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EDRM Publishes Clarification to its Model Code of Conduct – eDiscovery Trends

Yesterday, we discussed an update to the Cooperation Proclamation: Resources for the Judiciary from The Sedona Conference®. Today, another titan of eDiscovery standards and best practices, EDRM, has an update of its own.

The EDRM Model Code of Conduct (MCoC) (previously covered by this blog here and here) focuses on the ethical duties of service providers associated with five key principles and also provides a corollary for each principle to illustrate ethical duties of their clients. Yesterday, EDRM announced a proposed clarification to the language in Principle 3 – Conflicts of Interest of the MCoC as well as a clarification to the language in the corollary to Principle 3.

As noted in their press release, the “clarification distinguishes between (a) entities that are “members of the team,” i.e., participants in shaping legal strategy; and (b) technology providers that, while delivering capabilities to the team, are not on the team; i.e., they are not privy to or helping to shape case strategy. Principle 3 of the MCoC is intended to apply to the former, not the latter.”

The revised Principle 3 now reads:

“When (a) a Service Provider is engaged primarily to provide consulting services in connection with the broad range of activities covered by the EDRM and (b) as a material part of that engagement the Service Provider receives information about case strategy or assists in developing case strategy, then the Service Provider should employ reasonable proactive measures to identify potential conflicts of interest, as defined and discussed below. In the event that an actual or potential conflict of interest is identified, the Service Provider should disclose any such conflict and take immediate steps to resolve it in accordance with the Guidelines set forth below.”

The revised corollary to Principle 3 now reads:

“Clients should furnish Service Providers subject to Principle 3 with sufficient information at the commencement of each engagement to enable each Service Provider to identify potential conflicts of interest. If an actual or potential conflict of interest is identified and disclosed and the Client elects to proceed with the engagement, the Client should work in good faith with the Service Provider and other parties to facilitate a resolution to any such conflict in accordance with the Guidelines set forth below.”

You can read the full code, download it, comment on the proposed changes or subscribe to the code here. You can also see all the subscribing organizations and individuals (CloudNine has been a subscriber to the MCoC since it was officially released in 2012).

So, what do you think? Is this a necessary revision to the code? Please share any comments you might have or if you’d like to know more about a particular topic.

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