4 eDiscovery Ethics Traps [and How Your Small Law Firm Can Avoid Them]

05 July 2019 by Anith Mathai eDiscovery small-law-firm ethics

4 eDiscovery Ethics Traps [And How Your Small Law Firm Can Avoid Them]

Takeaway: Regular ‘paper’ discovery has been around for a while. And we’ve kept it ethical by developing ‘model rules of professional conduct.’ But eDiscovery is relatively new. And we need to reinterpret many of these model rules. If we don’t, we fall into ethical traps such as: (1) Not systematically collecting and preserving data, (2) Not valuing a client’s budget, (3) Not protecting a client’s data, (4) Not knowing how to use eDiscovery software.

eDiscovery is filled with potential ethical traps for small law firms.

We have ‘model rules of professional conduct’ for regular ‘paper’ discovery. But we need to reinterpret these rules for eDiscovery and eDiscovery technology. If we don’t, we often fall into ethical traps.

So, what are some of these traps? And why are they traps in the first place?

Let’s look at 4 of the more common traps and the ‘model rules of conduct’ they violate.

Trap #1: Not systematically collecting and preserving eDiscovery data

Why is this a problem? ABA Model Rule 3.4 says: A “lawyer shall not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value.” This includes unintentional obstruction, alteration, destruction, or concealment.

The solution? We need to understand data collection in the context of electronic discovery (eDiscovery). And we need to put comprehensive systems in place. For example, when collecting and preserving data, we can ask:

  • Does everyone know about the ‘litigation hold’? What is your client’s data-retention policy? For example, do they automatically delete emails after a set period? Or do they delete the data of employees who leave the company? If so, they’ll have to stop this. And they’ll also need to back up their existing data.

  • Where is all the data stored? Can you see patterns in the way they use and store email, Word documents, internet downloads, texts, etc.? Spotting these patterns will help you root out overlooked data niches.

  • Is the metadata safe? Metadata (i.e., ‘data about data’) is a digital footprint which tracks the history of the document. It can make or break your case, but it’s easy to damage. For example, you’ll change the ‘last accessed’ metadata field just by copying a file to another computer. So, find eDiscovery software that will protect your metadata. Learn more about metadata and how to keep it safe.

Trap #2: Not valuing your client’s budget.

Why is this a problem? ABA Model Rule 1.5 says: “…a lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses…”

The solution?

  • Cull data early and thoroughly. A large portion of eDiscovery costs come from data processing and review. So, just because you can store and upload hundreds of GBs of data, it doesn’t mean you should.
  • Choose affordable software, so you can pass on the savings to your client. For example, choose eDiscovery software with a ‘fixed-volume’ pricing plan so you know exactly how much you’ll be paying every month.
  • ‘Rent’ your software instead of ‘buying’ it. When you buy eDiscovery software, you have to install it (and sometimes install hardware too), update it, and troubleshoot technical issues. Instead, buy an eDiscovery service – this is called ‘software as a service’ (SaaS). Here, your eDiscovery service provider runs the software for you in the Cloud and handles all the technical stuff. Learn more about SaaS.

Trap #3: Not protecting your eDiscovery data

Why is this a problem? ABA Model Rule 1.6 says: “…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 solution? Don’t store your data on your private servers or your office computer. Instead, store it in the Cloud. Cloud providers can help secure your data in these ways.

  • They protect your data from physical damage (fires, floods, etc.). And they have generators to make sure their servers are always powered up.
  • They protect your data from intruders and hackers. They do rigorous background and security checks for employees and IT professionals that come in contact with their servers. They use technology like encrypted biometric identification to make sure only authorized vendors connect with their servers. And they mask (i.e., hide within random characters) vital information like credit card numbers. Also, when you want to delete your data, they use crypto-shredding to delete the encryption keys.
  • They have advanced data recovery tools to retrieve your data if it gets lost. And they make sure your data doesn’t get mistakenly corrupted, edited, or mixed up with other users’ Cloud data.

Trap #4: Not knowing how to use your eDiscovery software

Why is this a problem? ABA Model Rule 1.1 says: Attorneys bear a duty to provide competent representation to their clients. Encompassed within this duty of competence is the duty to stay “abreast of … the benefits and risks associated with relevant technology.”

The solution? Use simple eDiscovery software, so it’s easier to understand its risks and benefits. The best applications take just minutes to figure out.

  • Load the software as you do with email. No need to download and install anything. Just go to the website, sign in, and start working. It’s like checking email.
  • Move files around as in Windows. Just drag-and-drop them into your eDiscovery browser.
  • Search as you do with Google. Just type your keywords into the search bar. Even with ‘advanced’ searches that have many interrelated keywords, you’ll be giving commands using simple drop-down bars.
  • Use single-click features like tagging and redacting. They’re easy to use, and transform the way you order and categorize your files.

Need simple software that’ll help you avoid common eDiscovery ethics traps? Try GoldFynch.

It’s a next-generation eDiscovery application that prioritizes things that matter to small law firms. That’s why:

  • It costs just $10 a month for a 1 GB case: That’s $25 less – every month – than the nearest comparable software. And hundreds of dollars less than many others. With GoldFynch, you know what you’re paying for exactly – its pricing is simple and readily available on the website.
  • It’s easy to budget for. GoldFynch has a flat, prorated rate. With legacy software, your bill changes depending on how much data you use.
  • It takes just minutes to get going. It runs in the Cloud, so you use it through your web browser (Google Chrome recommended). No installation. No sales calls or emails. Plus, you get a free, fully-functional trial case (0.5 GB of data and a processing cap of 1 GB), without adding a credit card.
  • It can handle even the largest cases. GoldFynch scales from small to large, since it’s in the Cloud. So, choose from a range of case sizes (1 GB to 150 GB, and more) and don’t waste money on space you don’t need.
  • You can access it from anywhere. And 24/7. All your files are backed up and secure in the Cloud. And you can monitor its servers here.
  • You won’t have to worry about technical stuff. It’s designed, developed and run by the same team. So, its technical support isn’t outsourced. Which means you get prompt and reliable service.

Want to learn more about GoldFynch?