State Bar of California Issues Interim Opinion on Attorneys’ Ethical Duties in the “Handling of Discovery of [ESI]” – Public Comment Invited

The State Bar of California Standing Committee on Professional Responsibility and Conduct has issued Formal Opinion Interim No. 11-0004 (ESI and Discovery Requests) for public comment.  By analyzing a hypothetical fact pattern, the interim opinion addresses the following question: “What are an attorney’s ethical duties in the handling of discovery of electronically stored information?” Public comment on the opinion is being accepted until June 24, 2014.  While this opinion will not directly affect practice outside of the State of California, it nonetheless may provide all attorneys with valuable insight into the duties of counsel in electronic discovery.  [Please Note: California has not adopted the Model Code of Professional Conduct.  Despite that, the opinion acknowledges that the authors “look[ed] to federal jurisprudence for guidance, as well as applicable Model Rules, and appl[ied] those principals [sic] based upon the California ethical rules and California’s existing discovery law outside the e-discovery setting.”]

Formal Opinion Interim No. 11-0004 begins as follows:

ISSUES:          What are an attorney’s ethical duties in the handling of discovery of electronically stored information?

DIGEST:        An attorney’s obligations under the ethical duty of competence evolve as new technologies develop and then become integrated with the practice of law. Attorney competence related to litigation generally requires, at a minimum, a basic understanding of, and facility with, issues relating to e- discovery, i.e., 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 given matter and the nature of the ESI involved. Such competency requirements may render an otherwise highly experienced attorney not competent to handle certain litigation matters involving ESI. An attorney lacking the required competence for the e-discovery issues in the case at issue 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 can also result, in certain circumstances, in ethical violations of an attorney’s duty of confidentiality, the duty of candor, and/or the ethical duty not to suppress evidence.

INTERPRETED:          Rules 3-100, 3-110, 3-210, 5-200, and 5-220 of the Rules of Professional Conduct of the State Bar of California.
Business and Professions Code section 6068

Also notable in the interim opinion is the list of tasks that attorneys should be able to perform “either by themselves or in association with competent co-counsel or expert consultants”:

Taken together generally, and under current technological standards, attorneys handling e-discovery should have the requisite level of familiarity and skill to, among other things, be able to perform (either by themselves or in association with competent co-counsel or expert consultants) the following:

  1. initially assess e-discovery needs and issues, if any;
  2. implement appropriate ESI preservation procedures, including the obligation to advise a client of the legal requirement to take actions to preserve evidence, like electronic information, potentially relevant to the issues raised in the litigation;
  3. analyze and understand a client’s ESI systems and storage;
  4. identify custodians of relevant ESI;
  5. perform appropriate searches;
  6. collect responsive ESI in a manner that preserves the integrity of that ESI;
  7. advise the client as to available options for collection and preservation of ESI;
  8. engage in competent and meaningful meet and confer with opposing counsel concerning an e-discovery plan; and
  9. produce responsive ESI in a recognized and appropriate manner.

See, e.g., Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC (S.D.N.Y. 2010) 685 F.Supp.2d 456, 462-465.

For a full copy of the interim opinion and for more information regarding how to submit a public comment, click here.

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