Ethics of E-discovery

The Paralegal Resource
February 17, 2014 — 1,330 views  
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A paralegal in the world of technology has to be sure about the ethics of e-discovery as it is a key aspect of most cases. A lot of what is recorded in contemporary times is typically in emails, or other electronic documents, also known as electronically stored information or ESI.

What is a Paralegal’s Role in E-Discovery?

E-discovery has been recognized by Federal Rules of Civil Procedure and state procedural laws and allows all the parties in a case to use information in order to discover facts to help take a case forward.

As a paralegal, you will also need to assist in creating ESI preservation policies for the client and ensure all the federal rules are followed. If you want to take up e-discovery, you need to have a paralegal certificate, training, etc, but e-discovery procedures are typically learnt on the job.

A paralegal who has to conduct an effective e-discovery interview should keep in mind the following:

  • Rely on the specific case and not merely the interview template to ask the client relevant questions.
  • You could get the help of a technology expert because the template will have a lot of questions pertaining to electronically-stored information and technical aspects such as backups and servers.
  • Ask for more information, such as emails being discussed, the folders they are placed, and take notes with the help of the tech expert to verify details.
  • Also, ask for the history of the case and when the client was using a specific computer, drive or a software program and if any of them have been changed.
  • Don’t forget to question the IT or admin support individual(s) who are involved in the backend and get more details from them. Then, verify all of the facts gathered during the interview, collate them and put together a document.

Ethics of E-Discovery

Make sure your clients are aware of what involves ESI preservation, and if you are unaware, get the assistance of a tech expert as well. Also, make sure data that could be relevant in the course of the trial is protected carefully. The use of the most modern of e-discovery technology can help lower mistakes that could occur during discovery or interview of clients and witnesses.

If you are a lawyer or paralegal, you will need to send a litigation hold letter to your client and others involved. This hold letter will tell them of what they need to do for preservation of ESI, tell them what needs to be preserved, and also request them not to delete or overwrite media, or recycle computers.

Rules of the Land

Paralegals must be conversant with the Federal Rules of Civil Procedure and the Model Rules of Professional Conduct which outline the framework for ethical behavior. Also, last year, the American Bar Association (ABA) gave the go-ahead for a resolution that needs lawyers to keep themselves aware of “relevant technology” so as to represent their clients well. This is now the Model Rule 1.1 which is often known as the “competence” rule.

The Paralegal Resource