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eDiscovery and the Lawyer's Duty of Competence

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Wednesday, December 28, 2011

eDiscovery and the Lawyer's Duty of Competence

The level of eDiscovery knowledge and experience among attorneys is widely varied. Some understand the issues in-depth, others have a passing knowledge of the basics, and other do not have even a beginner’s comprehension of the issues. Those who fail to acquire a working understanding eDiscovery issues are doing a great disservice to their clients; they may even be committing malpractice.

I often preach that there were two obligations highlighted in the 2006 amendments to the Federal Rules of Civil Procedure. First, is the duty to disclose ESI when required. As is widely known, when litigation is reasonably foreseeable a party must prevent the destruction of all ESI that may be discoverable. When requested in discovery, this ESI must be disclosed. This a generally accepted principle. The second obligation, and in my view equally as important, is to obtain ESI in discovery from opposing parties and nonparties. Without a good understanding of eDiscovery issues, lawyers are not prepared to meet either of these obligations.

The need to have a thorough understanding of eDiscovery issues arises out of the attorney’s obligation to the client. Each lawyer owes a duty of competence to the client. The American Bar Association’s Model 1.1 of the Rule of Professional Conduct reads:

Rule 1.1 Competence
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation

Comment 6 to ABA Model Rule 1.1 states: “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”

ESI has the potential to play a role in nearly every case and thus all lawyers must be competent in eDiscovery. Even the business lawyer who does not litigate cases must prepare his client for eDiscovery. Both in-house and outside counsel have been sanctioned for failure to preserve and disclose ESI. Each case must be evaluated to determine the extent of the role eDiscovery will play.

The abundance of ESI, from email to Facebook, copy machines to cell phones, is so overwhelming that it is very rare when a case does not require an understanding of eDiscovery issues. Some lawyers may believe that eDiscovery issues do not permeate their practice or the kinds of cases they handle. They may believe that eDiscovery only applies when large parties do battle and have the resources necessary to hire experts to do ESI searches and to pay teams of lawyers to pour over the results for large volumes of records that are generated by these searches. This is not true.

eDiscovery is important in almost every case. The divorce lawyer will want the email, Facebook, Twitter and other ESI of the soon-to-be ex-spouse. The bankruptcy lawyer representing creditors may want to search for evidence of other assets. A criminal defense attorney will want to look for impeachment evidence. The treasure trove of information contained in ESI needs to be considered by every litigator.

Some lawyers may avoid eDiscovery issues because they fear it cost-prohibitive for their clients. eDiscovery does not have to cost the clients hundreds of thousands of dollars. Depending on what is needed in the case, less costly options are available. After a thorough analysis of the case, the lawyer can provide options to the client depending upon what the client can afford. Ultimately, this the cost of eDiscovery is the client’s decision, but only the lawyer who is thoroughly versed in eDiscovery will be able to explain the options, the impact each option will have on the case, and how the costs compare with the likely benefits.

I urge lawyers to grow in their knowledge of eDiscovery issues, to become inquisitive as to how it can be integral in the cases they handle, and to use this knowledge to be zealous advocates for their clients. There are many organizations that can help walk attorneys through these issues, but regardless, it is each lawyer’s ethical obligation to competently represent her client.

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At January 2, 2012 at 3:51 PM , Blogger -Coder said...

This is a great post. Over the last few years, I have seen more lawyers getting involved with the day-to-day eDiscovery issues. While writing a processing and review platform a while back, I had paralegals and lawyers as beta testers. What I found was that lawyers, for the most part, didn’t like to take the time to learn new tools. As a result, one of my core requirements was to make the user interface very intuitive to allow the users quick access to the data and not get bogged down with learning. The need for eDiscovery is only getting bigger and the cases more complex. Great post!


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