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Traditionally, courts have sanctioned parties and their counsel for engaging in abusive discovery practices that prejudice their opponents, for intentionally destroying evidence and, under certain circumstances, for negligently failing to prevent the destruction of evidence. In addition, disciplinary committees have punished attorneys for engaging in discovery practices that violate ethics rules governing attorney conduct. These rules have provided the courts with the necessary tools to police traditional paper-based discovery. The question before us is whether these rules can also provide the tools the courts need to address the new challenges with respect to attorney and party conduct created by e-discovery. In the traditional discovery context, determining whether a party has failed to meet its discovery obligations is fairly straightforward: It is not very difficult to determine whether certain documents have been collected from a party’s files and whether relevant documents that were collected were then produced. Likewise, determining whether there has been negligent or intentional spoliation or alteration of evidence during the preservation, collection, review and production stages is also straightforward: A paper document either exists or it doesn’t, and altering paper documents without leaving traces of the alteration requires a great deal of skill-even when done with the greatest care, it can almost always be detected. Moreover, preserving, collecting, reviewing and producing paper documents is relatively straightforward because hard-copy documents generally take one form and require no special devices to view them. On the other hand, e-discovery, which involves the preservation, collection, review and production of electronic data, is much more complicated because it generally involves data in different formats, such as e-mail and document files. These data may be stored in different locations, such as notebook or desktop computers, network servers and mainframe computers. Moreover, data stored electronically are easily modified, intentionally and unintentionally, without leaving discernible evidence of the change-indeed, electronic data can be modified and deleted by the computer itself, without human intervention. Merely determining what e-data are subject to preservation poses challenges not present in traditional discovery. The sheer volume of e-data can make it difficult to identify data subject to preservation in some cases. For example, backup tapes generally include vast amounts of data, only a small portion of which may be relevant, and therefore subject to preservation. Likewise, the propensity of e-data to multiply exponentially can make the task of determining what data must be preserved and how best to preserve it a monumental one. For example, a set of daily, weekly and monthly backup tapes of one computer may each contain one copy of every e-document that was on the computer at the time the first backup was created, plus multiple copies of any e-documents created in the interim. To complicate matters further, data stored on offline magnetic media, such as backup tapes, may have to be restored�in some cases requiring that obsolete computer systems be replicated-simply to determine what data are stored on the media. At times, it may seem to parties and their counsel that the only way to meet their preservation obligations is to preserve every scrap of e-data�every e-mail, every electronic document, every database record and every backup tape created. However, such a strategy, while ensuring that the party is meeting its preservation obligations, would cripple most companies and preclude them from carrying on their day-to-day business. While there is a dearth of clear and consistent guidance from the courts for parties and their counsel with regard to the preservation and production of e-data, counsel and parties who are prepared and take reasonable steps to comply with their obligations will be in a better position to defend their efforts to preserve and produce e-data than those who do not. Attorney conduct is governed by the rules of ethics, and it is a fundamental tenet of the American Bar Association Model Rules of Professional Conduct (MRPC) that in all professional functions a lawyer should be “competent, prompt and diligent.” MRPC preamble (2003). Indeed, the MRPC preamble charges lawyers, as members of the legal profession and officers of the court, with a “special responsibility” for the quality of justice delivered, which includes knowing and complying with the Rules of Professional Conduct for the jurisdictions in which attorneys practice. Id. MRPC Rule 1.1, for instance, mandates that a lawyer shall provide competent representation, which means he or she must possess the “legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Moreover, it is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice. MRPC 8.4(d). These fundamental tenets apply to all attorneys-litigation and corporate counsel, in-house and outside