E-DISCOVERY AND ETHICAL OBLIGATIONS IN PRODUCT LIABILITY CASES
CD: Could you provide an overview of the various ethical obligations that may arise when gathering, reviewing and producing documents for e-discovery?
Evans: The key issue is balancing the ethical obligation to identify and produce information against the needs of particular cases. Proportionality and reasonableness are key considerations, so the trick is balancing the burden and cost of search against the size of the case and the importance of the particular information.
Six: When collecting, reviewing and producing discoverable material, counsel must take reasonable steps to preserve and identify potentially relevant documents and data. But what is reasonable for one matter may be overly burdensome for another, and there is always the question of whether attorneys have done enough diligence and scoping to meet their discovery obligations, or whether there are more stones yet unturned. This challenge is further complicated by the cost and timing considerations that factor into the review of collected documents. Should all collected documents be individually reviewed by a human being for responsiveness, confidentiality and privilege? Or is it ethically permissible to instead turn to artificial intelligence or machine learning for such determinations? And when computers are leveraged for review, does counsel know enough about the technologies they have used to competently explain and vouch for their resulting document production?
Jan-Mar 2021 issue
Kirkland & Ellis LLP
Mayer Brown LLP