Electronic Discovery: Are We Competent?

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The State Bar of California has issued perhaps the country’s most straightforward and candid directive to litigators to learn the ins and outs of electronic discovery (e-discovery). In a proposed formal opinion, it states, “Not every litigated case ultimately involves e-discovery; however, in today’s technological world, almost every litigation matter potentially does.” It goes on to say that, as a matter of competency, the attorney handling e-discovery should be able to do the following nine things:

1. Assess e-discovery needs;

2. Implement appropriate preservation procedures;

3. Analyze and understand clients’ electronically stored information (ESI) systems and storage;

4. Identify custodians of relevant ESI;

5. Perform appropriate searches;

6. Collect responsive ESI in a manner that preserves its integrity;

7. Advise clients on available options for collection and preservation of ESI;

8. Engage in a “competent and meaningful” meet-and-confer to address e-discovery plan; and

9. Produce responsive ESI in an appropriate manner.

Originally published in Law.com on June 3, 2014.

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Published In: Electronic Discovery Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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