ESI Bytes: Nine Things Every Attorney Should Know to Be Competent in eDiscovery

By Scott Collins, Proteus Discovery Group, LLC

ESI Bytes is a series produced by the IndyBar’s newest section, the E-Discovery, Information Governance & Cybersecurity Section. Want to learn even more from the section? Get additional resources and information at indybar.org/edata, and join the group at indybar.org/myprofile!

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, cellphones, and tablets, it can be difficult to stay abreast of the myriad of tech and e-discovery issues we encounter in our daily practices.

Fortunately for many attorneys, e-discovery expertise isn’t a prerequisite to obtaining and keeping their license to practice. 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. 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…”

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 e-discovery sanctions (including heavy fines and adverse inference instructions) to attorneys who are not meeting minimum competency obligations. Technology-averse attorneys risk being disciplined and debarred, and the danger of a malpractice claim also looms large.

Counsel’s need for e-discovery competence has been a particularly hot topic in California, starting with Formal Opinion No. 2015-193 of the Standing Committee on Professional Responsibility and Conduct of the California State Bar (“Committee Opinion”) and continuing in the case of HM Electronics, Inc. v. R.F. Technologies, Inc. (S.D. Cal. 2015) 2015 WL 4714908 (“HM Electronics”). The Committee Opinion covers topics including the duties of competence, confidentiality and supervision and is particularly notable for defining an attorney’s e-discovery 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 Committee Opinion lists nine e-discovery 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 meeting 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.

There are three options for an attorney lacking the required ESI competence: 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 e-discovery misconduct and incompetence. In HM Electronics, Judge Dembin identified a number of breakdowns in the e-discovery 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 counsel “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 be wakeup calls not only to the ranks of attorneys who are willfully ignoring the ascent of modern Electronic Discovery in our courts, but to all the attorneys and law firms who have not yet grasped the benefits and risks of this technology to their clientele. With the rapid pace in which technology continues to change the legal profession, it’s no wonder that attorneys often feel overwhelmed by their professional and ethical obligations. If you aren’t yet proficient in your understanding of e-discovery, use the myriad of resources available to get you up to speed. Consult an ESI vendor. Read your state’s ethics opinions. Attend an e-discovery CLE. Competence in e-discovery is already important to your clients, bosses, judges and disciplinary committees. It should be important to you, too.•

Scott Collins is a project manager for Proteus Discovery Group, LLC. Proteus is an e-discovery and information management company focused on helping companies and law firms prepare, preserve, parse and produce electronic data for purposes of litigation, investigations, M&A and general information governance. The opinions expressed are those of the author.