Competence & ESI: Consider a Protocol

I’ve not said it in a while:  competence includes tech competence.

Almost 18 months ago, I posted Competence, ESI, and E-Discovery.  In it, I posed a question on the duty of competence that I often ask at CLEs:

  • To me, the duty includes:
    • knowing 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?

As many regular readers know, “it” is ESI, electronically stored information.

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 first sentence of the digest:

  • “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’).”

Four years later, I sense that the issue continues to worry some lawyers.  It should.  Our world is replete with ESI.  As such, and to the extent that the outcome of client matters turns on “information,” ESI can be incredibly important to clients and their matters.  Especially litigation matters.

Tonight, browsing through Above The Law before I divide my focus between the Red Sox and the Sweet 16, I came across 5 Advantages of Having An ESI Protocol For Your Matter.  It’s by Kelly Twigger and includes some great tips.  I suggest giving it read.  To me, the subtitle says it all:

“The exercise of thinking through everything that will be needed for your case in discovery is invaluable.”

That’s competence.

Image result for esi discovery