Originally published by California Bar Journal.
By Amy Yarbrough
Attorneys not sure how to respond to e-discovery issues should either read up, work with an expert or decline to take the case to avoid possible misconduct, according to a recent ethics opinion.
In an advisory opinion issued June 26, the State Bar’s Standing Committee on Professional Responsibility and Conduct (COPRAC) warns that even if an attorney’s intentions are good, they risk violating the duty of confidentiality if they aren’t up to speed.
“The ethical duty of competence requires an attorney to assess at the outset of each case what electronic discovery issues might arise during the litigation, including the likelihood that e-discovery will or should be sought by either side,” the advisory opinion states. “If e-discovery will probably be sought, the duty of competence requires an attorney to assess his or her own e-discovery skills and resources as part of the attorney’s duty to provide the client with competent representation. If an attorney lacks such skills and/or resources, the attorney must try to acquire sufficient learning or skill, or associate or consult with someone with expertise to assist.”
The opinion cites a hypothetical situation in which an attorney assumes his client, a large company with an information technology department, understands network searches better than he does, figures they have turned over all the information requested by opposing counsel and takes no further steps to guide them other than telling them to provide a vendor access to their server on a certain date. After a search is run using search terms agreed to by both sides, opposing counsel accuses him of destroying or withholding evidence and threatens sanctions.
The attorney later hires an e-discovery expert who assesses the situation and tells him that potentially responsive evidence had been deleted from the client’s computers as part of the client’s normal document retention policy. The expert also tells the attorney that due to the breadth of the search terms he agreed to, both privileged information and irrelevant but highly proprietary information about a groundbreaking product that’s about to be debuted has been released to a competitor.
Rather than proceed based on assumptions, attorneys ought to be able to by themselves, or with the help of an expert, assess e-discovery needs and issues, put procedures in place to preserve the electronically stored information, understand the client’s systems and storage and be able to figure out who possesses the potentially relevant information, the opinion states. In addition, they should advise the client on options for collecting and preserving the information. Whomever they are working with should be capable of having a meaningful discussion with opposing counsel concerning an e-discovery plan, performing data searches and collecting electronically stored information in a way that preserves its integrity and produces nonprivileged information in a “recognized and appropriate manner.”
The opinion also notes that while e-discovery is relatively new to the profession, the requirement that attorneys competently represent their clients is not.
“Electronic document creation and/or storage, and electronic communications, have become commonplace in modern life, and discovery of ESI is now a frequent part of almost every litigated matter,” it reads. “Attorneys who handle litigation may not ignore the requirements and obligations of e-discovery.”
COPRAC’s ethics opinions are not binding, but are often cited and given great weight in discipline decisions by the State Bar Court and the California Supreme Court.