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What do I need to know about e-discovery and malpractice?

ABA Model Rule 1.1 requires attorneys to provide competent representation and extends to include a duty to “stay abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” What does this mean in a world where e-discovery is constantly expanding? The American Bar Association (ABA) recently provided some guidance, and the gist of it is this:

First determine if it is appropriate to complete in-house or with specialist

E-discovery is an extremely important step in building a case. Email and computer networks can hold a wide array of electronically stored information (ESI) that may serve as crucial evidence to the case. Knowing where to look and how to gather this evidence is not an easy task. In some cases, it works to do this in house. If done in-house, it is important to have a process and procedures clearly laid out and followed ahead of time. Remember, it is not appropriate to have custodians with a stake in the case gather their own data. Do not use employees of a target company to help gather this information. Instead, in these cases it may be best to hire specialists.

Next, gather and preserve

This includes e-mails and electronic files. Once found, it is important to put a litigation hold on ESI documents to help better ensure they are preserved. Proper preservation technique is important to reduce the risk of accusation of evidence tampering.

It is also important to note that you cannot obstruct the other party’s access. Destroying or otherwise concealing the evidence is a violation and could lead to allegations of malpractice.

Keep ethics in mind

It is important to take steps to reduce the risk of inadvertently producing privileged documents. This is difficult and growing even more so with the continued expansion of ESI. Protective orders and claw back agreements can help in the event of a mistake.