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Surviving the E-Discovery Adventure: Ethical Challenges Shared by In-House and Outside Counsel

The Commercial Law Section

Summer 2009

Authors: Robert R. Simpson, Leander A. Dolphin

With even seasoned litigators just plain flummoxed by the e-discovery quagmire, there are serious ethical implications which must be understood, lest we place our clients, and our licenses, in jeopardy. Given the ever growing body of law dealing with one ethical failure or another in the e-discovery context, it is crucial that in-house and outside counsel develop a firm grasp of the potential pitfalls in e-discovery and the best strategies for how such hazards can be avoided.

After the barrage of e-discovery seminars and articles, we assume the reader has a basic understanding of the e-discovery rules; therefore, this article focuses on best practices in three areas where in-house and outside counsel may find themselves at odds: The initial hold letter, review and retrieval responsibilities, and escalating costs for privilege reviews. A common thread throughout these issues is the need for communication and cooperation between in-house and outside counsel to prevail over some of the ethical challenges they face in managing e-discovery.

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