E-Pitfalls: Ethics and E-Discovery

Abstract

Written for a symposium on e-discovery, this Article addresses the convergence of ethics and e-discovery, and contends that the surprise and concern often expressed regarding ethical issues in e-discovery, which seem to view the use of such ethical considerations as novel, unusual, and contrary to traditional discovery practices, are overstated. In particular, this Article argues that despite the seeming distinctiveness of issues concerning electronically stored information, well-established ethical rules apply to these issues in very familiar patterns and approaches. After examining the interplay between legal ethics and the practice of law generally, the Article analyzes the recent Qualcomm decision and offers some insights into both the reasons behind the Qualcomm court's insistence on employing ethical precepts in the e-discovery context, and why the use of ethical principles in discovery is likely to continue. Specifically, two provisions within Federal Rule 26(g) invite the continued use of ethical principles: (1) the limited nature of Rule 26(g)'s authorization of sanctions, and (2) the "reasonable inquiry" required by Rule 26(g) before signing a disclosure, discovery request, or response.

Keywords: e-discovery, civil procedure, federal courts, legal ethics, litigation