The rapid pace with which technology is changing and growing continues to pose a threat to digital and electronically stored information (ESI). In almost all offices and other workplaces, documentation is mostly done electronically: word documents, spreadsheets, databases, and others of the like. There has been an enormous increase in the production of electronic documents in both public and private sectors. Electronic mail or email communication, in particular, has become the primary means of both internal and external communication.
However, the preservation and management of these electronic documents is among the most important tasks for any organization. Without an adequate system to manage and archive information, there are high chances of important records and information being misplaced. One of the primary ways that electronic data can be lost is through neglect. It is therefore the duty of an organization to preserve relevant data, most importantly electronically stored information. It is also required that companies take reasonable steps to identify and safeguard documents and other data that may be pertinent to a litigation that may come up in the future.
The advent of electronic information gives rise to new methods of preservation. The preservation of such documents can give rise to certain ethical obligations. It is a challenge to not only carefully preserve the documents but also to decide what to preserve and what not to, given the tons of electronic data that is created every day. It is also a challenge to guarantee the electronic records’ reliability and authenticity.
In the context of eDiscovery, revealing metadata can raise ethical conflicts for practitioners. Information included in metadata might include privileged material. Lawyers handling the production of eDiscovery can ensure that they are not producing metadata unintentionally or when it is unasked for. As the use of technology increases, clients will have even more reason to rely on their attorneys for advice with respect to managing electronic information and discovery obligations.
A lawyer representing an organization is required to proceed with the issue in a way that it is in the best interest of the organization. However, if the lawyer gains access to electronic information that is proof of wrongdoing by another employee or officer, he may be mandated to report it to his authorities. This is a huge ethical dilemma that lawyers handling ESI usually face.