As courts have become familiar with the eDiscovery process in recent years, they have become more willing to impose standards on attorney conduct pertaining to eDiscovery. These standards represent an effort to reign in the chaos often seen in eDiscovery, taking into consideration an attorney’s obligations with respect to the court, to clients, and to opposing parties. Whereas in the past, discovery responses denying the existence of digital evidence were often accepted at face value by judges and opposing parties, now, to meet judicial eDiscovery standards, attorneys must also provide insight into data collection methodology so that the authenticity of discovery responses can be verified.
While some attorneys may find these new standards burdensome, the reality is that a new generation of tech-savvy attorneys and judges is emerging. This new generation will bring with them a greater comprehension of legal technology, and therefore greater expectations for an efficient and transparent eDiscovery process. For litigators to remain relevant, they’ll need to be sure to keep ahead of these technological developments. The most notable development of which California litigators should take note comes from formal opinion no. 2015-93, issued on June 30, 2015 by the State Bar of California Standing Committee on Professional Responsibility and Conduct (“COPRAC”), which explicitly extends an attorney’s duty of competence to cover eDiscovery, mandates that an attorney keep abreast of technological advances in the law, and prescribes a nine-factor analysis to determine whether an attorney is meeting his/her duty of competence when handling a case with eDiscovery.
The formal opinion, citing Rules of Professional conduct section 3-110(c), states that upon making the determination that a case will require eDiscovery, an attorney has three options on how to proceed. An attorney must either acquire sufficient learning and skill to become proficient in eDiscovery, associate with an expert or consultant who is proficient in eDiscovery, or reject the case. No one really wants to turn away business, so attorneys are really left with two options: learn how to perform eDiscovery functions themselves or hire and oversee a vendor. But how does an attorney know if his/her knowledge of eDiscovery is sufficient to meet his/her duty of competence? COPRAC provides the following guidelines:
Attorneys handling e-discovery should be able to perform (either by themselves or in association with competent co-counsel or expert consultants) the following:
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. advise the client on available options for collection and preservation of ESI;
5. identify custodians of potentially relevant ESI;
6. engage in competent and meaningful meet and confer with opposing counsel concerning an e-discovery plan;
7. perform data searches;
8. collect responsive ESI in a manner that preserves the integrity of that ESI; and
9. produce responsive non-privileged ESI in a recognized and appropriate manner.
While this formal opinion is not binding on the courts, courts have already begun looking to the opinion for guidance, and citing the opinion in cases dealing with eDiscovery bad actors. A recent order from a case coming out of the Federal District Court, Southern District of California, HM Electronics, Inc. v. RF Technologies, Inc., cites the formal opinion as a benchmark for evaluating defendant and defense counsel’s conduct with regard to eDiscovery, before hammering them both with substantial sanctions and a recommendation for an adverse inference instruction. The lesson from the case is that an attorney must stay actively involved in data preservation and eDiscovery, and must exercise reasonable diligence in ensuring the efficacy and legitimacy of the eDiscovery process as a whole.
Ultimately, what we must take away from formal opinion no. 2015-193, is that it’s in an attorney’s best interest to become well versed in eDiscovery and to associate with trusted eDiscovery consultants and experts. Attorneys who want to succeed in today’s competitive landscape must learn to use eDiscovery knowledge as a weapon against opposing counsel’s insufficient eDiscovery efforts, and as a shield when one’s own eDiscovery efforts are thorough and defensible. Proactive attorneys, take note.