Technology has irrevocably changed and continues to alter the practice of law in fundamental ways.”1 As technology evolves, lawyers are confronted with new challenges pertaining to the preservation of data, the proper maintenance of privileged and confidential material, and a daunting learning curve that accompanies the growth of electronic discovery. These ongoing developments present ethical challenges, which require a reexamination of the duty of competence and a careful view of the litigator’s responsibility with respect to confidential information, including metadata, that is produced electronically. This article examines the parameters of the duty of competence in the e-discovery context and briefly outlines the rules that delineate the proper and ethical management of confidential information.
The 2012 Amendments to the ABA Model Rules
The American Bar Association’s Model Rules of Professional Conduct (the Model Rules) are generally the starting point of any discussion involving legal ethics in the electronic discovery context. Almost all states, including Wisconsin, follow the Model Rules as the basis for their state ethics rules (although Wisconsin does not follow the Model Rules verbatim, yielding significant distinctions). Given their importance, the Model Rules are discussed briefly, below, with special attention directed to Wisconsin distinctions.
Timothy D. Edwards, Wayne State 1989, is the founder of Edwards Law Group LLP, Madison, and an adjunct lecturer at the U.W. Law School. His practice focuses on electronic discovery, business, and employment litigation.
In August 2012, the ABA Commission on Ethics 20/20 (the 20/20 Commission) recommended, and the ABA House of Delegates adopted, updates to the ABA Model Rules “to reflect the realities of the digital age.”2 These amendments accompany the inevitable reality that lawyers cannot rely entirely on others to understand technology that is used in the e-discovery process. Instead, lawyers practicing in the digital age have an ethical obligation to understand those aspects of technology that are relevant to the matters they handle and that are designed to protect confidential information.3
Duty of Competence in the Digital Age. The most significant change to the Model Rules regarding e-discovery is found in the comments to rule 1.1, pertaining to competence. While the rule itself remains unchanged, the new version of comment 8 states as follows:
“To maintain the requisite knowledge and skill a lawyer should keep abreast of changes to 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 requirements to which a lawyer is subject.”4
Comment 8 was made explicit because of the rapid pace of technological change and the benefits and risks of certain technology. Recognizing that lawyers have a “general ethical duty to remain competent in the digital age,” the 20/20 Commission explicitly acknowledged that electronic discovery fits within the broader category of “relevant technology” contemplated by rule 1.8:5
“Technology is also having a related impact on how lawyers conduct investigations, engage in legal research, advise their clients and conduct discovery. These tasks now require lawyers to have a firm grasp on how electronic information is created, stored, and retrieved. For example, lawyers need to know how to make and respond to electronic discovery requests and to advise their clients regarding electronic discovery obligations. … These developments highlight the importance of keeping abreast of change in relevant technology in order to ensure that clients receive competent and efficient legal services.”6
Counsel must, at minimum, understand the client’s
information management systems, the tools used to
preserve electronic data in advance of litigation, and
the software and hardware programs that are used to
review and process electronically stored information
(ESI), including applicable back-up systems.
Although the comments to Rule 1.1 do not define the scope of “relevant technology” that falls under the purview of competence, counsel must, at minimum, understand the client’s information management systems, the tools used to preserve electronic data in advance of litigation, and the software and hardware programs that are used to review and process electronically stored information (ESI), including applicable back-up systems. Counsel must also remain current on technologies that create and process data as well as related tools that are used to process and produce such data.7
While the duty of competence requires lawyers to have a “firm grasp” on these technologies, the 20/20 Commission also acknowledged that some matters “may require the use of technology that is beyond the scope of the lawyer’s expertise,” thus requiring the assistance of nonlawyers with more proficiency with certain technologies.8 Accordingly, counsel can satisfy the duty of competence by taking diligent and reasonable steps to understand the technology while using outside consultants when the technology requires special expertise. The lawyer is not required to possess special training in these technologies to be considered competent.9
The Duty of Competence in Wisconsin. Wisconsin did not adopt the amendments to Model Rule 1.1 as they pertain to technology. Unlike Model Rule 1.1, which explicitly identifies technological competence as a core ethical obligation, SCR 20:1.1 requires counsel to apply the “legal skill, thoroughness, and preparation reasonably necessary” for the representation, as gauged by the “relative complexity and specialized nature of the matter, the lawyer’s general experience, the lawyer’s training and experience in the field in question, [and] the preparation and study the lawyer is able to give the matter.…”10
The Committee Notes explicitly acknowledge that “[e]xpertise in a particular field may be required in some circumstances.”11 Counsel can also attain competence through necessary study or “the association of a lawyer of established competence in the field in question.”12
Even though Wisconsin’s Rules of Professional Conduct, as codified in the Supreme Court Rules (SCR), do not follow Model Rule 1.1 verbatim, it can be argued that SCR 20:1.1 imposes a substantially similar standard that requires counsel to acquire a strong understanding of technology surrounding the preservation, processing, and production of ESI.
