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Luddites Beware
Your Ethical Duty to be Competent in Technology and E-Discovery
Review the legal groundwork for the ethical duty of technological competence.
Maintaining Competence
ABA Model Rule 1.1, Comment 8
“To maintain the requisite knowledge and skill, a
lawyer should keep abreast of changes in the law
and its practice, including the benefits and risks
associated with relevant technology, engage in
continuing study and education and comply with all
continuing legal education requirements to which
the lawyer is subject.”
Arizona, effective Jan. 1, 2015
Arkansas, effective June 26, 2014
Connecticut, effective Jan. 1, 2014
Delaware, effective March 1, 2013
Idaho, effective July 1, 2014
Kansas, effective March 1, 2014
Massachusetts, effective July 1, 2015
Minnesota, effective April, 2015
New Mexico, effective Dec. 31, 2013
North Carolina, approved July 25, 2014
Ohio, effective April 1, 2015
Pennsylvania, effective Nov. 21, 2013
West Virginia, effective Jan. 1, 2015
Wyoming, effective Oct. 6, 2014
14 States Have Adopted Comment 8
Virginia
Adoption Pending in One Other State
On Feb. 28, 2015, the Virginia State Bar Council
voted to adopt the rule change. The change is
pending review and approval by the Virginia
Supreme Court.
Recognized by Ethics Opinion in at Least One State
New Hampshire Bar Association, Advisory Opinion #2012-13/4 (concerning cloud computing)
“Competent lawyers must have a basic understanding of the technologies they use.
Furthermore, as technology, the regulatory framework, and privacy laws keep changing,
lawyers should keep abreast of these changes.”
Either be competent in e-discovery or associate with others who are
CA Proposed Formal Opinion Interim No. 11-0004
“Not every litigated case involves e-discovery. Yet, in
today’s technological world, almost every litigation
matter potentially does. The chances are significant that
a party or a witness has used email or other electronic
communications, stores information digitally, and/or has
other forms of ESI related to the dispute.”
CA Proposed Formal Opinion Interim No. 11-0004
‘Competent’ handling of e-discovery has many
dimensions, depending upon the complexity of e-
discovery in a particular case.
The duty of competence requires an attorney to
assess at the outset of each case what electronic
discovery issues might arise during the litigation.
If e-discovery will probably be sought, the duty
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.
Attorney Handling E-Discovery Should be Able to …
1 Initially assess e-discovery needs and issues, if any.
2 Implement/cause to implement appropriate preservation procedures for electronically stored information (ESI).
3 Analyze and understand client’s ESI systems and storage.
4 Identify custodians of relevant ESI.
5 Perform data searches.
6 Collect responsive ESI in a manner that preserves its integrity.
7 Advise client on 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.
9 Produce responsive ESI in a recognized and appropriate manner.
Duty to Supervise
Attorney must educate everyone involved about:The legal issues in the case.
The factual matters impacting discovery, including witnesses and key evidentiary issues.
The obligations around discovery imposed by the law or the court.
Any risks associated with the e-discovery tasks at hand.
RESPONSIBILITYDUTY
EDUCATION
Can meet the duty through association with outside attorney, outside vendor, subordinate attorney or even the client.
Attorney must maintain overall responsibility for and remain engaged in the work of the expert.
“[A]n attorney has a duty to assert the attorney-client
privilege to protect confidential communications between
the attorney and client.”
Duty of Confidentiality
“A lack of reasonable care to protect against disclosing
privileged and protected information when producing ESI
can be deemed a waiver of the attorney-client privilege.”
“In civil discovery, the attorney-client privilege will protect
confidential communications between the attorney and client
in cases of inadvertent disclosure only if the attorney and
client act reasonably to protect that privilege.”
Not Just an E-Discovery Concern …
Attorneys are obligated to understand the technology used to secure client information, or they must retain/consult with someone who can make them competent.
AZ Opinion 09-04 How are you working with your IT Department?
In satisfying the duty to take reasonable security precautions, lawyers should consider firewalls, password protection schemes, encryption, anti-virus measures, etc.
Onboarding & Training
Cryptography & Authentication
Encryption Issues: local, device and server
”“
Where Does Your Data Really Live?
NC Formal Opinion 2008-5 – “If the [lawyer] will be contracting with a third party to maintain the web-based management system, the [lawyer] must ensure that the third party also employs measures which effectively minimize the risk that confidential information might be lost or disclosed.”
AZ Op: The Committee does not suggest that the protective measures at issue … in this opinion necessarily satisfy ER 1.6’s requirements indefinitely.
Catalyst designs, hosts and services the world’s fastest and most powerful document
repositories for large-scale discovery and regulatory compliance.
For more than 15 years, corporations and their counsel have relied on Catalyst to help reduce
litigation costs and take control of complex legal matters.
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