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October 31, 2015
New State Bar Opinion Requiring Attorney Competence for E-Discovery.

The cost of litigation may have just increased dramatically in cases involving ESI.

The State Bar Standing Committee on Professional Responsibility and Conduct issued Opinion 2015-193 on September 11, 2015. This opinion evolved out of a corporate attorney relying on a “clawback agreement” – an agreement to recover any non-responsive, confidential information obtained via e-discovery – to protect his client’s trade secrets after the fact, rather than ensuring the trade secrets weren’t protected from e-discovery prior to being divulged.

The State Bar Opinion holds that:

1. Competent handling of e-discovery matters requires an attorney to do the following:

A.  Assess e-discovery needs and issues at the commencement of a case;

B.  Implement appropriate ESI (electronically stored information) preservation procedures;

C. Understand and analyze his client’s ESI systems and storage;

D. Advise client regarding available collection and preservation options;

E. Identify all custodians of potentially relevant ESI;

F.  Have competent and meaningful meet-and-confer sessions with opposing counsel regarding an appropriate e-discovery plan;

G.  Perform data searches (Yes – the attorney is to perform data searches him-or herself.);

H.  Collect responsive ESI in a manner that preserves its integrity without engaging in spoliation;

I.  Produce responsive non-privileged ESI in a recognized and appropriate manner.

This corporate attorney may have violated his duty of competence by failing to supervise his client’s information technology department, instruct them on litigation discovery requirements, or retain a trained IT person to assist the client in complying with the e-discovery order.

The State Bar Opinion concluded that a lack of technical knowledge in handling e-discovery may mean an attorney is technically incompetent to handle litigation matters involving e-discovery.

We cannot ignore the requirements and obligations of e-discovery. This case in particular prohibits us from relying on our clients to produce all responsive electronically stored information in their possession and control in a paper format.  One of the great issues in this case is spoliation of evidence; what the client didn’t want to produce, the client made a regular practice of deleting.  Evidence of deletions was recovered by opposing counsel’s e-discovery expert.

I strongly encourage all family law attorneys in particular to consider revising their estimates of precisely what our duties are, and are not, with regard to e-discovery and our clients’ electronically stored information.

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