By way of illustration, the California State Bar Committee on Professional Responsibility and Conduct recently issued an ethics opinion that squarely addressed the duty of competence in the e-discovery context by applying a definition of competence that virtually mirrors Wisconsin’s parallel rule.13 The California committee acknowledged that a lawyer might violate the duty of competence by failing to understand and perform a number of specific e-discovery skills pertaining to electronic discovery.
In so doing, the California committee acknowledged that the duty of competence can be applied to changes in technology without further modification: “While e-discovery may be relatively new to the legal profession, an attorney’s core duty of competence remains constant.”14 In applying this “constant” standard to this “relatively new” area of the law, the California committee identified nine areas that lawyers handling e-discovery should be able to perform:
Initial assessment of e-discovery needs and issues;
Implementation of appropriate ESI preservation procedures;
Analysis of clients’ ESI systems and storage;
Advising clients of available options for preservation and collection of ESI;
Identifying custodians of potentially relevant ESI;
Engaging in competent meet and confer with opposing counsel;
Performing data searches;
Collecting ESI in a responsive manner that preserves its integrity; and
Producing responsive nonprivileged ESI in an appropriate fashion.15
Although the California committee’s opinion provides further detail regarding the duty of competence in the e-discovery context, it is not exhaustive. For example, the opinion did not create an ethical obligation for counsel to impose a litigation hold in anticipation of litigation. Even so, it is well settled that the prompt issuance of a litigation hold may prevent spoliation of evidence, and the duty to implement such a hold falls on counsel who represents a party with potentially relevant electronic data.16 Spoliation can result in serious sanctions, including monetary and potentially dispositive nonmonetary sanctions that can adversely affect a client.17 The failure to preserve relevant ESI equates to incompetence when counsel fails to take reasonable steps to implement a litigation hold in the face of impending litigation
Competence. The precise definition of competence in the e-discovery context in Wisconsin is difficult to pinpoint, but one thing is clear: “attorneys who handle litigation cannot ignore the requirements and obligations of electronic discovery.”18 In recognizing these obligations, competent counsel must have a fundamental grasp of her client’s computer systems, software, storage, and back-up facilities.
In all cases, counsel should carefully consider her preservation obligations and make good-faith efforts to impose a litigation hold that satisfies them. Counsel must engage in the meet-and-confer process in good faith and, when possible, coordinate a reasonable and proportional discovery plan with opposing counsel.
Finally, counsel must be aware of appropriate protocols for searching, processing, and producing data without disclosing privileged or confidential information. When in doubt, counsel should enlist the assistance of outside experts to guide through various steps of the preservation and production process. By taking these steps and working with opposing counsel to solve problems, counsel can approach e-discovery with suitable competence and skill.
