On October 8, 2015, Kathryn Konzen, Esq., Director of Business Development and Litigation Technology at Paul, Plevin, Sullivan & Connaughton, gave a timely and comprehensive MCLE presentation on “Ethical Issues in Electronic Discovery.” Kathryn was assisted by Alex Marjanovic of DTI Global, which provides legal services and support in the area of electronically stored information (ESI).

Many of us are aware of some of the major cases in which eDiscovery issues have arisen, resulting in losing parties having to pay millions of their opponents’ legal fees. The courts have also ordered sanctions against certain attorneys for not complying with eDiscovery requirements. ESI issues are now becoming commonplace in almost every litigation case, so there is a pressing need for attorneys to be aware of, and diligently comply with, ESI requirements. These requirements include not only disclosing ESI, but preserving ESI whenever litigation or an administrative proceeding is reasonably anticipated. These issues arise not only with e-mail, but also with social media stored information.

Some of the specific ethical issues that Kathryn discussed were:

• guarding against unauthorized practice of law by document reviewers;
• the duty to supervise non-attorneys involved in the electronic discovery process;
• the duty of reasonable inquiry prerequisite to certifying discovery completion;
• the duty of candor, both to the tribunal and opposing counsel;
• the duty to provide effective and competent representation;
• the duty to protect client confidences in electronic discovery;
• the ethics of data mining; and
• key cases involving electronic discovery where ethical failures occurred, and the sanctions imposed as a result

The La Jolla Bar Association thanks Kathryn and Alex for the excellent presentation. We anticipate additional presentations in this area in the future because of the dynamic, evolving nature of this important topic.