What's new in updated e-discovery ethics opinion?

In April 2014, the State Bar of California's Standing Committee on Professional Responsibility and Conduct (COPRAC) released Proposed Ethics Opinion 11-0004 "Electronically Stored Information and Discovery Requests" for public comment. The proposed opinion appeared to be the first proffered ethics opinion addressing electronically stored information and discovery in the nation. That first round of public comment closed in June, and the opinion went back before the COPRAC for further review in light of the comments received. But earlier this month, over six months later, COPRAC released a revised Proposed Opinion 11-0004, for a second round of public opinion. What took so long? And what changed?

The revised proposed opinion retains the central premise of the original - namely, that in light of the high potential for electronically stored information in every litigated matter in our modern technological world, an attorney must make an ethical assessment of the e-discovery needs of a case, and of his own competency to handle them, at the outset. If the attorney lacks that competence, he may associate or consult with another who has the necessary learning and skill, he may acquire sufficient learning and skill before performance is required, or he may decline representation.

The revised version of 11-0004 continues to note that association and consultation may be through an attorney (colleague, associate, subordinate) or through a nonattorney expert, if that expert has the requisite knowledge and skill (citing California Formal Opinion 2010-179). If e-discovery is implicated, the duty of competence requires the attorney, either on his own or through association/consultation, have the requisite level of familiarity and skill to, among other things:

1. Initially assess e-discovery needs and issues, if any;

2. Implement/cause to implement appropriate electronically stored information preservation procedures;

3. Analyze and understand a client's electronically stored information systems and storage;

4. Identify custodians of relevant electronically stored information;

5. Perform data searches;

6. Collect responsive electronically stored information in a manner that preserves the integrity of that information;

7. Advise the client on available options for collection and preservation of electronically stored information;

8. Engage in competent and meaningful meet and confer with opposing counsel concerning an e-discovery plan; and

9. Produce responsive electronically stored information in a recognized and appropriate manner.

What, then, changed between the previous proposed opinion and the revised opinion?

The revised proposed opinion now notes that its focus is on an attorney's ethical obligations relating to his own client's electronically stored information, and its nine-item list is provided within that context - it is not intended to address the scope of an attorney's duty of competence relating to an opposing party's electronically stored information (the original proposed opinion was silent on the issue).

There is also a focus on competency and confidentiality. The previous opinion sections discussing the duty not to suppress evidence and the duty of candor have been withdrawn from the analysis. The revised proposed opinion also deemphasized its former discussion about litigation holds, although it discusses them, and their efficacy, in a footnote.

The most significant changes are twofold. First, the revised proposed opinion makes plain that a mere failure to act competently does not trigger a disciplinable Rule 3-110 violation for failure to act competently, but that it is the failure to act competently in a manner that is intentional, reckless or repeated that would do so.

Second is the addition of a substantial competency section discussing the duty to supervise under Rule 3-110 (Discussion). Noting that the duty to supervise can extend to outside vendors or contractors, or even to the client itself, an attorney's association/consultation under Rule 3-110 does not absolve an attorney's duty to supervise the work of that expert under Rule 3-110, "a non-delegable duty belonging to the attorney who is counsel in the litigation, and who remains the one primarily answerable to the court."

Explaining what supervision means in the context where the expert is involved because the attorney lacks electronically stored information technical competence, the opinion states: "An attorney must maintain overall responsibility for the work of the expert he or she chooses, even if that expert is the client or someone employed by the client. The attorney must do so by remaining regularly engaged in the expert's work, by educating everyone involved in the e-discover workup 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 by the court, and of any relevant risks associated with the e-discovery tasks at hand. The attorney should issue appropriate instructions and guidance and ultimately, conduct appropriate tests until satisfied that the attorney is meeting his ethical obligations prior to releasing ESI."

The revised proposed opinion does not mandate that an attorney become an e-discovery expert or face discipline. It simply states that an attorney must make an e-discovery assessment and take reasonable and appropriate steps under Rule 3-110 to cure technical competency problems if any are implicated by the case. This is no different than an attorney handling any technical matter outside the attorney's experience and is the reason consultants are commonly employed in litigation. The revision simply makes clear these same concepts apply in an electronically stored information /discovery setting. If association/consultation occurs, the attorney must continue to supervise the experts, even with his lack of e-discovery expertise. In sum, an attorney may not blindly jump into handling a complex e-discovery case without knowing how to do that competently. Equally important, an attorney may not blindly hand over the entire e-discovery process to the expert (consultant, client or even subordinate attorney) without supervising that expert.

Public comment is being accepted until April 9, 2015. Comments may be submitted to angela.marlaud@calbar.ca.gov. A full text of the proposed opinion can be obtained at www.calbar.ca.gov/AboutUs/PublicComment/201501.aspx. California proposed ethics opinions are not final unless and until they are approved by the State Bar of California's Board of Trustees.