The Duty of Confidentiality
The most significant substantive amendment to the Model Rules addresses the duty of confidentiality. Recognizing the differences between the format of traditional lawyer-client communications, which occur by regular mail or facsimile, and the format of many contemporary communications, the drafters acknowledged that in contemporary communications, lawyers and clients routinely exchange computer information from many different sources that are sometimes accessible from many locations. This has raised “new concerns” about “data security and lawyers’ ethical obligations to protect client confidences.”19
To accommodate these concerns, Model Rule 1.6 has now been amended to “make clear that a lawyer has an ethical duty to take reasonable measures to protect a client’s confidential information from inadvertent disclosure, unauthorized disclosure and unauthorized access, regardless of the medium used.”20 To underscore the importance of this obligation, Model Rule 1.6 requires a lawyer to make “reasonable efforts to prevent the inadvertent disclosure of, or unauthorized access to, information related to the representation of a client.”21 Wisconsin uses the same standard in its confidentiality provision.22
The drafters of revised Model Rule 1.6 acknowledged that “lawyers cannot guarantee electronic security any more than lawyers can guarantee the physical security of documents stored in a file cabinet or offsite storage facility.”23 Comment 18 thus sets forth a list of nonexclusive factors to be considered in determining whether a lawyer’s efforts to prevent disclosure are reasonable, including the sensitivity of the information, the likelihood of disclosure if additional safeguards are not used, the cost of using additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients.24
This analysis recognizes that lawyers can apply security measures that are consistent with their needs and the circumstances of their law firms, provided the measures are reasonable. This is consistent with existing case law before the adoption of Model Rule 1.6 and Wisconsin’s counterpart.25
Cooperation, Civility, and E-discovery
In cases involving complex issues pertaining to the preservation, processing, and production of ESI, cooperation is both necessary and, arguably, ethically required.26 While courts routinely expect lawyers to cooperate in discovery-related matters, that obligation is heightened when a case involves voluminous data or sophisticated technology to aid in the processing of that data. In this context, vigorous advocacy is enhanced, not undermined, by thoughtful cooperation and problem solving between counsel.
When lawyers confuse the duty of loyalty with the duty to advocate by taking unreasonable, aggressive steps in e-discovery litigation, they are hurting their clients and enhance “the legal culture of adversarial discovery that is driving up costs and delaying justice.”27 Counsel should be mindful of the duty to cooperate because it is anticipated that courts will enforce this obligation more aggressively in e-discovery litigation into the future.
Special Rules for Metadata
Metadata is “embedded information contained in electronic documents”28 or “data about data.” Metadata includes information about the author of the data, the time and date of its creation, modifications, changes, standards used, and embedded tracked changes.29 By searching for metadata, it is possible to identify changes that have been made to a document, including information that has been added or deleted. Examples of metadata include tracked changes on Word documents, internet browsing histories, and properties’ features on document management systems. As with all electronic discovery, metadata often has significant evidentiary data. It is also easy to destroy or manipulate, through negligence or design.
Lawyers routinely send and receive documents that include metadata. Some of that information is confidential. Accordingly, metadata provides an opportunity for lawyers to disclose confidential information to third parties without client consent. Such a disclosure, however unintentional, can be very damaging. Similarly, it is possible to “mine” data provided by opposing counsel in search of metadata that is often confidential. This practice and the handling of metadata raise unique ethical questions.
To address these questions, the State Bar of Wisconsin Professional Ethics Committee issued a formal opinion regarding the ethical obligations of the sender and the recipient of potentially confidential metadata. According to the committee, a lawyer who transmits to third parties documents containing information related to the representation of clients must act competently to prevent the disclosure of significant information contained in such documents’ metadata.30 This obligation is grounded in SCR 1.6, which states that a lawyer “shall not reveal information related to the representation of the client unless the client gives informed consent,”31 and the obligation of competence, which requires counsel to take reasonable efforts to preserve and safeguard potentially confidential information.32
Read together, these obligations require counsel to take reasonable precautions to avoid the disclosure of confidential metadata when transmitting documents. This requires counsel to understand when confidential metadata is contained in a document, what that metadata is, and how, if necessary, to prevent its transmission.
