Why Ignorant Bliss Is Not An eDiscovery Strategy
The Digital eDiscovery Divide and You.
We all know a partner, mentor, colleague, or adversary who brashly denounces all-things-tech while clinging tightly to a bygone era of wired telephones and paper documents. The kind of legal professional who breathes life into the old cliché about attorneys attending law school to avoid math and science. We get it. Keeping up with technology in the digital age can be downright daunting. Even for those of us who are comfortable navigating our laptops, cell phones, and tablets, it can be difficult to stay abreast of the myriad of tech and eDiscovery issues we encounter in our daily practices.
Fortunately for many attorneys, eDiscovery expertise isn’t a prerequisite to obtaining and keeping their license to practice law. But attorneys do have a duty to be competent regarding technology under several state and ABA ethics rules as well as the recently amended Federal Rules of Civil Procedure. ABA Model Rule of Professional Conduct 1.1 has long acknowledged counsel’s obligation to provide competent client representation. But you may not know that the amended 2012 comments to the Rule stipulate that lawyers “should keep abreast of changes in the law and practice, including the benefits and risks associated with relevant technology…” [my emphasis]
Looming Electronic Discovery Dangers
If you think this directive is merely aspirational, you may be surprised. Both the spoliation of Electronically Stored Information (“ESI”) and the failure to produce it have begun to generate a vast amount of case law. Increasingly, judges are handing out a range of eDiscovery sanctions (including heavy fines and adverse inference instructions) to attorneys who are not meeting minimum competency obligations. Besides the looming danger of a malpractice claim, technology-averse attorneys risk being disciplined, even debarred.
Counsel’s need for eDiscovery competency has been a particularly hot topic in California, starting with Formal Opinion No. 2015-193 by the Standing Committee on Professional Responsibility and Conduct of the California State Bar (“Committee Opinion”), and continuing with the HM Electronics, Inc. v. R.F. Technologies, Inc. (S.D. Cal. 2015) 2015 WL 4714908 (“HM Electronics”) case. The Committee Opinion covers topics including the duties of competency, confidentiality, and supervision and is particularly notable for defining an attorney’s eDiscovery competency obligations in greater detail. The Committee opined that “[d]epending 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.”
The ESI 9 Rules
The Committee Opinion lists nine eDiscovery tasks counsel “should be able to perform (either by themselves or in association with competent co-counsel or expert consultants)”:
- initially assess e-discovery needs and issues, if any;
- implement/cause to implement appropriate ESI preservation procedures;
- analyze and understand a client’s ESI systems and storage;
- advise the client on available options for collection and preservation of ESI;
- identify custodians of potentially relevant ESI;
- engage in competent and meaningful meet and confer with opposing counsel concerning an e-discovery plan;
- perform data searches;
- collect responsive ESI in a manner that preserves the integrity of that ESI; and
- produce responsive non-privileged ESI in a recognized and appropriate manner.
Attorneys lacking the required ESI competency have three options: acquire sufficient skills, associate with consultants or competent counsel, or decline the representation.
On the heels of the Committee Opinion, Magistrate Judge Mitchell Dembin of the Southern District of California presided over a case brimming with eDiscovery misconduct and incompetence. In HM Electronics, Inc. v. R.F. Technologies, Inc. (S.D. Cal. 2015) 2015 WL 4714908 (“HM Electronics”), Judge Dembin identified a number of breakdowns in the eDiscovery process including defense counsel’s certification of discovery responses that were proven false or misleading, failure to implement a litigation hold, failure to supervise their ESI vendor in the search and review process, and failure to produce over 375,000 documents until after the close of discovery due to failure to implement quality control measures.
One conversation between the parties’ attorneys was particularly enlightening:
HERRERA: Did your client conduct an ESI search for communication[s]?
O’LEARY: Everything has been produced.
HERRERA: Well, that’s not really my question.
O’LEARY: That’s my response, though. We produced everything when we did that by checking computers.
HERRERA: I’d like to understand the methodology you did conduct.
O’LEARY: I didn’t conduct the ESI search, so I don’t know the methodology. They were told to look for documents on their computer. They did so and we produced them. . . [T]hey obviously conducted the search and produced what they had.
Noting that defense counsels “did not, and still do not, comprehend that it is their duty to become actively engaged in the discovery process, to be knowledgeable about the source and extent of ESI, and to ensure that all gathered data is accounted for,” Judge Dembin awarded plaintiff the equivalent of two years of attorneys’ fees for discovery disputes, an adverse inference jury instruction, and an issue sanction.
The Committee Opinion and HM Electronics should provide wakeup calls not only to the ranks of attorneys who are willfully ignoring the ascent of modern Electronic Discovery in our courts, but also to those who simply fail to grasp the risks and benefits associated with this technology. With the rapid pace in which technology continues to change the legal profession, it’s no wonder attorneys often feel overwhelmed by their professional and ethical obligations.
Get Up To Speed On eDiscovery
If you aren’t yet proficient in your understanding of eDiscovery, here are a few suggested next steps:
- Use the myriad of resources available to get you up to speed.
- Consult an ESI vendor.
- Read your state’s ethics opinions.
- Attend an eDiscovery CLE.
Competency in eDiscovery is already important to your clients, bosses, judges, and disciplinary committees. It should be important to you, too.