Attorneys have an ethical duty to preserve and disclose all information that may be relevant to a lawsuit. For decades, this responsibility primarily impacted paperwork, letters, and other physical forms of communication; however, the legal community has recently begun to acknowledge ethical duties for eDiscovery. In this article, we’re going to review ethical eDiscovery practices and discuss how they contribute to proper data preservation, collection, review, production, and security.
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Local/Intranet Data Preservation
Ethical eDiscovery often begins before litigation ensues. Advising your clients to use proper data preservation practices can ensure key documents are backed up and securely saved. This helps prevent future roadblocks like data loss and will allow you to act quickly when litigation is reasonably anticipated, threatened, or pending.
Data preservation is a proactive process. Attorneys should periodically consult with data custodians to determine where essential information is located and what processes are being utilized to ensure preservation. This practice will make the review process more efficient and streamlined.
Social Media Preservation
Social media has complicated the issue of ethical eDiscovery because it often requires specialized preservation and collection practices. In your daily life, you might find yourself printing a copy or taking a screenshot of social media posts you’d like to reference. While basic screenshots are effective for casual communication and informal records, they leave out a great deal of important information that would be necessary for admission into evidence. This is because screenshots don’t include the post metadata, videos, or embedded information.
Under Rule 3.4, failing to preserve data with evidentiary value can be considered a violation of your duties. For this reason, attorneys will need to properly authenticate all key data and should employ more advanced collection techniques like dynamic capture. In some cases, you may need to issue subpoenas to download the information directly from the social media provider.
Data Review & Security
According to ABA rules, lawyers are required to provide competent representation and to ensure client information is kept confidential. These requirements can impact the data review process when you’re choosing an eDiscovery review service. You have an ethical duty to perform due diligence on any service provider you contract with during the discovery process. Before storing any privileged information with a new provider, consider whether the company has a history of data breaches and inquire about its cybersecurity measures.
Developing a working knowledge of digital privacy is crucial for attorneys, particularly during the eDiscovery process. By carefully researching third-party legal support services, like First Legal, you can rest easy knowing that you’ve fulfilled your ethical obligations and preserved confidential client data.
Thanks for reading! We hope these tips have given you some insight into your ethical duties during eDiscovery. If you enjoyed this article, let us know on social media!
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