Migrated from eDJGroupInc.com. Author: Greg Buckles. Published: 2012-02-13 08:00:39  Behind our firewall, eDJ has a custom Google search engine based on the top 1,000+ eDiscovery related sites and search terms. I was ‘working’ on this engine over the weekend, as we all know that relevance is a moving target and searches must be optimized to stay relevant. A strange headline from my local paper caught my eye, “Falkenberg: Housing authority’s snoop had eye on others” from the Houston Chronicle. A quick scan revealed that the local county housing authority hired an eDiscovery service provider, Pathway Forensics, to make an open records request for emails, phone records and credit card statements of the local county judge and his staff. That same county judge has questioned recent large salary adjustments and pet projects of the housing authority’s top officials. The short article explains the almost comic plot to get some kind of dirt on an elected official who is trying to mind the public coffers. More relevant to our eDiscovery community is the questionable role that an eDiscovery service provider plays in this comedy of errors.Litigation discovery is an adversarial system. So much so that lawyers must have regular ethics CLE hours. Despite increased calls for cooperation such as The Sedona Conference Cooperation Proclamation, we all know the pressure that can be exerted by parties to gain every advantage in a fight. Late night conference tales are filled with stories of clients who just can’t understand why you cannot hide the ball or disappear a few inconvenient emails. None of us have enough information to cast aspersions on the folks at Pathway Forensics. When the county judge made his own request for information about the open records request, an unsigned cover letter stated, “You have been made aware of the serious criminal and conspiracy activity regarding this ongoing federal investigation of transmitting and illegally acquiring federally protected documents,” the letter read. “Please ensure that Open Records Request (sic) does not jeopardize the investigation. The possession and/or transmittal of illegally acquired information are a federal crime in regards to this ongoing federal investigation.”Just as our new eDJ contributor Lynn Frances threw out the question, “Is Keyword Search an Ethical Option?”, the entire eDiscovery community is still struggling to define ethical guidelines and boundaries. I was happy to see that the EDRM project headed by Eric Mandel, Kevin Esposito and Nancy Wallrich has published a Model Code of Conduct that covers providers and other discovery participants. One of my pat answers when asked my profession is, “I read your email.” This joke goes back to the early days of the Enron related criminal/regulatory investigations when my teams had to review millions of employee emails. With the power and access comes the responsibility to exercise that power responsibly. Sometimes that means turning down potentially lucrative work. Sometimes it means standing up to your clients and risking those relationships. The eDiscovery market has funded the development of fantastic new analytical technologies like social networking and predictive coding that are just now starting to be applied outside of the litigation arena. This means that these capabilities will be leveraged by politicians of every definition to public and private ESI collections without legal supervision. It is up to us, the eDiscovery community, to call attention to potential privacy violations, conflict of interest situations or unethical uses of our toys. Read the Model Code of Conduct, watch yourself on the slippery slope and talk to your peers when something does not feel right. Have you run into any other questionable uses of eDiscovery innovations? We would love to hear about them, either in a comment or send me an offline note at Greg@eDJGroupInc.com.

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