Ethical Issues in E-discovery Across the Globe Jonathan Sachs,
Esq. Robert Jones, EMEA
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Proprietary and Confidential | Kroll Ontrack Overview
Introduction: Todays Global Ediscovery Challenges Ediscovery:
Professional Rules of Conduct Considerations: Cultural and
Practical Considerations Issues: New and Emerging Technologies
2
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Introduction: Todays Global Ediscovery Challenges 3
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Proprietary and Confidential | Kroll Ontrack 4 Common vs. Civil
Law Civil law Common law Sharia law Mixed law
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Proprietary and Confidential | Kroll Ontrack 5 Jurisdictional
Ediscovery Rules | UK Main differences between US and UK: Narrower
scope of discovery allowed in the UK: UK CPR Rule 31.6: requires
disclosure of documents on which the party relies or which affect
the case In the UK, there is the obligation to proactively produce
clients relevant documents to opponents Proportionality standards
more defined in the UK
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Proprietary and Confidential | Kroll Ontrack 6 Jurisdictional
Ediscovery Rules | U.S.A. Main differences between US and UK:
Broader scope of discovery allowed in the US: US FRCP 26(b)(1): any
matter, not privileged, which is relevant to the subject matter in
the pending action In the US, lawyers must request opponents
relevant documents Proportionality standards less defined
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Ediscovery: Professional Rules of Conduct 7
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Proprietary and Confidential | Kroll Ontrack Model Rules |
Integrity/Competence 8 Guidelines vary across international
borders, but Professional Conduct Rules all have the same
fundamental basis Trust & Integrity 2.2 Europe Competence 1.5
England U.S.A 1.1 Competence Competence counsel should keep abreast
of changes in the law and its practice, including the benefits and
risks associated with relevant technology Integrity in the Digital
Age - it is professional misconduct for a lawyer to engage in acts
that would overlook investigation into new and developing
technologies
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Proprietary and Confidential | Kroll Ontrack Model Rules |
Candor/Fairness Standard 9 Ireland 2.2 Legal Standard Fairness 3.3
England 3.3 Candor U.S.A Candor counsel should be open, frank and
honest in communicating the ediscovery process to clients and keep
clients up to date on potential sanctions and costs Fairness
counsel protects the clients best interests, which includes careful
and thorough ediscovery protocols
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Proprietary and Confidential | Kroll Ontrack Scott Adams,
Inc./Dict. by UFS, Inc. 10 Model Rules | Fairness
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Proprietary and Confidential | Kroll Ontrack Model Rules |
Confidentiality/Independence 11 1.6 U.S.A Confidentiality England
1.2 Service Ireland 1.3 Core Values 2.1 Independence Europe
Confidentiality the client and counsel relationship is
confidential, where recipient of information can lead to efficient
counseling of clients in the proper procedures of retaining and
maintaining electronic data for discovery Values and Service
counsel should exercise honesty and independence to provide clients
with services that best protect their interests in the ediscovery
matter
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Considerations: Cultural and Practical Considerations 12
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Proprietary and Confidential | Kroll Ontrack 13 Collecting Data
Scattered in Different Countries
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Proprietary and Confidential | Kroll Ontrack 14 Collecting Data
from Different Countries Consider employees groups and unions.
Industrial action is not unheard of Be aware of cultural
differences in working hours and holidays Large quantities of paper
(compared to electronic docs) in regions such as Middle East and
Africa There can be a need for security depending on country and
circumstances Cloud and multiple devices have made this more
complex ADVICE - LOCAL EXPERTISE IS ESSENTIAL
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Proprietary and Confidential | Kroll Ontrack Dont Go It Alone
Key Problem Areas 15 Procurement IT / Forensic Data Recovery
Document Review Hedrich v. Standard Bank London [2008] EWCA Civ
905
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Proprietary and Confidential | Kroll Ontrack 16 Reviewing
Documents in Multiple Languages
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Proprietary and Confidential | Kroll Ontrack 17 Complying with
Data Protection and Privacy Laws Restricting Data Transfer Across
Borders
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Proprietary and Confidential | Kroll Ontrack 18 Adopting a
Seamless Approach to Processing and Review Throughout Different
Countries
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Proprietary and Confidential | Kroll Ontrack 19 Dealing with
Clients with Different Ediscovery Experience Levels in Their
Countries
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Proprietary and Confidential | Kroll Ontrack Issues: New and
Emerging Technologies
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Proprietary and Confidential | Kroll Ontrack Social Networking
& Blogs Use of social networking sites and blogs creates
potential for ethical violations or disciplinary action for
misconduct Raises confidentiality, integrity and propriety issues
Attorneys cannot friend under false pretenses to gain access to
profiles and information otherwise kept private 21
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Proprietary and Confidential | Kroll Ontrack Know How to
Counsel Your Client Caution clients against altering or destroying
social media materials that may be relevant to the case Counsel
clients about using social media prudently Monitor their use to
ensure they don't jeopardize the case Will your clients follow your
sage counsel? Who knows? Make sure you confirm the advice in
writing 22
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Proprietary and Confidential | Kroll Ontrack Think before You
Tweet
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Proprietary and Confidential | Kroll Ontrack Mobile | Legal
Teams Grapple with BYOD 24 Legal professionals surveyed about the
number of ediscovery matters involving BYOD data in 2014 Kroll
Ontrack Ediscovery Trends Survey, 2014
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Proprietary and Confidential | Kroll Ontrack Whats Next | The
Internet Of Things (IoT) The Internet of Everything: A network of
physical objects accessed via the Internet 4.9 billion connected
things will be in use in 2015 (up 30 percent from 2014) IoT devices
will reach 25 billion by 2020 IoT is a powerful force for business
transformation, and its disruptive impact will be felt across all
industries and all areas of society. Gartner, Inc. 25
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Proprietary and Confidential | Kroll Ontrack Whats Next | The
Internet Of Things (IoT) 26 Legal professionals surveyed about
readiness for the IoT revolution Kroll Ontrack Ediscovery Trends
Survey, 2014
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Proprietary and Confidential | Kroll Ontrack Parting Thoughts
Around the world, the connection between ediscovery and current
ethics rules is growing stronger To ensure you are upholding the
oath integral to the legal profession in any global jurisdiction,
develop a stronger understanding of ediscovery and its interplay
with ethical obligations 27
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Proprietary and Confidential | Kroll Ontrack 28 Jonathan Sachs,
Esq. Director, Strategic Markets 600 3 rd Avenue New York, NY 10016
[email protected] Cell: 908.591.7601| NY Office Direct:
212-833-3206 www.ediscovery.com Robert Jones, EMEA Managing Legal
Consultant Nexus, 25 Farringdon Street London, EC4A 4AB
[email protected][email protected] Mobile: +44
(0)78 1439 6496 | Office: +44 (0)20 7549 9668
www.ediscovery.com