Document Type

Working Paper

Publication Date

2-20-2009

SSRN Discipline

Economics Research Network; Legal Scholarship Network; Law School Research Papers - Legal Studies; Litigation, Procedure & Dispute Resolution eJournals; Law & Society eJournals; LSN Subject Matter eJournals; Innovation Disciplines eJournals; Law School Research Papers - Public Law & Legal Theory; Financial Economics Network; IRPN Subject Matter eJournals; Innovation Research & Policy Network

Abstract

Written for a symposium on ediscovery this Article addresses the convergence of ethics and ediscovery and contends that the surprise and concern often expressed regarding ethical issues in ediscovery which seem to view the use of such ethical considerations as novel unusual and contrary to traditional discovery practices are overstated In particular this Article argues that despite the seeming distinctiveness of issues concerning electronically stored information wellestablished ethical rules apply to these issues in very familiar patterns and approaches After examining the interplay between legal ethics and the practice of law generally the Article analyzes the recent Qualcomm decision and offers some insights into both the reasons behind the Qualcomm courts insistence on employing ethical precepts in the ediscovery context and why the use of ethical principles in discovery is likely to continue Specifically two provisions within Federal Rule 26g invite the continued use of ethical principles 1 the limited nature of Rule 26gs authorization of sanctions and 2 the reasonable inquiry required by Rule 26g before signing a disclosure discovery request or response

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