August 29, 2012

ESI Management- Another Criteria for Expert Witness Selection

While you were probably already concerned about how your consultants and expert witnesses store and manage any electronically stored information (ESI) that is transmitted by you concerning your cases, now you have even more incentive.  In August 2012, the American Bar Association approved recommendations put forth from its commission on Ethics 20/20 that was formed a few years ago.  Recommendation 105A dealt with lawyers’ responsibility to reasonably safeguard their clients’ ESI.  While this was already a practice by many lawyers, this recent ruling addressed language to affirm and clarify this responsibility (although the definition of “reasonable” will be debated).  

How does this affect your handling of consultants/ expert witnesses?  An existing rule of professional conduct, Rule 5.3, states that when sharing information outside of the firm and to a non-lawyer, the lawyer should take reasonable assurance that the person’s conduct should be compatible with the professional obligations of the lawyer.  This existing rule, along with 105A, places more responsibility on lawyers and their expert witnesses to manage their ESI.

How candidate experts manage your documents may have been asked during your interview process, but going forward you may want to ensure this is a routine question – and yet another metric when sizing them up for the job.  Do they store client data on a PC, I-Pad, or thumb drive?  What happens if they lose that device?  Is the data encrypted or password protected?  Make sure they have answers.


The author,  Michael Fisher, is the President of The CECON Group and recently taught a course at the Jenkins Law Library in Philadelphia  entitled “Best Ethical Practices for Hiring and Managing Expert Witnesses.”  

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