• Litigators Beware: Your Ethical Duty of Competence Includes E-Discovery
  • August 24, 2017 | Author: Mandy L. Jeffcoach
  • Law Firm: McCormick, Barstow, Sheppard, Wayte & Carruth LLP - Fresno Office
  • The California State Bar in Formal Opinion No. 2015-193 has advised that an attorney risks violating the ethical duty of competence if he fails to adequately understand and perform e-discovery—that is, discovery of electronically stored information (ESI). . Intentional, reckless, or repeated failure to competently perform legal services risks violation and discipline under Rule 3-110 of the Rules of Professional Conduct.

    E-discovery is quickly becoming more and more important to case discovery. While e-discovery is still developing, the competent attorney must stay aware "of changes in the law and its practice, including the benefits and risks associated with relevant technology...."

    The Standing Committee On Professional Responsibility and Conduct of the California State Bar identifies nine tasks an attorney handling e-discovery should be capable of completing:

    1. Initially assess e-discovery needs and issues, if any;

    2. Implement or cause to implement appropriate ESI preservation procedures;

    3. Analyze and understand a client's ESI systems and storage;

    4. Advise the client on available options for collection and preservation of ESI;

    5. Identify custodians of potentially relevant ESI;

    6. Engage in competent and meaningful meet and confer with opposing counsel concerning an e-discovery plan;

    7. Perform data searches;

    8. Collect responsive ESI in a manner that preserves the integrity of that ESI;

    9. Produce responsive non-privileged ESI in a recognized and appropriate manner.

    The areas that appear to pose the greatest risk to attorneys are ESI preservation procedures and collection. The preservation of electronic information is an important part of e-discovery. Failing to properly preserve relevant information risks sanctions, ethics violations, and adverse inference jury instructions. The seminal case, Zubulake v. UBS Warburg, LLC, cited in more than 500 cases from all 50 states and Washington, DC, has summarized the duty to preserve electronic information as "[o]nce a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a 'litigation hold' to ensure the preservation of relevant documents." This duty applies to the attorney and the client. As such, an attorney needs to take adequate steps to ensure that his client understands the preservation obligations and acts accordingly. The above list advises the attorney must take steps to learn the client's systems and identify the predictable users who may have relevant ESI, then follow up to ensure those users preserve their potentially relevant ESI.

    Additionally, properly collecting relevant documents and information is a Pandora's box for attorneys. Gone are the days of a paper file. Instead, relevant information is located on computers, phones, laptops, IPads, in the cloud, on Twitter, etc. An attorney can easily violate his ethical duty by failing to properly locate and retrieve potentially relevant information. Thus, the question is what is a lawyer to do? Either get incredibly versed in e-discovery(which is ever changing) and the means of retrieving relevant information or consult with a third party who specializes in e-discovery. While the latter may cost more up front, it may produce attorney efficiencies and save client expense in the long run by using techniques like email threading, predictive coding, and computer assisted review to significantly reduce the volume of documents retrieved.

    If the reader has not heard of any of this technology or is questioning what any of the nine e-discovery areas means, there is a risk that under the latest opinion by the California State Bar on e-discovery, you are violating your duty of competence. Rest assured that most attorneys are not well-versed in this area, which is why there are third party vendors who specialize in performing these services. As such, when approaching your cases, keep in mind the role e-discovery will play and make sure you understand your obligations to your client, opposing parties and the Court.