Earlier this summer, the California State Bar formally addressed the ethical obligations of counsel to be competent in matters of e-discovery and specifically established standards for counsel practicing in California. (Formal Opinion No. 2015-193). The Bar stated, “[e]lectronic document creation and/or storage, and electronic communications, have become commonplace in modern life…attorneys who handle litigation may not ignore the requirements and obligations of electronic discovery. A lack of technological knowledge in handling ediscovery may render an attorney ethically incompetent to handle certain litigation matters involving ediscovery, absent curative assistance.” The Opinion went on to note that an attorney lacking the required competence for e-discovery issues has three options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation. Lack of competence in e-discovery issues also may lead to an ethical violation of an attorney’s duty of confidentiality.
Although the State Bar’s Opinion is advisory only, it provides much needed structure in a field that has historically been faced with varied interpretations and even more varied levels of competence in the field. Set within the parameters of a hypothetical bar exam question, the Opinion went on to discuss the 9 defined skills that attorneys should be able to perform in ediscovery (either “by themselves or in association with competent co-counsel”):
- Initially assess ediscovery 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 ediscovery 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.
Irrespective of whether the New York State Bar follows California’s lead, it is nonetheless critical for practicing attorneys (litigators in particular) to understand the intricacies of the ediscovery landscape and our many obligations in this area. Ultimately, attorneys’ obligations evolve as new technologies develop and become integrated with the practice of law. Make sure you are staying up to speed!