The role of electronically stored information (“ESI”) and new technologies has grown tremendously in recent years. This growth has a direct impact on discovery specifically, and the practice of law, generally. And so, the new practical reality is that attorneys need to be technologically literate and competent. This should come as no surprise to those who read my blog. Earlier posts discuss the ABA’s implementation of Model Rule 1.1. – which establishes a lawyer’s general duty of competence, including the benefits and risks associated with relevant technology – and others discuss other states’ explicit technology CLE requirement.
While New York does not have any technology CLE requirement (yet), it has adopted a technology competence for lawyers (along with 27 other states). What exactly must a lawyer do to fulfill his/her duty of technology competence for e-discovery? Regrettably, there is no easy answer, but a 2015 ethics opinion from California provides a very useful roadmap and identifies nine core requirements necessary to fulfill one’s duty. Today’s blog will discuss one of those core requirements, with subsequent blogs to address the others.
- Assess E-Discovery Needs and Issues:
This first requirement mandates that an attorney take a long-view of the matter he or she is dealing with (sometimes in consultation with an ESI vendor) and identify e-discovery needs and issues. Topics to consider include identifying the custodians (i.e., sources of potentially responsive ESI) and identifying any time-sensitive sources, any employee status changes, and/or IT upgrades. Also give thought to whether third-parties within your effective control have potentially responsive information. Think about privilege concerns and the import of a claw back agreement. The ultimate goal of this early phase is to spend time thinking about needs and issues that might arise over the life cycle of the matter. Obviously, not every issue can be anticipated but you may be surprised how many can be assessed and addressed early in the discovery process.