E-Discovery: You Had Better Learn

A new formal opinion released by California’s Committee on Professional Responsibility and Conduct cautions attorneys about their ethical duties regarding electronically stored information. “Your Honor, I am a Tech Troglodyte and don’t understand how eDiscovery works,” will no longer be a valid acceptable argument in California.

The California opinion states that attorneys should be held responsible for evaluating the need for electronic discovery on a case-by-case basis. If eDiscovery is needed or conducted by either the defendant or plaintiff, lawyers on both sides must understand how the information is stored, mined, retained, searched and deleted. If the technology or process eludes them, it’s up to the attorney to seek help from another source. (Asking your ten year-old daughter frequently may get the tech challenged lawyer going in the right direction).

“An attorney lacking the required competence for eDiscovery issues 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 eDiscovery issues also may lead to an ethical violation of an attorney’s duty of confidentiality,” noted the opinion.


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