Electronic Discovery: Are We Competent?

by Viggo Boserup, Esq.

The State Bar of California has issued perhaps the country’s most straightforward and candid directive to litigators to learn the ins and outs of electronic discovery (e-discovery).  In a proposed formal opinion, it states, “Not every litigated case ultimately involves e-discovery; however, in today’s technological world, almost every litigation matter potentially does.”  It goes on to say that, as a matter of competency, the attorney handling e-discovery should be able to do the following nine things:

1. Assess e-discovery needs;
2. Implement appropriate preservation procedures;
3. Analyze and understand clients’ electronically stored information (ESI) systems and storage;
4. Identify custodians of relevant ESI;
5. Perform appropriate searches;
6. Collect responsive ESI in a manner that preserves its integrity;
7. Advise clients on available options for collection and preservation of ESI;
8. Engage in a “competent and meaningful” meet-and-confer to address e-discovery plan; and
9. Produce responsive ESI in an appropriate manner.

The opinion, in essence, states that counsel in California have three options:

1. Be competent to handle e-discovery;
2. Find someone who is competent in e-discovery; or
3. Decline the representation.

While the California advisory opinion is only proposed, it is arguably a model for other jurisdictions and certainly provides a useful checklist for assessing counsel’s own preparedness for e-discovery any place in the country.

Faced with the foregoing, what is the average law firm to do?

While a firm’s litigators have the clearest need for e-discovery competence, it is important to recognize that non-litigators within a firm play an important role in e-discovery as well.  It is often the case that a non-litigator happens to be the primary contact with the outside client, and that attorney can play a crucial role in having the client prepared for e-discovery at all times.  By counseling the client on issues of information governance, the attorney facilitates the client’s preparedness for future e-discovery issues.  Getting it right before litigation can save enormous amounts of resources.  In order to provide effective counseling, it is, of course, essential that such counsel understand what may be expected in the event of litigation involving e-discovery.  For that reason, it is important that all counsel participate in at least the initial steps of preparing for e-discovery competence.

To learn more about competency in e-discovery, please read the full article from Law.com by clicking here.