After over a year of consideration and an extended comment period, the State Bar of California Standing Committee on Professional Responsibility and Conduct recently issued an Opinion regarding the ethical obligations of attorneys when dealing with eDiscovery. Recognizing that "discovery of ESI is now a frequent part of almost any litigated matter," the Committee notes that "[a]ttorney competence related to litigation generally requires, among other things, and at a minimum, a basic understanding of, and facility with, issues relating to e-discovery including the discovery of electronically stored information ("ESI")." According to the Committee, improper handling of eDiscovery issues can potentially implicate attorneys' duties of competence and confidentiality.
To ensure that they are meeting their ethical obligations with regard to eDiscovery issues, attorneys must ensure that the following tasks are completed competently:
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evaluating the likely ESI issues implicated by the matter;
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advising the client on its options for preservation and collection of ESI;
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determining key players and likely custodians of ESI;
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developing a thorough understanding of the client's electronic storage systems;
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implementing a proper preservation strategy;
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competently conducting searches;
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collecting the ESI "in a matter that preserves the integrity" of the data;
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competently engaging in meet and confer sessions with opposing counsel; and
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producing responsive ESI in an appropriate format.[1]
The opinion presents attorneys with three options for competently handling these obligations. They can either:
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"acquire sufficient learning and skill before performance is required;
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associate with or consult technical consultants or competent counsel; or
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decline the representation."
Practical Application:
Organizations can take several practical steps to ensure that eDiscovery issues are competently handled by counsel. First, consider appointing national eDiscovery counsel. In this way, a company can rest easy knowing that the merits team can truly focus on the merits. Second, consider including eDiscovery instructions in outside counsel guidelines. Finally, think about developing templates for use in litigation including ESI protocol, privilege search filter, discovery request and objection, protective order, litigation hold, and privilege log templates.
[1] The Committee emphasizes that the Opinion is not meant to "address ethical obligations relating to litigation holds," "address the scope of an attorney's duty of competence relating to an opposing party's ESI," or "define a standard of care of attorneys for liability purposes[.]"
