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Professionalism is the Name of the Game

I was struck today by an article in the New Jersey Law Journal entitled “Lawyer’s ‘Inadvertent’ E-Discovery Failures Led to Wells Fargo Data Breach.” The article tells the tale of an attorney who inadvertently provided Wells Fargo customer information, including personally identifiable information (“PII”), to her adversary in discovery. Apparently, the parties did not have a confidentiality agreement and the documents were not redacted, which violates privacy protection laws (both state and Federal).

The attorney who produced the documents asserts in an affidavit to the court that her adversary “leaked” the incident regarding the production of PII to the New York Times.  The affidavit explains that the bank agreed to produce electronic documents (ESI) from 4 custodians. The documents were then reviewed, but the reviewing attorney did not realize that the “view” she was using did not show all of the documents, just the first set.  Also, the documents were possibly miscoded and not properly redacted. The attorney also claims that she did not understand the role of her vendor and what its responsibilities were.

I was struck by this article for 2 very important reasons.  First, that this type of inadvertent production happened. Just because attorneys are good litigators does not mean they know or understand technology, and more importantly in this case, eDiscovery. We have a duty as professionals to really know and understand technology, particularly when we are required to use it on a daily basis. Electronic Discovery is a particular skill.  It requires an understanding of the litigation, but also an understanding of the technology used by the client, the platform being used for the review, the workflow necessary to perform the review and produce documents, and cybersecurity and privacy concerns that overlay the entire process.  A skill set in eDiscovery has been likened to patent law in the level of understanding required.  The good old days of paper document reviews and hand-done redactions are over. As such, so are the days of everyone being on a level playing field when it comes to discovery.  In this digital age, where we create terabytes of data each year, attorneys with this particular skill will have the upper hand in litigation.

The second point that struck me about this particular article was the fact that the adversary allegedly leaked information regarding this breach to the New York Times. The Federal Rules of Civil Procedure require that adversaries attempt to get along and cooperate with one another to make eDiscovery less painful. However, every day it seems attorneys are less and less “civil” to one another. [And yes, I intended that play on words].  The rise of the inherent inequality when it comes to eDiscovery now makes this incivility more and more prevalent in litigation.

So as to my first point. eDiscovery (or really discovery since nearly all of discovery is electronic in this day and age) is not as simple as one would like to think.  Unless you have dealt with a large eDiscovery case, you really cannot appreciate the nuances and pitfalls that can result when you don’t do it correctly.  Relying on vendors is not the way.  Vendors are great. I use them, I love them, but I do not rely on them to do the “legal” work related to eDiscovery. That is my job. Some vendors are now employing attorneys to assist with projects.  However, you need to be careful.  First, if those attorneys are giving legal advice-they are practicing law and any malpractice may not be covered by a general liability policy from the vendor.  Second, you need to vett those attorneys and make sure they have the requisite litigation background to be dispensing legal advice and strategy.

Additionally, you need to make sure that you have the appropriate documentation in place before the first megabyte of data leaves your office.  Do not rely on the court rules alone to make sure you (and your client) are protected.  A robust eDiscovery agreement that includes search terms, custodians, formatting (i.e. the fields and metadata you want), and a clawback provision should be the first order of business.  The next thing should be a confidentiality agreement that would prevent an adversary from “leaking” any inadvertent disclosures. Which leads me to my next point.

Federal Rule of Civil Procedure 37 requires parties to “cooperate” in the discovery process. And while there is no hard and fast definition as to what “cooperation” means, I submit that leaking an inadvertent production to a newspaper is not very cooperative. It definitely has the desired effect: embarrassment to your adversary and throwing them off their game. Now, instead of the litigation itself, the adversary is worried about damage control and various other issues that have nothing to do with the litigation itself.  I am sure that attorneys, from the dawn of time, have used whatever weapons at their disposal to gain an advantage.  However, I submit that there are some things that are just too far.  I recall when I became an attorney, how proud I was.  How excited, thrilled and a little scared I felt to be joining such a noble profession.  That is what we are, we are professionals.  We are officers of the court.  We need to hold ourselves to a higher standard than just “win at all costs.” We also have an obligation to our fellow practitioners to be respectful and cooperate. This is not the Hunger Games.  The goal should not be to win the game at any cost.  The stakes of the game are higher because it implicates the dignity and nobility of the profession.

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Nothing contained in this blog should be construed as creating an attorney-client relationship or providing legal advice of any kind.  If you have a legal issue regarding cybersecurity, domestic or international data privacy, or electronic discovery, you should consult a licensed attorney in your jurisdiction.