Formal Opinion 749
In February, the NY County Lawyers Association Professional Ethics Committee issued Formal Opinion 749, addressing “[a] lawyer’s ethical duty of technological competence with respect to the duty to protect a client’s confidential information from cybersecurity risk and handling e-discovery when representing clients in a litigation or government investigation.” The committee summarized its detailed analysis as follows:
Key Insight: Spoliation of video evidence. Evidence must have existed and been in the control of a party.
Nature of Case: civil rights action
Electronic Data Involved: surveillance and taser video
Keywords: spoliation sanctions, multi-step analysis, Rule 37(e), routine retention policy.
Key Insight: accessibility of data, whether counsel had meaningful discussions with his client regarding the ESI agreement, whether the meet-and-confer was meaningful
Nature of Case: employment discrimination
Electronic Data Involved: e-mail
Keywords: cost shifting, ESI agreement, meaningful negotiation, meet-and-confer, undue burden or expense
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