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Litigators Who Don’t Know Enough About eDiscovery Should Be Afraid, Very Afraid

Originally published on Above the Law.

By Jeff Bennion
It seems like I can’t go to an eDiscovery CLE without someone talking about California’s Proposed Formal Opinion 11-0004. It’s probably my fault, at least in part. For those of you who only go to interesting CLEs, allow me to summarize: it’s a proposed opinion, not yet adopted by the rules committee, that gives a hypothetical about an attorney who doesn’t know anything about eDiscovery and suddenly finds himself neck deep in eDiscovery problems that have crept into his case. It suggests that litigators should have minimal competence in eDiscovery and may be violating their duty of competence if they do not either become competent or bring in someone who is competent.

A new 2015 version (and here’s the old one for comparison) of the proposed opinion has come out that has been significantly rewritten, but before I go into the changes, let’s talk about why it is important to everyone.

Why This is So Scary to Litigators

I hate family law. I hate tax law. I hate estate planning law. I choose every day to not take those cases. When people call me and ask me if I can help them get back custody of their kids, I tell them no and refer them to the county bar referral service. It’s not that I have anything against those areas of law or the people who practice in those fields, it’s just that I don’t know anything about those areas, and I don’t want to learn because they sound boring and horrible. A lot of people feel the same way about eDiscovery. To their credit, eDiscovery is mostly boring and horrible also. The difference is that eDiscovery can creep into any field of litigation. You don’t work on a products liability case and suddenly find yourself surrounded by the world of holographic wills. You don’t work up a partnership dispute case and suddenly find yourself having to prepare child custody declarations. But if your case involves parties or witnesses who text, Facebook, e-mail, or have information on computers, you can find yourself surrounded by boring and horrible questions about things like clawback agreements and native files and load files and computer forensics and preservation holds, and the like. Suddenly lawyers who still use WordPerfect are forced to be technology experts.

What Has Changed

The original version of the rule faced some pretty serious backlash, due largely to its harshness. At first glance, the Digest and the Conclusion parts of both opinions are roughly the same, save for some stylistic changes, but the Discussion is almost entirely rewritten.

Using the Compare feature of my new version of Adobe Acrobat, I was able to prepare a redline version of the two PDFs. Here are just two pages from the Discussion section (red is a deletion and blue is an insertion):

Screenshot 2015-04-13 22.00.53For comparison purposes, let’s look at how the arguments have changed.

The outline of the Discussion in the original opinion:

Attorney Duties Concerning Electronically Stored Information (“ESI”)

  1. Duty of Competence
  2. The Duty of Confidentiality Includes But Is Not Limited to Protecting The Attorney-Client Privilege
  3. The Duty of Confidentiality Includes But is Not Limited to Protecting The Attorney-Client Privilege [Yes, it is repeated]
    1. Duty Not to Suppress Evidence
    2. The Duty of Candor

The outline of the Discussion in the 2015 version:

  1. Duty of Competence
    1. Did Attorney Violate The Duty of Competence Arising From His Own Acts/Omissions?
    2. Did Attorney Violate The Duty of Competence By Failing to Supervise?
  2. Duty of Confidentiality

The hypothetical fact pattern is a little different in the 2015 version and I’m not really sure if it’s more scary or less scary. In the new version, the attorney knows the client and has represented his company before. The company has an IT department. He trusts the IT department and representations made by the client about what is and is not on the network servers and allows a third-party vendor to work with the IT department to collect the necessary data. The attorney fails to instruct the IT department about the scope of the search or the discovery issues at hand and the third-party vendor acquires more data than necessary, including confidential corporate records.

As you can see from the revised Discussion outlines, the new opinion goes into what attorneys need to do to supervise clients, IT staff, and third-party vendors.

From the new opinion:

Attorney did not instruct or supervise Client regarding the direct network search or discovery, nor did he try to pre-test the agreed upon search terms or otherwise review the data before the network search, relying on his assumption that Client’s IT department would know what to do, and on the parties’ clawback agreement.

Although there were some clear mistakes made here, it is scary because one of the reasons that attorneys outsource to IT staff and vendors is because they are the subject-matter experts and the attorney wants to defer to their judgment on those matters. This opinion reminds us that although you can defer some of the heavy lifting, the attorney is ultimately responsible for the final product. Here, this would have entailed a roundtable discussion with the client, the IT staff, and the attorney to discuss and educate each other on the manner of storage of the ESI, the search methods to be used, the potential to be overinclusive and pull in confidential documents, and the realities of the cost and time associated with a privilege review. They should have discussed things like de-NISTing, deduplication, load file creation, archiving, backups, etc.

One of the crucial mistakes that the attorney made was to not review the documents for privilege after they had been pulled from the client network. He just assumed, based on what the client had told him, what would or would not be there.

In both the old and the new opinions, the attorney gets a nasty letter from opposing counsel complaining that evidence was not preserved and was subject to automatic deletion per company policies, despite a legal hold that should have been in place. It turns out opposing counsel was right, but the attorney did not know about or did not know how to comply with his duty to preserve electronic evidence.

Core Lessons

The attorney is still being faulted for things that could have been prevented by a rudimentary understanding of eDiscovery. If the attorney knew even a little bit about the file structure of the network or the client’s auto-deletion policies, he could have avoided the problems that suddenly arose in his case. He might have been more confident in telling the IT staff how to avoid IT mistakes and properly supervised the production. That’s still kind of a high bar for most lawyers. Although this is still just a proposed opinion, it’s no less of a warning sign for those of you who have no idea what de-NISTing is.


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