Electronic Discovery: Are We Competent?


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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