California, Document Review, Legal Ethics, Technology

Is It Ethical To Not Understand How E-Discovery Works? CA State Bar Does Not Think So

"Woe unto you who fails to understand the importance of metadata."

By  
on

Attorneys can pretty much be broken down into two categories — those who have experience with doc review, and those who have been lucky enough to avoid it. But, there will be a point in the not too distant future when the latter group will become the ultra minority. I have been preaching for years now to attorneys: “Woe unto you who fails to understand the importance of metadata.” When I am consulting with attorneys on tech issues, be it trial technology related, practice management related, or e-discovery related, I always get a large portion of attorneys who tell me (usually with their eyes), “Look, son, I haven’t needed this is the past, I don’t need it now, and I’ll never need it. Change is bad.”

Finally, I have some authority to back me up….

Not Every Case Involves E-Discovery, but Almost Every Case Potentially Does

California recently released an ethics opinion that addresses whether litigators have a duty to know how e-discovery works. Spoiler alert: They do.

UPDATE (8/29/2014, 5:30 p.m.): The opinion in question is a proposed opinion that was only released for a 90-day public comment period. It has not yet been officially adopted. (Thanks to Perry Segal of e-Discovery Insights for the clarification.)

From the opinion:

Sponsored

Attorney competence related to litigation generally requires, at a minimum, a basic understanding of, and facility with, issues relating to e-discovery, i.e., the discovery of electronically stored information (“ESI”)… Such competency requirements may render an otherwise highly experienced attorney not competent to handle certain litigation matters involving ESI.

Attorneys who handle litigation may not simply ignore the potential impact of evidentiary information existing in electronic form. Depending on the factual circumstances, a lack of technological knowledge in handling e-discovery may render an attorney ethically incompetent to handle certain litigation matters involving e-discovery, absent curative assistance under rule 3-110(C), even where the attorney may otherwise be highly experienced.

Note how broad that is. Not, “Every mass torts litigator…” or “Every lawyer who handles e-discovery on a regular basis.” The Committee said, “Attorneys who handle litigation” and cases “related to litigation.” The Committee went on to further explain that this is because more and more basic litigation cases are involving e-discovery:

Not every litigated case ultimately involves e-discovery; however, in today’s technological world, almost every litigation matter potentially does. The chances are significant that a party or a witness in the matter has used email or other electronic communications, stores information digitally, and/or has other forms of ESI related to the dispute.

Electronic document creation and/or storage and electronic communications have become standard practice in modern life.

So, the duty to learn e-discovery is not just for cases that involve it, but for cases that potentially involve it, which is almost every case. That’s how it can sneak up on you. If someone calls me and asks me to help them with their patent, or help them with their child custody case, I know immediately that this is not my area of expertise. But, for attorneys who deal with any type of litigation can find themselves in a position where they are no longer competent to represent a client because e-discovery issues have popped up.

The Back Story – How Not Knowing E-Discovery Provisions on the Fly Can Be an Ethical Problem

Sponsored

Here’s where it gets a little scarier. In this opinion, one side requests e-discovery and opposing counsel refuses. The judge (technically, according to the opinion, it’s an “annoyed judge”) gives the attorneys 2 HOURS to create a joint e-discovery plan. Giving an attorney who does not understand e-discovery, 2 hours to come up with an e-discovery plan turned out predictably bad — the terms were not clear and resulted in misunderstandings and the production of confidential information and a bunch of people now reading about your ethical shortcomings.

Are you capable of coming up with an e-discovery plan in 2 hours? Do you understand how clawback agreements work? Do you understand time frames for production? Do you understand litigation hold letters? What are your clients’ auto delete policies?

If not, you better start googling.

Ed. note: This column has been brought to you by our friends at MyCase, web-based practice management software for lawyers. Click here to learn more about MyCase and their happy customers.

Please note that the views expressed in the column are those of the writer alone.

Jeff Bennion is a solo practitioner from San Diego. When not handling his own cases, he’s consulting lawyers on how to use technology to not be boring in trial or managing e-discovery projects in mass torts/complex litigation cases. If you want to be disappointed in a lack of posts, you can follow him on twitter or on Facebook. If you have any ideas of things you want him to cover, email Jeff at [email protected].

Topics

, , , , ,