Lack of E-Discovery Tech Skills Means You're Ethically Incompetent in California

The State Bar of California Standing Committee on Professional Responsibility and Conduct issued an opinion in 2015 declaring that being incompetent in e-discovery matters can cause an attorney to violate his or her ethical duty of competence. Formal Opinion 2015-193 notes that while not every case involves e-discovery, almost every case potentially does. The attorney needs to always consider the chance that a witness has sent relevant email messages, or stored relevant information in a digital form. A lawyer has an obligation to either acquire the skills needed for e-discovery or engage a professional who can provide the needed expertise. The Bar specifies that skills are needed in the following areas:

1. Early case assessment for e-discovery issues.

2. ESI preservation procedures.

3. Review of clients' systems and storage.

4. Client's options for the preservation and collection of ESI.

5. Identification of custodians of relevant ESI

6. Meet & Confer on an e-discovery plan.

7. Data searches.

8. Preservation of the integrity of collected ESI

9. Production in an appropriate manner.

The Bar makes reference to Judge Scheindlin's decision in Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC which set gross negligence standards with respect to counsel's e-discovery duties.

The opinion faults attorneys who fail to take the following steps:

1. perform an assessment before agreeing to an e-discovery plan at a case management conference.

2. understand when search terms could be overboard.

3. supervise a client's search of its network.

4. review search results before production.

5. warn Client to suspend ESI deletion protocols.

The California Bar advises that an attorney has a duty to supervise the work of vendors, contractors, and clients. An attorney can't assume that a client's IT department has better understanding of network searches for litigation purposes than he or she does. It endorses the view that, "A lack of reasonable care to protect against disclosing privileged and protected information when producing ESI can be deemed a waiver of the attorney-client privilege."

The Bar concludes with the statement that, "Depending on the factual circumstances, a lack of technological knowledge in handling e-discovery may render an attorney ethically incompetent to handle certain litigation matters involving e-discovery"