A lawyer’s professional responsibilties include:
- providing clients with competent representation;
- abiding by the rules of a tribunal;
- acting competently to prevent the inadvertent disclosure of a client’s otherwise confidential or privileged information;
- not assisting a client or another person unlawfully to obstruct access to evidence; and,
- not assisting a client or another person unlawfully to alter, conceal, or destroy documents and material that have potential evidentiary value.
At the YLD Thaw in Montreal, I sat on a panel that presented E-Discovery & Me: Facebook, Metadata & Beyond. Kevin Lumpkin moderated, and I was joined by Jennifer McDonald, Daniel Martin, and Matthew Preedom.
The seminar left me with a new appreciation for the “tech” issues that lawyers confront daily. It also left me incredibly impressed with the tech competence of my fellow panelists. To say I was the weak link would be an understatement.
Thus, I hesitate to write this blog. Mostly from a competence perspective, but also because the topic is so vast that I could easily go too long & too far astray. I’ll do my best to stay focused. Today’s points:
- The duty of competence applies in discovery.
- The duty of competence includes providing clients with competent advice related to preserving & producing ESI.
Note, I intentionally used “discovery” instead of “e-discovery.” I’ve heard lawyers suggest that their duties are different, perhaps less stringent, with e-discovery.
Never have we presented, and never will we present, an ethics CLE in which we stress that the duty of competence includes providing clients with competent advice on the preservation & production of paper documents. It’s a given.
It’s also a given with ESI.
In 2009, Vermont amended Rule 34(a) of the Rules of Civil Procedure. The amendment tracks the 2006 amendment to the Federal Rules of Civil Procedure. The Reporter’s Note is not confusing. The amendment:
- “is intended ‘to confirm that discovery of electronically stored information stands on equal footing with paper documents’ and to make clear that a request for ‘documents’ that does not differentiate paper documents and electronically stored information should be understood as including the latter.”
No reasonable lawyer would conclude “I don’t really need to know how to advise my client on the preservation & production of paper documents.” And, for more than a decade now, the discovery rule has been that ESI “stands on equal footing with paper documents.”
In short, ESI is discoverable, subject to the same discovery rules as information that is on paper. To produce ESI, your client must have preserved ESI.
For example: do you know whether:
- your client has ESI that might be relevant to the representation;
- the custodian(s) of that data;
- the client’s policies on data storage/destruction.
In 2015, the State Bar of California issued Formal Opinion 2015-193. The question presented: “what are an attorney’s duties in the handling of discovery of electronically stored information?”
I urge you to read the entire opinion. In my view, the most important paragraph is this one:
- “We start with the premise that ‘competent’ handling of e-discovery has many dimensions, depending upon the complexity of e-discovery in a particular case. 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. 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 and skill, or associate or consult with someone with expertise to assist.”
I appreciate the paragraph’s emphasis that lawyers need to know what they don’t know. I appreciate two other points.
First, the paragraph tells lawyers what they need to know:
“Attorneys handling e-discovery should be able to perform (either by themselves or in association with competent cocounsel or expert consultants) the following:
- initially assess e-discovery needs and issues, if any;
- implement/cause to implement appropriate ESI preservation procedures;
- analyze and understand a client’s ESI systems and storage;
- advise the client on available options for collection and preservation of ESI;
- identify custodians of potentially relevant ESI;
- engage in competent and meaningful meet and confer with opposing counsel concerning an e-discovery plan;
- perform data searches;
- collect responsive ESI in a manner that preserves the integrity of that ESI; and,
- produce responsive non-privileged ESI in a recognized and appropriate manner.”
(Aside: I’d add this: in between preservation and production, lawyers often take possession of a client’s information, whether in paper or electronic form. The duties to clients include acting competently to safeguard the information while it’s in the lawyer’s possession. With ESI, that includes competently assessing whether to store the ESI in-house or to retain a e-discovery vendor to host the ESI.)
Second, the paragraph makes it clear that it’s okay not to know how to do those things. Of course, a lawyer who doesn’t must (1) associate with someone who can competently handle those tasks, whether a lawyer or nonlawyer; or (2) withdraw from or decline the representation.
In closing, I’ve never received a disciplinary complaint alleging that a lawyer failed to provide competent representation on issues related to the preservation and production of ESI. Someday I will.
For now, keep in mind that the risk is greater than a disciplinary investigation. There’s risk to the client.
Here’s Rule 37(f) of the Vermont Rules of Civil Procedure:
- “Failure to Preserve Electronically Stored or Other Evidence. If electronically stored or other evidence that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court, upon finding prejudice to another party from the loss of the evidence, may order measures no greater than necessary to cure the prejudice.” (emphasis added).
I’ve often blogged that setting reasonable expectations early in the representation is a good way to avoid disciplinary complaints.
Another is to avoid “measures” ordered by a court against a client.