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Online e-Discovery Ethics
Relevant information is as likely to be found on phones, websites, Facebook, e-mail and voicemail messages, as it is in a file cabinet ' maybe even more so today. Although attorneys are rapidly becoming familiar with structuring digital data requests and responding to those requests in a way that is thorough, but reasonable, most attorneys feel at sea in the e-discovery ethics arena. More than a dozen states have addressed e-discovery ethics and have concluded that “reasonability” is the standard by which ethical digital behavior will be judged.
In NJ, Advisory Committee on Professional Ethics Opinion 701 (2006) states that an attorney may use the Internet to communicate with clients and store client files, provided that the attorney uses reasonable care. This ethics opinion also requires New Jersey attorneys to make a reasonable effort to provide security on the Internet against hacking and other forms of unauthorized use of digital information. Additionally, attorneys are required to use reasonable care to prevent against unauthorized disclosure of digital documents with which the lawyer has been entrusted, as well as reasonable care to ensure that digital documents entrusted to a third party for analysis are preserved, confidential and secure, according to the ethics opinion.
The New Jersey reasonability standard applies to a requirement that attorneys be reasonably educated in Internet-related technology. As noted in Ethics Opinion 701, New Jersey attorneys are considered reasonably competent regarding e-discovery when they avoid being rendered useless, and can maintain the duty of confidentiality, as well as competently overseeing nonlawyers, including e-discovery experts.
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