Competence, ESI, and E-Discovery

I’ll say it again: Rule 1.1’s duty of competence includes tech competence.

To me, the duty includes:

  • knowing that that “it” exists,
  • knowing that clients, their adversaries, and witnesses have “it;” and,
  • knowing how to protect, preserve, produce, request, review, and use “it.”

What is “it?”

It is Electronically Stored Information (“ESI”).  Nearly every lawyer who has a client, has a client whose lawyer needs to know about ESI.  Indeed, I can’t think of a practice area in which a lawyer need not know about ESI.

  • Whether civil, criminal, probate, or family court, with so many of us so active on social media, ESI is a treasure trove of evidence.  Wondering how to admit a text, tweet, or social media post into evidence?  Check out the Evidence in Practice seminar at next week’s Annual Meeting of the Vermont Bar Association.
  • Wondering about your duties if a client asks about “scrubbing” or “taking down” social media posts?  The Pennsylvania Bar has issued some guidance.
  • For those of you practicing in the Vermont Superior Court’s Civil & Family Divisions, VRCP 26(a) lists the methods by which a party may obtain discovery.  Among them: a Rule 34 request to produce ESI.  Rule 26(b)(2)(A) imposes specific limitations on the discovery of ESI.  The federal rules of civil procedure have similar provisions.
  • Doing any estate work? There’s a new  Vermont law on digital assets.
  • Those of you who are in-house or general counsel . . . do you have some idea as to what ESI your client has, where it’s stored, and how long it’s kept? Have you talked to your client about its policy on employees using personal devices to access company data? Today, Above The Law posted some practical tips on preservation letters, including tips related to preserving & producing ESI.

I could go on & on. It is everwhere.

In 2015, the State Bar of California’s Standing Committee on Professional Responsibility and Conduct issued Formal Opinion 2015-193.  The opinion responds to the question “[w]hat are an attorney’s ethical duties in the handling of discovery of electronically stored information?”  Here’s the digest:

  • “An attorney’s obligations under the ethical duty of competence evolve as new
    technologies develop and become integrated with the practice of law. Attorney
    competence related to litigation generally requires, among other things, and at a
    minimum, a basic understanding of, and facility with, issues relating to e-discovery,
    including the discovery of electronically stored information (“ESI”). On a case-by-case basis, the duty of competence may require a higher level of technical knowledge and ability, depending on the e-discovery issues involved in a matter, and the nature of the ESI. Competency may require even a highly experienced attorney to seek assistance in some litigation matters involving ESI. An attorney lacking the required competence for e-discovery issues has three options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation. Lack of competence in e-discovery issues also may lead to an ethical violation of an attorney’s duty of confidentiality.”

Give the full opinion a read.

I assume most lawyers understand this, but here’s the critical point I want to make:  ESI is something that can be preserved, produced, and used.  Not knowing how to handle the discovery of ESI is no different from not knowing how to handle the discovery of paper documents.


If you’re new to ESI, here’s a primer that the ABA issued several years ago.  It’s a good start, but only a start.

E Discovery



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