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September 2012

Home – ABA Provides Ethical Guidance on ESI; Pennsylvania, Florida Update Procedural Rules

ABA Provides Ethical Guidance on ESI; Pennsylvania, Florida Update Procedural Rules

In case you were thinking of playing fast and loose with digital client information, new rules require you to think again. The American Bar Association (ABA) recently amended the Model Rules of Professional Conduct to guide lawyers on use of technology and confidentiality.  Much of it comes down to one of the more often interpreted (or misinterpreted, depending on your point of view) words: "reasonable." 


"A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client," the Rules state.  Lawyers must safeguard information against "unauthorized access by third parties and against" inadvertent or unauthorized disclosure to other persons participating in representing the client or who are under the lawyer's supervision.  See Rule 1.6(c).  


And the Rules themselves are reasonable. "The unauthorized access to, or the inadvertent or unauthorized disclosure does not constitute a violation of [Rule 1.6(c)] if the lawyer has made reasonable efforts to prevent the access or disclosure." 


Factors of reasonableness to be considered include: 1) the sensitivity of the information; 2) the likelihood of disclosure if additional safeguards are not employed; 3) the cost of employing additional safeguards; 4) the difficulty of implementing the safeguards; and 5) the extent to which the safeguards adversely affect the lawyer's ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use)." 


The ABA goes on to say that a client can require his lawyer to implement "special security measures" that are not required by the rule. A client also may give his lawyer "informed consent to forego security measures" that are required by the rule. 


The ABA was careful to limit the boundaries of its ethics rules. "Whether a lawyer may be required to take additional steps to safeguard a client's information in order to comply with other law, such as state and federal laws that govern data privacy or that impose notification requirements upon the loss of, or unauthorized access to, electronic information, is beyond the scope of these Rules."  


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The ABA added the Internet to the list of powerful forms of media-like broadcast television-for communicating with the public. Barring lawyers from using television and the Internet, the ABA said, therefore would impede the flow of information about legal services to many sectors of the public, but real-time electronic exchange initiated by a lawyer is prohibited. Lawyers may not pay others to recommend them, the Rules say. "A communication contains a recommendation if it endorses or vouches for a lawyer's credentials, abilities, competence, character, or other professional qualities."   


Lawyers may, however, pay others for client leads, such as Internet-based leads, as long at the lead generator does not recommend the lawyer, does not suggest any payment to the lead generator and the lead generator's communications are in line with other ethical rules. "[A] lawyer must not pay a lead generator that states, implies, or creates a payment from the lawyer, or has analyzed a person's legal problems when determining which lawyer should receive the referral."   


The states of Pennsylvania and Florida also did their part to guide attorneys on the handling of Electronically Stored Information (ESI). Neither entirely adopted the Federal Rules, but both made room for cooperation among the parties.




Pennsylvania's ESI rules officially became an active part of the state's Rules of Civil Procedure on August 1.    


LexisNexis author Maxwell S. Kennerly, quoted on the LexisNexis Litigation Resource Community website, wrote, "The new Rules leave wide room for judicial discretion (and attorney creativity), and do not include either a requirement that parties meet and confer, nor any 'safe harbors' for inadvertent spoliation. The amendments partly track the corresponding Federal Rules of Civil Procedure but, importantly, the explanatory comment specifically rejects the incorporation of federal jurisprudence into the new Pennsylvania Rules. The Rules specifically encourage (but do not require) close cooperation by opposing counsel on electronic discovery, including specific recommendations on limiting time and scope and on reaching agreements such as on cost sharing and non-waiver.  Finally, and perhaps most importantly, the new Rules include a detailed explanatory comment providing for a 'proportionality standard' in evaluating requests for electronically stored information, giving courts wide latitude to resolve electronic discovery issues in the manner the court believes best suits the specifics of the case." 


The Pennsylvania proportionality standard requires the court to consider: 1) the nature and scope of the litigation, including the importance and complexity of the issues and the amounts at stake; 2) the relevance of ESI and its importance to the court's adjudication in the given case; 3) the cost, burden, and delay that may be imposed on the parties to deal with electronically stored information; 4) the ease of producing ESI and whether substantially similar information is available with less burden; and 5) any other factors relevant under the circumstances. 


"Parties and courts may consider tools such as electronic searching, sampling, cost sharing, and non-waiver agreements to fairly allocate discovery burdens and costs.  When utilizing non-waiver agreements, parties may wish to incorporate those agreements into court orders to maximize protection vis-à-vis third parties." 




On July 5, the Florida Supreme Court amended Rule 1.200 governing pretrial procedure to allow a trial court to consider issues relating to e-discovery during a pretrial conference. These include: the possibility of obtaining admissions of fact; the voluntary exchange of documents and ESI, and stipulations regarding the authenticity of documents and ESI; the need for advance rulings on the admissibility; and the possibility of an agreement between the parties regarding the extent to which such information should be preserved and the form in which it should be produced.   


Rule 1.280-on general provisions governing discovery-now expressly authorizes discovery of ESI. It states that if a party opposes a discovery request, that party must show that the information sought or the format requested is not reasonably accessible because of undue burden or cost. The court can, of course, still order discovery if the requesting party shows good cause. "However," the Supreme Court held, "the court may specify certain conditions of discovery, including ordering that some or all of the expenses incurred while complying with the discovery request be paid by the party seeking the discovery.   


Florida's Rule 1.380, which provides for discovery sanctions, was amended to say that, unless exceptional circumstances exist, a court may not sanction a party for failing to provide ESI that was lost as a result of the "routine, good-faith operation of an electronic information system."  




All of these changes reflect a desire to bring some control to the discovery process, encourage cooperation, and create a spirit of "let's be reasonable" when taking care of often temporal and vulnerable digital data.


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