As electronic data has become an important and growing aspect of litigation, attorneys face increased pressure to understand—and competently manage—the obligations associated with e-discovery.
The State Bar of California Standing Committee on Professional Responsibility and Conduct recently issued an opinion that was a stark reminder for litigators that ignorance of technology is not an excuse for incompetence. The State Bar of California’s decision held that: “[…] a lack of technological knowledge in handling e-discovery may render an attorney ethically incompetent to handle certain litigation matters involving e-discovery […] It may also result in violations of the duty of confidentiality, notwithstanding a lack of bad faith conduct.
A Scenario Full of Failure
To prove its point, the state bar’s opinion offered a fictional situation involving an attorney representing a client (the plaintiff) in litigation against the client’s chief competitor (the defendant). As part of the discovery process, the presiding judge ordered both parties to agree upon an e-discovery proposal for the case. The plaintiff’s attorney agreed on opposing counsel’s list of search terms, allowed an unsupervised search of the client’s network by the vendor, and did not review the electronic version of the data downloaded from the network by opposing counsel.
The list of mistakes by the plaintiff’s attorney was extensive, including: 1) He allowed unfettered searching of his client’s network by opposing counsel’s vendor; 2) He agreed to a list of search terms without being at all familiar with his client’s IT infrastructure and its legal hold policy; 3) He did not review the material collected by the vendor.
If this situation had been real instead of fictional, the failures would have resulted in the sharing of highly confidential trade secrets with a chief competitor and accusations from opposing counsel that relevant data had been deleted by the client.
Avoiding the Pitfalls of E-Discovery
The opinion uses the hypothetical failures to ask whether an attorney who acted as described would be in violation of his or her professional duties of competence and confidentiality. The answer is clearly yes.
The opinion also provides a list of steps attorneys should take to meet their e-discovery obligations, including:
Assess the case’s e-discovery needs;
Analyze the client’s electronically stored information systems and storage;
Engage in a meaningful meet and confer with opposing counsel;
Collect and search data; and
Produce appropriate documents.
In addition to the steps presented in the guidance and the associated responsibilities, attorneys can do other things to meet their e-discovery obligations. For attorneys who are not well versed in the technology and nuances of e-discovery, it is time to become more familiar with the topic. Gone are the days when a client’s records could be easily inventoried and copied for purposes of litigation. Attorneys seeking to expand their e-discovery expertise should consider the following:
Know where to look for data. The list of potential places where data might reside is long and varied. Company servers, cloud-based storage, personal devices, computer hard drives, external media, and structured databases are a few places to start.
Consider the IT department a partner. No longer can attorneys simply consult with a client’s in-house counsel or employees who are relevant to a particular matter. IT departments and records management personnel must be involved in identifying and preserving data.
Consult an expert. If attorneys find themselves out of their depth on e-discovery, they need to seek help. Working with an expert who can advise counsel on the appropriate actions for the e-discovery process can be very helpful. It is important to remember, however, that even if e-discovery tasks are outsourced, counsel still is responsible for supervising the process.
Research e-discovery tools. To avoid drastic consequences, attorneys need to be proactive in learning how to use the tools available to them. As with any technology that becomes necessary and omnipresent in a particular field, the e-discovery tools and processes used by legal practitioners are becoming widely accepted as useful in making relevant information searchable and available for production.
Stay up-to-date on the changing landscape. There are continuing legal education classes devoted to e-discovery—from the most basic concepts to advanced technologies. Free resources also are available online to explain how e-discovery should be administered, along with updates on the latest developments, as courts and professional organizations continue to advise lawyers.
Reduce Risk by Increasing Competence
The State Bar of California’s opinion highlights that attorneys need to assess their own ability to effectively manage e-discovery. The opinion also is a continuation in the codification of professional ethics and competency duties when it comes to knowledge of e-discovery and its technology. With the explosion of data involved in discovery, courts are becoming more cognizant of efforts by attorneys to reduce the burdens of costly e-discovery processes. Lawyers who fail to understand the nuances of e-discovery not only risk riling judges and clients, but they also risk shirking their professional duties.
Tim Bryan is a director with Crowe Horwath and can be reached at firstname.lastname@example.org. Joe Loscudo is with Crowe Horwath and can be reached at email@example.com.