Published with approval from the Washington, D.C. Bar Litigation Section, and written by Hire Counsel Executive Managing Director Kevin Clark, the following article highlights the impact of competence in the conduct of electronic discovery.
Attorney Competency in E-Discovery (DC Bar Litigation Section Quarterly Update, Winter 2015-2016)
A lack of competency in e-discovery can pose ethical and financial pitfalls. Quickly locating sources of information, determining whether the information is relevant, reviewing it for confidentiality and privilege, and finally producing copies of relevant non-privileged information for the opposing party is the meat of the discovery process. It is a complicated, technical, and costly process. Poor or unethical practices can lead to serious financial and professional consequences, as an attorney in Virginia discovered. The attorney was fined $522,000 for instructing a client to remove photos from a social media account instead of initiating the proper e-discovery process. The fine was so devastating that the attorney no longer practices law.
The above example illustrates the potential consequences for individual attorneys who make decisions without proper training in, or understanding of, the e-discovery requirements and ethical obligations. The American Bar Association and the State Bar of California recently took steps to underscore and clarify these requirements and obligations.
New Model Rules
The American Bar Association (“ABA”) recently amended its Model Rules of Professional Conduct—which serve as a guide for the ethical rules governing attorneys in most states—to address changes in technology affecting ediscovery. In August 2012, the ABA amended Model ABA Rule 1.1 Comment 8 to require that attorneys “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” This means that attorneys must keep up to date with how electronic information is identified, collected, and stored for discovery purposes.
New Guidelines in California Set an Example
The State Bar of California (“CA State Bar”) created waves in the legal community when it issued a proposed formal opinion outlining an attorney’s ethical obligations during the e -discovery process. This opinion, currently open for public comment, is one of the first that clearly defines why litigators must be familiar with e-discovery and how they should handle that process.
In its opinion, the CA State Bar argues that attorneys are professionally and ethically obligated to understand major factors that are likely to affect the practice of law, including the discovery process. While not all cases involve e-discovery, it is highly likely that all attorneys will encounter some cases that require e-discovery. Therefore, according to the opinion, all attorneys are obligated to have an understanding of, and proficiency in, the use of available technology capable of filtering, storing, and producing electronically-stored information (“ESI”). Along with this required proficiency comes an obligation to understand the nature of ESI, how it is used and stored by clients, and the risks inherent in producing ESI through the discovery process.
Nine Essential E-Discovery Skills
To clarify its opinion, the CA State Bar noted that all attorneys should be able to complete these nine key tasks related to successful e-discovery:
- Assess initial e-discovery needs and any issues that might arise during the process.
- Adopt strong ESI preservation procedures by making a plan to preserve evidence and by alerting clients to their obligation to maintain all electronic documents relevant to the case.
- Demonstrate an understanding of client ESI systems and how clients handle electronic information.
- Identify and interact with key custodians of electronic information.
- Perform relevant searches of a client’s ESI.
- Collect ESI in a way that does not call the integrity of the ESI into question.
- Identify options for ESI collection and discovery and advise clients regarding available options.
- Work cooperatively and competently with opposing counsel to craft an e-discovery plan.
- Present the appropriate ESI in a manner consistent with the rules of court and the e-discovery plan.
Benefits of E-Discovery Expertise
These recent steps by the ABA and the CA State Bar make good sense. Lawyers should be prepared to take an active and informed role in the e-discovery process.
These lawyers can often save client resources by partnering with e-discovery professionals and using software tools to help expedite the e-discovery process. At the same time, lawyers must remain actively involved in the process to ensure that their discovery obligations are met and their client’s interests are protected. For example, while tools to automate review of ESI are available, they are not perfect and may not, without attorney input, be able to determine whether a particular document is protected by privilege or the work product protection.
Those lawyers who have competence in e-discovery also understand how to use clawback agreements to their advantage. Originally introduced in 2006 under Rule 26 of the Federal Rules of Civil Procedure, clawback agreements permit parties to retract privileged information following its discovery. Furthermore, under new Rule 502 of the Federal Rules of Evidence, clawback agreements prevent the opposing party from using in court privileged documents that were inadvertently produced.
Consequences for Lawyers Who Don’t Understand E-Discovery
Attorneys lacking experience or sufficient competence in e-discovery—or who are reluctant to learn more about ESI—expose themselves and their clients to serious personal and legal risks. For example, courts have ordered fines in the millions of dollars for business that withhold or improperly destroy ESI. Individual clients also can face significant penalties. The client of the Virginia attorney addressed above was ordered to pay $180,000 for following the attorney’s bad advice.
These sanctions can put a serious damper on, and can even end any attorney’s career. Lawyers stand to develop a poor reputation among clients if they are not able to handle electronic documents in a professional, proactive fashion. Being willing and able to keep up with technological changes that have affected the practice of law is essential to long-term success.
Kevin M. Clark is the on Steering Committee of the Litigation Section at the D.C. Bar; he is also Executive Managing Director at Hire Counsel.