And the Academy Award for the Most Competent E-Discovery Counsel Goes To . . .

February 26, 2015 Bill Schiefelbein

After all the jokes were told, the statuettes (both Lego and real) were handed out, and the speeches were made, one image stood out above the rest from this year’s Academy Awards: John Travolta clutching the chin of “Adele Dazeem,” otherwise known as singer Idina Menzel. For the last two years, Travolta’s Oscar behavior has gone viral—and not for the right reasons.

Lawyers who ignore their e-discovery responsibilities may not be as infamous as Travolta, but they certainly have earned their share of judicial rebukes and sanctions. In fact, their shortcomings prompted the American Bar Association’s 2012 revision to comment 8 of rule 1.1, which now requires lawyers to understand the “benefits and risks associated with relevant technology” to satisfy their duty of competence.

Since then, a number of states have followed the ABA’s lead, including Arkansas, Delaware, Kansas, North Carolina, and Pennsylvania. Now, a proposed California ethics opinion—recently revised and released for a second round of public commentary that ends on April 9, 2015—has upped the ante.

Unlike other ethics rules and opinions, which echo the ABA’s language that lawyers should be aware of the “benefits and risks” of technology, Proposed Formal Opinion Interim No. 11-0004 asserts that a lawyer handling e-discovery should be able to do nine things:

  1. initially assess e-discovery needs and issues, if any;
  2. implement/cause to implement appropriate ESI preservation procedures;
  3. analyze and understand a client’s ESI systems and storage;
  4. identify custodians of relevant ESI;
  5. perform data searches;
  6. collect responsive ESI in a manner that preserves the integrity of that ESI;
  7. advise the client on available options for collection and preservation of ESI;
  8. engage in competent and meaningful meet and confer with opposing counsel concerning an e-discovery plan; and
  9. produce responsive ESI in a recognized and appropriate manner.

The opinion recommends that attorneys who lack the requisite knowledge or experience to handle these tasks should (1) obtain adequate learning and skill to perform these duties, (2) associate with competent counsel or e-discovery consultants who have the appropriate knowhow, or (3) decline the representation. The revised opinion clarifies that attorneys who choose to affiliate with outside counsel or e-discovery specialists must supervise any expert retained by “remaining regularly engaged in the expert’s work.” It also obliges attorneys to “issue appropriate instructions and guidance and, ultimately, conduct appropriate tests until satisfied that the attorney is meeting his ethical obligations prior to releasing ESI.”

Although this groundbreaking opinion will not be legally binding once it is adopted, it is likely to become the yardstick for measuring lawyers’ technological competence among the judiciary and could spur other state bars to embrace a similar stance. In the interim, lawyers should use this opinion as a checklist for assessing their competency. If they come up short in any areas, they should obtain the necessary knowledge and skills now or associate with a skilled partner who can prepare them to navigate the ethical minefield of e-discovery. The alternative is to brace themselves for the unflattering spotlight of judicial scrutiny and the drama of discovery disputes, sanctions, and potential bar charges.

About the Author

Senior Vice President, e-Discovery Consulting for Conduent. Bill can be reached at info@conduent.com.

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