Electronically stored information (ESI) continues to be a “hot topic” of discussion in the legal profession. As many attorneys struggle to make sense of the inevitable merging of the law they have always known and the technology they often fear, State Bar Associations are (at a slow but steady pace) trying to provide some meaningful guidance on the subject.
After the 2006 Amendments to the Federal Rules of Civil Procedure specifically addressed industry concerns regarding the handling of ESI by attorneys, many State Bar Associations have provided some sort of “Best Practices in eDiscovery” guides for their members. (e.g. Best Practices in eDiscovery in New York State and Federal Courts). However, the language in these “guides” has been very general and somewhat forgiving in what States (thus far) are classifying as a “competent” attorney in regards to necessary knowledge of technology and eDiscovery.
As a sign that things are changing, The State Bar of California Standing Committee on Professional Responsibility and Conduct recently released Formal Opinion Interim No. 11-0004. The main issue addressed in the opinion was “What are an attorney’s ethical duties in the handling of discovery of electronically stored information.” Although only an Advisory Opinion, the language used was indicative of not only where California is in regards to their eDiscovery practices, procedures and requirements, but where we may be headed in the industry as a whole.
More specifically, the Advisory Opinion states in part:
“We start with the premise that “competent” handling of e-discovery has many dimensions, depending upon the complexity of e-discovery in a particular case. The ethical duty of competence requires an attorney to assess at the outset of each case what electronic discovery issues, if any, might arise during the litigation, including the likelihood that e-discovery will or should be sought by either side. If it is likely that e-discovery will be sought, the duty of competence requires an attorney to assess his or her own e-discovery skills and resources as part of the attorney’s duty to provide the client with competent representation. If an attorney lacks such skills and/or resources, the attorney must take steps to acquire sufficient learning and skill, or associate or consult with someone with appropriate expertise to assist. Rule 3-110(C).”
They go on further to state specific skill requirements as seen below:
“Taken together generally, and under current technological standards, attorneys handling e-discovery should have the requisite level of familiarity and skill to, among other things, be able to perform (either by themselves or in association with competent co-counsel or expert consultants) the following:
- initially assess e-discovery needs and issues, if any;
- implement appropriate ESI preservation procedures, including the obligation to advise a client of the legal requirement to take actions to preserve evidence, like electronic information, potentially relevant to the issues raised in the litigation;
- analyze and understand a client’s ESI systems and storage;
- identify custodians of relevant ESI;
- perform appropriate searches;
- collect responsive ESI in a manner that preserves the integrity of that ESI;
- advise the client as to available options for collection and preservation of ESI;
- engage in competent and meaningful meet and confer with opposing counsel concerning an e-discovery plan; and
- produce responsive ESI in a recognized and appropriate manner.“
This is a far more specific than the language used in the ABA’s Model Rules of Professional Conduct at this time, where it states:
Rule 1.1 Competence – A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Comment: Maintaining Competence – To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.
This recent Advisory Opinion in California appears to indicate that eDiscovery has not only arrived, but it is here to stay. In other words, attorneys willingness to adapt to the merging of technology and law will no longer be a choice, but before long, an ethical obligation. This seems to be the tone that The California’s State Bar is taking as they appear to be leading the way.
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