In “Ethical E-Discovery: What Every Lawyer Needs to Know,” author and eDiscovery counsel Samantha Ettari brings to light key elements in a new opinion released by the California Bar Association (CBA) on the ethical responsibilities of lawyers with regard to eDiscovery.
Among the elements Ettari emphasized are conducting an initial assessment of eDiscovery needs, implementing appropriate preservation methods for electronically stored information (ESI), advising the client on options for collecting and preserving ESI and identifying custodians and relevant ESI.
While highlighting the CBA’s opinion, Ettari makes it clear that the “key ethical rule is competence.” Ultimately, legal counsel have not only a responsibility to conduct eDiscovery in an ethical manner but also a professional obligation to know and understand current technology and the core competencies necessary to conduct eDiscovery.
Counsel should also consider other factors in tandem with those the CBA mentioned. For example, Ettari shared that counsel have a responsibility to advise the client on the possible need to implement a litigation hold before even the first client meeting. This may be necessary in some legal matters to ensure that data isn’t destroyed as counsel and opposing counsel establish the discovery plan.
Additionally, counsel should be adept at identifying custodians and/or ESI sources relevant to the dispute to design pertinent keywords and search mechanisms. Ettari, quoting Judge Andrew Peck, suggests that “the bar needs a ‘wake-up call . . . about the need for careful thought, quality control, testing, and cooperation with opposing counsel in designing search terms or ‘keywords’ to be used to produce emails or other [ESI].’” To that end, it is imperative that counsel conduct due diligence within a matter and perform “a thorough search for relevant documents, make reasonable inquiries into all document requests, and timely produce all documents once available.”
Ettari concludes by advising that counsel need to supervise all who assist them within the matter, contending that “as the standards of professional conduct evolve to meet changing technologies, it is likely that these responsibilities and baseline proficiencies will become more central to attorneys’ ethical obligations.”