E-Discovery Bytes : E-Discovery Lawyer & Attorney : Quarles & Brady Law Firm : Electronic Discovery, Data Preservation, Conversion, Computer Forensics

Should lawyers be able to move about as freely within social media as the rest of the population, despite the risk to themselves and their clients? Perhaps Dr. Seuss said it best in Horton Hears a Who, although the full verse ought to have gone something like this:

"A person’s a person, no matter how small."
And your lawyer’s a person as well, after all.
So Twitter and LinkedIn and Facebook's friend wall --
They aren’t just yours, but are his ports of call.

When engaging in social media, the last thing an attorney and his client have in mind is the almighty “E” word: ETHICS. But an attorney’s use of social media poses a multitude of ethical risks that impact that attorney, his law firm, and his client.  Of course, it is hardly feasible (and, the author of this blog humbly adds, hardly fair) to exclude attorneys from what has become the communicative oxygen of the twenty-first century. Nonetheless, attorneys must take more care than most individuals as to what they post online. Otherwise, they risk opening a Pandora’s box of ethical violations that impact themselves, their firms and their clients -- such as breaches of confidentiality, conflicts of interest, the creation of unintended relationships, and improper advertising. And those are only the obvious possibilities.

What are some of the ethical rules under the ABA Model Rule of Professional Conduct ("ABA MPC") that one’s attorney can commit on social media, that endanger a client’s case or information, among other things?

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What makes an e-discovery search legitimate and defensible?

While virtually every case involves a search for relevant electronically stored information ("ESI"), there is no industry-based definition or measure of a “legally defensible” search. Reminiscent of Supreme Court Justice Potter Stewart's famous quip, some think we know a good search “when we see it,” but the simple and embarrassing truth is that we do not have an operative definition of search acceptability. The lack of any such industry standard for searching and finding ESI in a case wreaks havoc in the field and leaves it to courts to determine, on a case by case basis, whether a particular search passes muster. Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.d. 251 (D. Md. 2008).

But while judicial officers are many things, they are not search experts. United States v. O’Keefe, 537 F. Supp. 2d. 14 (D.D.C. 2008); Equity Analytics, LLC v. Lundin, 248 F.R.D. 331(D.D.C. 2008). In fact, many judges were elevated to judgeship years or even decades before ESI became prevalent, and thus lack any practical experience in searching for, processing, or producing ESI. Putting the question to the courts will therefore result (and has resulted) in disparate answers that vary from jurisdiction to jurisdiction depending both on how the search issues are presented, and on the quality and quantity of resources each side brings to the court. Do we want an approach that may lead to different search standards, say, in a federal court in Chicago versus a state court in Los Angeles?

The risk is simply too great and the issues too pressing, to allow a generation or two of common law decisions across multiple jurisdictions to be cobbled together to shape an overarching definition of a "good" search that counsel and clients can rely upon -- one that will stand up to judicial scrutiny.  That's where "ICAIL," the International Conference of Artificial Intelligence and Law, and its Discovery of Electronically Stored Information (DESI) Workshop, comes in.

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