What are an attorney’s ethical duties when it comes to handling the discovery of electronically-stored information (ESI)? The State Bar of California’s Standing Committee on Professional Responsibility and Conduct has discussed and offered a formal opinion on this question.
The committee specifically considered attorneys’ ethical duty of competence and how it evolves in the face of emerging technologies. While this duty must always be reevaluated by the specific ESI and eDiscovery demands of each matter, attorneys need to be prepared for their required level of competence to exceed their personal knowledge or experience. If this is the case, how can the duty of competence be met?
With concern that a lack of sufficient technical understanding could not only violate an attorney’s duty of competence but also their duty of confidentiality, the committee found that counsel lacking the necessary level of competence for eDiscovery issues on a matter has three choices:
- Acquire sufficient learning and skill before performance is required
- Associate with or consult technical consultants or competent counsel
- Decline the client representation
In the meet and confer, both parties must sit down and discuss the ESI protocol for their matter. If either side does not have a sufficient understanding of the eDiscovery issues of the matter, they risk being taken advantage of by opposing counsel and if both sides lack this knowledge, they risk being unable to reach an agreement. Most courts will insist on an ESI agreement being drawn up between both parties and if one party lacks a sufficient understanding of the data involved in their case, the other side may inadvertently gain access to confidential information or accidentally losing relevant ESI and facing sanctions.
Although there are some matters that do not involve eDiscovery, virtually all litigation today has the potential to require eDiscovery and the knowledge of how to responsibly treat the relevant ESI. This is because the odds that at least one party or witness in a dispute has used some kind of electronic communication or stored information digitally are very high. As such, attorneys should be able to make an initial assessment of a matter’s eDiscovery needs and be prepared to implement the proper ESI preservation procedures. In addition, they should have a thorough understanding of their client’s ESI systems and storage, be able to advise on data collection options, identify custodians of potentially relevant ESI, formulate an eDiscovery plan with opposing counsel, and perform data searches. Finally, an attorney who is competent with the responsibilities of eDiscovery should be able to collect ESI in such a way that the data’s integrity is preserved and produce responsive, non-privileged ESI in a manner agreed upon with opposing counsel.
eDiscovery is now a standard component of most litigation matters. As discussed by the State Bar of California’s Standing Committee on Professional Responsibility and Conduct, attorneys may not ignore their obligations when it comes to handling ESI. Even if they are highly experienced in other regards, lacking the technical knowledge to properly conduct eDiscovery may render an attorney ethically incompetent to represent their client in certain matters, unless they supplement that knowledge with new training or the assistance of an eDiscovery expert.