counsel-alike. While these are fairly lofty mandates for lawyers, how do they relate to e-discovery? The answer is as clear as it is significant: With an ever-increasing percentage of all data created being stored electronically, the retention, preservation and production of e-data will continue to play an increasingly important role in litigation. As a result, lawyers must be prepared to act with “diligence and competence” and with a sense of urgency with regard to meeting the obligations created by e-discovery. For example, once a party is on notice that certain e-data are relevant to the litigation at hand, the obligation to preserve this evidence runs first to counsel, who has the duty to timely advise his client of its obligation to retain pertinent documents that may be relevant to the litigation. See Telecom Int’l Am. Ltd. v. AT&T Corp., 189 F.R.D. 76, 81 (S.D.N.Y. 1999). See also MRPC 3.4(a) (2003). These ethics rules also form the framework that keeps the discovery process from becoming a free-for-all; they are essential tools that courts use to police attorney conduct during the e-discovery process. But by themselves, the rules of ethics do not provide the courts with what they need to handle e-discovery problems. Courts must rely on both applicable ethics principles and the rules of civil procedure to ensure that counsel and the parties that they represent do not engage in discovery practices that will prejudice their opponents. For example, federal courts look to the Federal Rules of Civil Procedure, which set out the broad rules governing the behavior of litigants and their counsel during discovery. The obligation to comply with these rules falls from the very outset on the lawyer and, thereafter, on his client. Courts also have the inherent power to punish counsel or a party for litigation misconduct with a broad range of sanctions, including the imposition of fines, the award of attorney fees, the preclusion of evidence and/or defenses and the ultimate sanction: dismissal of the case. See Shepherd v. American Broad. Cos., 62 F.3d 1469, 1474-75 (D.C. Cir. 1995). The responsibility of counsel The severity of the sanction imposed by courts is generally dictated in large part by the presence of bad faith in the party abusing the discovery process or destroying evidence, and by whether the party seeking the evidence is substantially prejudiced by its unavailability, alteration or loss. While, at the end of the day, the duty to preserve relevant electronic data rests with the party to the litigation, courts will generally look to the attorneys for those parties in evaluating whether a failure to preserve and timely produce relevant information was excusable under the circumstances or whether the failure merits the imposition of sanctions on the party and/or its counsel. Indeed, because parties may be sanctioned for their lawyer’s misconduct, it is imperative that parties and their counsel communicate and closely coordinate activities related to discovery of electronic data. See Link v. Wabash Railroad Co., 370 U.S. 626, 633-34 (1962) (parties are bound by the acts and omissions of their counsel). In the fifth and most recent opinion regarding electronic discovery in the Zubulake v. UBS Warburg LLC case, No. 02 Civ. 1243, 2004 WL 1620866 (S.D.N.Y. July 20, 2004) ( Zubulake V), Judge Shira Sheindlin noted that the central question before the court was whether UBS and its counsel had taken “all necessary steps to guarantee that relevant data was both preserved and produced.” Id. at 7. In analyzing whether counsel had discharged their duty, Sheindlin stated that counsel have a duty to monitor compliance so that all sources of discoverable information are identified and searched to locate relevant information; to become fully familiar with their client’s document-retention policies and data-retention architecture; to advise their client to issue a “litigation hold” at the outset of the litigation (or whenever litigation is reasonably anticipated); to communicate directly with “key players” or persons who are likely to have relevant information; to instruct all employees to produce electronic copies of their relevant active files; and, finally, to ensure that all backup tapes (and other backup media) that are subject to preservation are identified and stored in a safe place. Another recent case from the Southern District of New York, Metropolitan Opera Ass’n Inc. v. Local 100, Hotel Employees & Rest. Employees Int’l Union, 212 F.R.D. 178 (S.D.N.Y. 2003), prior opinion adhered to on reconsideration, as clarified, 2004 WL 1943099 (S.D.N.Y. Aug. 27, 2004), while an extreme example, also demonstrates the circumstances under which courts will sanction parties and their counsel for abusing the discovery process. The Metropolitan Opera court granted the plaintiffs’ motion for judgment on liability and awarded attorney fees as a sanction in a case it described as one that “presented the unfortunate combination of lawyers who completely abdicated their responsibilities under the discovery rules and as officers of the court and clients who lied and, through omission and commission, failed to search for and produce documents and, indeed, destroyed evidence-all to the ultimate prejudice of the truth-seeking process . . . .