately, an IT professional or e-discovery vendor should be used. However, be sure the people engage are experienced in e-discovery.

When issuing a litigation hold, discuss with your attorney whether the hold should include a prohibition on manual or automatically scheduled defragging. Defragging may destroy evidence of hard drive wiping and could be considered spoliation of evidence.

Redaction done by technology still should be checked to ensure the appropriate info has been redacted and that the redacted info cannot be determined by counting spaces or the surrounding text. It may be necessary to redact a few words before or after the redacted term in order to maintain integrity of redaction. Hold hard copy docs up to the light to be sure redacted info is not visible.

Paralegals should also be mindful of the prohibitions against altering, concealing, or destroying evidence and not participate in any such activities, even at the direction of a client or attorney. Doing so may be considered a criminal, as well as ethical, offense.

Because this area is constantly changing due to court decisions and technology updates, paralegals should attend CLE on this topic at least annually and keep up with other sources of information on ediscovery.

Ellen Lockwood, ACP, RP, is the Chair of the Professional Ethics Committee of the Paralegal Division and a past President of the Division. She is a frequent speaker on paralegal ethics and intellectual property and the lead author of the Division’s Paralegal Ethics Handbook published by West Legalworks.