The recipient of confidential metadata does not necessarily benefit from opposing counsel’s mistake. While the committee did not conclude that it is unethical for a recipient to mine metadata, the recipient must stop such a review if he or she identifies confidential information and then must notify opposing counsel and return the confidential document pursuant to SCR 20:4.4(b), which requires counsel to notify opposing counsel upon receipt of confidential information of material significance that was sent inadvertently.33 This obligation supersedes the recipient’s duty of confidentiality. Accordingly, “a lawyer discovering metadata of material significance must notify the sender even if the lawyer’s client instructs the lawyer not to provide such notification.”34
Finally, the committee concluded that, absent undefined “specific circumstances,” the receiving lawyer has no duty to actively search for metadata “because there is no reasonable basis to conclude that any specific document would contain significant metadata.”35
The committee’s opinion on metadata effectively balances several concerns. According to the opinion, “[l]awyers who send electronic materials are ethically required to take reasonable care to avoid the disclosure of confidential information contained within metadata.”36 In addition, it is “generally permissible” for lawyers to search for and review metadata unless a lawyer knows a document was sent inadvertently and it is necessary to notify opposing counsel. Finally, the ability to mine for and locate metadata does not confer an ethical obligation to do so absent special circumstances. Viewed collectively or in isolation, these findings reflect the importance of competence and confidentiality as core ethical values in the exchange of ESI.
The explosion of technology has changed litigation in many ways. To keep up with these developments, the ethical rules have been modified or applied in their original form to create new and more specific ethical guidelines for lawyers. Today, litigators must understand the mechanics of electronic discovery, from preservation to production, and have a strong command of their client’s information systems. Lawyers must be vigilant about the disclosure of confidential information, inadvertent or otherwise, and the consequences of such disclosures with respect to metadata. Finally, lawyers must abandon the adversarial model of discovery in favor of open communication and cooperation. With these tools in hand, counsel is in a much stronger position to advocate for her client in a competent, professional manner.
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1 ABA Commission on Ethics, Resolution 105A rpt. at 3 (Aug. 2012) [hereinafter 20/20 Report: Introduction and Overview].
3 Kenney, The Evolving Ethics of E-Discovery: Raising the Bar for Counsel 2 (Sidley Austin LLP 2013).
4 ABA Model Rules of Prof’l Conduct R. 1.1, cmt. 8.
5 20/20 Report: Introduction and Overview, supra note 1, at 8.
6 Id. at 4.
7 Kenney, supra note 3, at 4.
8 20/20 Report: Introduction and Overview, supra note 1, at 5.
9 20/20 Report: Introduction and Overview, supra note 1, at 4.
10 SCR 20:1.1 (Committee Comment) (2014).
13 State Bar of California, Standing Committee on Professional Responsibility and Conduct, Formal Op. No. 2015-193.
14 Id. at 2.
16 See Zubulake v. Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003) (holding that counsel is responsible for implementation of litigation hold).
18 Id. at 7.
19 20/20 Report: Introduction and Overview, supra note 1, at 7.
20 Id. at 8.
21 ABA Model Rules of Prof’l Conduct R. 1.6.
22 SCR 20:1.6.
23 20/20 Report: Introduction and Overview, supra note 1, at 8.
24 ABA Model Rules of Prof’l Conduct R. 1.6 cmt. 18.
25 See Coburn GroupLLC v. Whitecap Advisors LLC, 640 F. Supp. 2d 1032, 1038-40 (N.D. Ill. 2009) (holding that efforts to safeguard were reasonable in light of counsel’s guidance to paralegals and independent review of proportionately small number of inadvertently produced documents); Inhalation Plastics Inc. v. Medex Cardio-Pulmonary Inc., 2012 WL 3731483 at *3-6 (S.D. Ohio 2012) (holding efforts were not reasonable given large number of disclosures and counsel’s failure to prepare privilege log).
26 See The Sedona Conference, The Sedona Conference Cooperation Proclamation, 10 Sedona Conf. J. 331 (2009).
28 Wis. Formal Ethics Op. EF-12-01, The Transmission and Receipt of Electronic Documents Containing Metadata 1 (June 15, 2012) [hereinafter Opinion EF-12-01].
29 Margaret Rouser, Metadata: What It Is, Tech Target (July 2014).
30 Opinion EF-12-01, supra note 28, at 1.
31 SCR 20:1.6(a).
32 SCR 20:1.1.
33 SCR 20:4.4(a).
34 Opinion EF-12-01, supra note 28, at 5.
35 Id. at 6.