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Litigating in California? Be Sure You’re Ethically Competent in e-Discovery

Last year the State Bar of California Standing Committee on Professional Responsibility and Conduct issued two draft opinions answering the question “What are an attorney’s ethical duties in the handling of discovery of electronically stored information?” After receiving public comment on the drafts, the Committee recently issued its final version, Formal Opinion No. 2015-193.

Ethics in ESI DiscoveryThe Committee answers this question unequivocally. Recognizing that “almost any litigated matter” now involves e-discovery, the Committee concludes that, to be competent as a litigator, an attorney must—at a minimum—have “a basic understanding of, and facility with, issues relating to e-discovery, including the discovery of electronically stored information (“ESI”).” For some matters, depending on the e-discovery issues involved, “the duty of competence may require a higher level of technical knowledge and ability. And “even a highly experienced attorney” may need some assistance in certain litigation matters involving ESI.

The State Bar of California Standing Committee on Professional Responsibility and Conduct’s Opinion on Ethics of Handling ESI Discovery

The Opinion offers a helpful, specific list of the e-discovery tasks a minimally competent litigator should be able to handle, either on their own or in association with competent co-counsel or expert consultants:

  • Initially assess e-discovery needs and issues, if any
  • Implement/cause to implement appropriate ESI preservation procedures
  • Analyze and understand a client’s ESI systems and storage
  • Advise the client on available options for collection and preservation of ESI
  • Identify custodians of potentially relevant ESI
  • Engage in competent and meaningful meet and confer with opposing counsel concerning an e-discovery plan
  • Perform data searches
  • Collect responsive ESI in a manner that preserves the integrity of that ESI
  • Produce responsive non-privileged ESI in a recognized and appropriate manner

As a lawyer with more than a decade of experience in e-discovery, I’m not embarrassed to say it—this list is challenging. For example, I would not consider myself competent to “perform data searches” on my own. While I understand quite a lot about search methodology, in my view the nuances of search and retrieval, whether using key word terms or more advanced analytics, require me to associate with a qualified expert to ensure my searches are effective and defensible. Likewise, I would bring in an expert consultant to help me “analyze and understand” a client’s ESI systems, at least with respect to the more technical aspects of the IT infrastructure.

Of course, if we engage experts to work with us, we must supervise their work—that oversight is a non-delegable duty for the attorney who is counsel in the litigation. We can do so by “remaining regularly engaged in the expert’s work, by educating everyone involved in the e-discovery workup about the legal issues in the case, the factual matters impacting discovery, including witnesses and key evidentiary issues, the obligations around discovery imposed by the law or by the court, and of any relevant risks associated with the e-discovery tasks at hand.” The rules of ethics also dictate we must ensure that the people we retain (including non-lawyers) comply with the same ethical obligations that govern us.

But as challenging as the list of competency tasks might be, it’s an appropriate list, and reflects the realities of litigating today. For most organizations, almost 100% of relevant information is stored electronically, and the large volumes of potentially relevant ESI make it exceedingly difficult to efficiently identify and collect what’s needed for discovery. The demands of modern litigation are forcing lawyers to up their game when it comes to ESI: “Attorneys who handle litigation may not ignore the requirements and obligations of electronic discovery.” Kudos to the California Bar for recognizing that, and providing guidance on what the required level of e-discovery competency looks like. Lawyers from every state, not just California, will benefit from that guidance.

Have questions about the implications of the California Opinion, or other aspects of ethics in e-discovery? Contact me and let’s chat.

Maureen O'Neill