Technology can be a curse or a comfort for lawyers.

It promises to make you more efficient, but who has the time to learn it all? (And doesn’t that take away from the sacred billable hour?) Integrating the right tools for calendars, communication, invoicing, document management, and ediscovery is absolutely vital to a healthy and viable law practice. So why do lawyers remain so reluctant about technology?

Being “competent” in technology doesn’t mean you have to go back to school and get a degree in computer network administration. It simply requires you to be confident and comfortable with the tools necessary to run a successful, contemporary law practice. It requires you to be familiar with the best practices to protect client confidential information (Model Rule 1.6), and if you’re a litigator, you must be knowledgeable about the processes, workflows, and tools for electronic discovery.

“Ignorance Is No Excuse!”

Just like “ignorance of the law is no excuse,” claiming ignorance or unfamiliarity with technology is no longer an excuse to avoid your obligation to be knowledgeable about computers and software. You cannot get off the hook by stating that you are not “tech savvy” or “computer literate.”

Ten years ago, the ABA formally recognized that “a lawyer should remain aware of technology … as part of a lawyer’s general ethical duty to remain competent in a digital age.” Model Rule 1.1 has always required a lawyer to “keep abreast of changes in the law and its practice,” but in 2012 the ABA added language to Comment 8 of Rule 1.1 to emphasize that “a lawyer’s general ethical duty to remain competent in a digital age” includes “understanding relevant technology’s benefits and risks.” This is because “technology is such an integral – and yet at times invisible – aspect of contemporary law practice.”

While that is admittedly a “model” rule, a total of 39 states (as of May 2022) have adopted the same language into their own Rules of Professional Conduct.

“I Have to Confess to this Court, I’m Not Computer Literate”

After a woeful series of discovery misconducts, defense counsel in James v. National Financial, LLC stated, “I have to confess to this Court, I am not computer literate. I have not found presence in the cybernetic revolution. I need a secretary to help me turn on the computer.”

The Court replied that “professed technological incompetence is not an excuse for discovery misconduct,” citing the amendments to Comment 8 of Rule 1.1 in Delaware and Pennsylvania.

The Court continued with some guidance: “deliberate ignorance of technology is inexcusable … [I]f a lawyer cannot master the technology suitable for that lawyer’s practice, the lawyer should either hire tech-savvy lawyers tasked with responsibility to keep current, or hire an outside technology consultant who understands the practice of law and associated ethical concerns.”

“Amateur Hour” No Longer Allowed for Ediscovery

In January 2021, Judge Iain D. Johnson of the Northern District of Illinois issued a scathing 256-page sanctions order in DR Distributors, LLC v. 21 Century Smoking, Inc. that has been characterized as a veritable “Ediscovery 101 Course” for lawyers.

After a brutal and detailed description of numerous failures on defense counsel’s part to competently oversee the collection, preservation, review, and production of critical and relevant emails from their client’s email accounts, the defense counsel “confessed” his ignorance: “I just don’t have the technical background necessary to make the technical distinction that escaped us here.” Another lawyer for the defense team attempted to assert that “because this is a trademark case, ESI was unimportant.”

But the judge had little patience after narrating a litany of discovery bumblings and finger-pointing, declaring: “It is no longer amateur hour. It is way too late in the day for lawyers to expect to catch a break on ediscovery compliance because it is technically complex and resource-demanding.”

The Court further explained that if attorneys are not competent in the phases of ediscovery, including the identification, preservation, collection, processing, review, and production of relevant electronically stored information (ESI), “they have an ethical duty to become competent, associate themselves with attorneys who are, or to decline the representation.” These three options are reflected in Ethics Opinion No. 2015-193 from California.

The Court explained that the sanctions on defense counsel were “designed to deter the type of misconduct found in this order,” noting that attorneys’ fees and costs will “likely exceed seven figures” and imposed the monetary sanctions on “both Defendants and the former defense counsel.”

Technology Competence in Ediscovery Document Review

What does technology competence look like in ediscovery? Fortunately, it doesn’t require you to be an expert in technology.

In fact, Judge Johnson in the DR Distributor Order emphasized several times that “the Court does not and cannot require perfection” but recognized that the Federal and State Rules of Civil Procedure “require reasonableness and good faith by the parties and counsel that appear before it.” That means you must have a working knowledge of how to collect potentially relevant ESI while properly preserving it, and know how to inform and monitor the collection efforts (e.g. litigation hold notice).

When it comes time to review and produce those collected documents, files, and data, here are some competency points to keep in mind:

• Document review accounts for at least 73% of the total costs of ediscovery, but learning how to properly use technology tools like Nextpoint to sort, filter, search, and produce data can reduce those costs.
• Make sure you are utilizing a document review database that is secure, accessible, and provides you with the confidence that no files can be modified or edited (e.g. spoliation).
• Ensure you know the proper and acceptable methods to redact sensitive or privileged information (it’s not as easy as it sounds!) that a document review platform can provide.
• Ensure that you know how to properly utilize the “coding” and “tagging” functions in a document review platform so you can accurately identify documents that are relevant, responsive, and/or privileged.
• Lastly, ensure your document review platform is capable of generating production sets in the “form or forms” in which the other side requests, or that is agreed upon through an ESI Protocol.

Being “competent” in the technology used by lawyers doesn’t mean you need to be an expert, but it does require you to choose the right tools to get the job done efficiently. With comprehensive, user-friendly ediscovery software, you’ll be able to collect, process, and review documents for production with ease.

But if you try to skate by with the bare minimum of technical tools, you might find yourself in the middle of a discovery mess, unable to meet your jurisdiction’s technology competence requirements.