[B]oth the lawyers and the clients exhibited utter and complete disregard for the rules of the truth seeking process in civil discovery.” 212 F.R.D. at 181. The court found that counsel failed to meet their obligations under Fed. R. Civ. P. 26(g), which requires a certification ” ‘that the lawyer has made a reasonable effort to assure that the client has provided all the information and documents available to him that are responsive to the discovery demand.’ ” Metropolitan Opera, 212 F.R.D. at 222 (quoting Fed. R. Civ. P. 26(g) advisory committee note to 1983 amendment). In reaching this conclusion, the court stated that counsel “(1) never gave adequate instructions to their clients about the clients’ overall discovery obligations, what constitutes a ‘document’ or about what was specifically called for by the Met’s document requests; (2) knew the union to have no document retention or filing systems and yet never implemented a systematic procedure for document production or for retention of documents, including electronic documents; (3) delegated document production to a layperson who . . . did not even understand himself (and was not instructed by counsel) that a document included a draft or other non-identical copy, a computer file and an e-mail; (4) never went back to the layperson designated to assure that he had ‘establish[ed] a coherent and effective system to faithfully and effectively respond to discovery requests’ [citation omitted]; and (5) in the face of the Met’s persistent questioning and showings that the production was faulty and incomplete, ridiculed the inquiries, failed to take any action to remedy the situation or supplement the demonstrably false responses, failed to ask important witnesses for documents until the night before their depositions and, instead, made repeated, baseless representations that all documents had been produced.” Id. at 222 (citations omitted). Focus on ethical obligations While the court’s order was based primarily on Fed. R. Civ. P. 26(g) and 28 U.S.C. 1927, the court repeatedly referred to counsels’ breach of their ethical obligations, describing their conduct as “wholly inconsistent with [their] obligations to conduct discovery in good faith,” and stated that counsels’ conduct “signal[ed] their continuing contempt for the discovery process and their preference for gamesmanship over their obligations as officers of the Court.” 212 F.R.D. at 189, 202. Ultimately, none of the “duties” enumerated in the Zubulake V and Metropolitan Opera cases are new; rather, these decisions are based upon long-standing rules and case law governing party and attorney conduct in traditional discovery. However, these courts have put parties and their counsel on notice that they must rise to the occasion with a sense of purpose and exigency and that they cannot use the “novelty” of e-discovery, the breakneck pace at which the technology at issue is evolving and the slow pace at which the law is evolving to meet the new challenges created by e-discovery to excuse a failure to timely preserve and/or produce relevant e-evidence. Parties and their counsel cannot engage in “know-nothing, do-nothing, head-in-the-sand behavior in an effort consciously to avoid knowledge of or responsibility for their discovery obligations.” See Metropolitan Opera, 2004 WL 1943099, at 25. These decisions also make perfectly clear that lawyers’ ethical obligations as officers of the court have not changed at all as a result of e-discovery-while being zealous advocates for their clients, lawyers also must protect and respect the judicial process, including the discovery process. In sum, while e-discovery has brought about a “sea change” in the way parties and their counsel conduct some aspects of discovery, the underlying precepts governing the discovery process have not changed. Existing discovery and ethics rules are up to the new challenges posed by e-discovery. While parties navigating the e-discovery shoals must proceed cautiously, yet expeditiously, and must do their part to meet these new challenges by acting in good faith and taking reasonable steps to preserve and produce e-data, existing discovery and ethics rules give the courts adequate tools to address parties’ behavior in the rare circumstances where parties fail to meet their discovery obligations. These existing rules also give the courts the tools they need to maintain a level playing field and to prevent parties and their counsel from engaging in discovery gamesmanship in an effort to gain an unfair advantage over their opponents. Kevin F. Brady is counsel, and Matthew I. Cohen is an associate, in the complex mass torts and insurance litigation group at Skadden, Arps, Slate, Meagher & Flom. Brady is resident in the firm’s Wilmington, Del., office, and Cohen in the firm’s New York office.

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