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E-Discovery 2015: Best Practices and Ethical Implications

Length: 2 hours 53 minutes

Technology has taken hold in the eDiscovery realm. Codes of professional responsibility and court rules have raised the bar on attorneys’ technological competence. What skills and knowledge do counsel need to meet judicial expectations and ethical obligations and reduce the risk of sanctions? Our experienced faculty will consider intersections of technology and ethics, court expectations and business realities in the world of electronic information and eDiscovery as well as demystify data sources, the use of technology in eDiscovery, and the role of expertise to reduce cost and risk, in the context of the eDiscovery lifecycle of preservation, collection, review, and production.  We’ll consider the perspectives of both the bench and the practitioner. Gain practical insight into procedures and tools that promote accuracy, reduce cost, and provide defensibility.
Program Chair: Julia L. Brickell, Executive Managing Director/General Counsel, H5

CLE credit: NY: 3.0 total: 2.5 ethics & 0.5 pp; NJ: 3.3 total: 2.5 prof. resp. & 1.0 general; CA & PA: 2.5 total: 2.0 prof. resp. & 0.5 general


What does a Lawyer Need to Know about the Ethical and Technical Underpinnings of eDiscovery Methodologies?

eDiscovery has now become a complex set of procedures, often calling for various technologies to replace what was previously a fully human effort. Understanding quality and thoroughness of a production becomes more challenging. How does counsel know that they have properly fulfilled their professional obligations? What knowledge do they require? What are the risks and benefits of using different forms of technology-assisted review and what ethical issues do these approaches present for counsel? This session addresses some of the challenges that counsel may face, and explores the professional rules that may be implicated, including New York Rules of Professional Practice 1.1, 1.4, 3.3, 3.4, 4.1, and 5.3.

7:15 – 7:30 Break

7:30 – 8:20

The Ethics of Advocacy in the E-Discovery Sphere: What Do Competence, Candor, and Fairness Require in Practice?

What counsel is expected and/or obligated to know, do, and disclose in discovery is a worthy question. In this discussion, the panel considers what FRCP 26 and the ethical obligations of competence, candor, and fairness under New York Rules of Professional Practice 1.1, 3.3, 3.4, 5.3 and 8.4 require of lawyers in eDiscovery. Does lack of knowledge allay lawyers’ ethical obligations? Should counsel really have to explain precision and recall to a judge? What does the recent interim opinion of the State Bar of California Standing Committee on Professionalism Responsibility and Conduct suggest are unacceptable mistakes of counsel in the sphere of electronic discovery?

The panel also considers the ethical boundaries among cooperation, proportionality, and zealous advocacy, protection of privilege and the call for transparency. What light do recent cases and the SDNY pilot program shed on these issues?

8:20- 8:45
On the Horizon: Pending Changes to FRCP 1, 26, and 37

To conclude the session, the panel considers how pending changes to the Federal Rules of Civil Procedure may impact dynamics in eDiscovery. Does the increased emphasis on proportionality affect required competencies? With whom do responsibilities lie? If the proposed changes to Federal Rule of Civil Procedure 37 are approved, how may the practice of eDiscovery be impacted?

Original Recording Date: 4/15/2015

Produced By:

New York City Bar Association

Course Materials

  • E-Discovery 2015: Best Practices & Ethical Implications
  • Affirmation of Self-Study