Lawyers who fail to comprehend the ethical challenges surrounding the use of technology-assisted review (TAR) may unknowingly damage their clients’ cases and risk sanctions for the spoliation of evidence. Therefore, it is imperative that lawyers recognize the ethical and legal minefields associated with this tool to maximize its defensibility and effectiveness.
A recent webinar led by Reed Smith partner Anthony Diana, Google’s Head of E-Discovery, Enterprise Jack Halprin and Gabriela P. Baron, Esq., senior vice president of Conduent highlighted real-world hypotheticals involving the ethical use of TAR and key ehtical considerations for lawyers to consider:
- Duty of Competence: Comment 8 to ABA Model Rule of Professional Conduct 1.1 requires lawyers to “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” Lawyers need not become statisticians or software developers to meet this duty, but they must understand the technology well enough to oversee its proper use. In many cases, they may need to solicit advice from TAR experts.
- Client Communication: ABA Model Rule 1 requires lawyers to consult with clients about the means of accomplishing their objectives and to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions.” Thus, lawyers must be able to explain the risks, benefits, and logistics of using TAR to clients and keep them apprised of the status and any changes to the process throughout discovery.
- Confidentiality: ABA Model Rule 1.6 addresses technology’s impact on confidentiality and requires lawyers to make “reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” One controversial issue implicating this rule is whether to produce the seed set of documents used to train the TAR algorithm, which will include nonresponsive documents. Given the emphasis on cooperation in discovery under the Federal Rules of Civil Procedure, parties may want to share the seed set but mitigate the risk of inadvertent disclosure through means such as clawback agreements, sensitivity logs, auto-redaction tools, and quality-control procedures.
- Vendor Supervision: ABA Model Rule 5.3 puts the onus on lawyers to ensure that their vendors act ethically. Thus, the responsibility for every phase of discovery rests on the client and its lawyers, not third-party service providers. Lawyers should carefully vet their team to ensure that it has sufficient knowledge to construct sound methodologies.
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