Outsourcing is the rule, not the exception with EDD. We hire electronic data discovery vendors to collect and cull our data; we hire vendors to host our data; we outsource the coding and review functions to third party shops (sometimes in India) to speed the process; and we hire contract lawyers to sit in house and assist us with the review. The American Bar Association Committee on Ethics and Professional Responsibility has just issued a new opinion, outlining lawyers responsibilities in outsourcing. Formal Opinion 98-451, available from www.abanet.org. While not breaking new ground with this opinion, the ABA emphasizes the ethical responsiblities that lawyers and law firms have to supervise the third parties highed to perform these functions. Those duties range from protecting confidentiality of client information (Rule 1.6) to supervision of professionals and non-professionals performing the work ( Rules 5.1 and 5.3).
The bottom line is that lawyers have a duty to make reasonable efforts to ensure that the conduct of the lawyers and non-lawyers to whom tasks are assigned is compatible with the applicable ethical obligations of lawyers.
Because these outsourced service providers are so important to the process, this opinion underscores the importance of carefully choosing the third party providers, thoroughly evaluating what is to be outsourced and continually monitoring the work of the third parties. Therein lies one of the great challenges of finding the balance which is the objective of this blog, namely the balance between effective and effecient electronic discovery and full disclosure of relevant evidence in the litigation.
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