063015 CAEO, ETH 2015-193

Docket Nº:ETH 2015-193
Case Date:June 30, 2015
ETH 2015-193
Formal Opinion No. 2015-193
California Ethics Opinions
State Bar of California Standing Committee on Professional Responsibility and Conduct
June 30, 2015
         ISSUE: What are an attorney’s ethical duties in the handling of discovery of electronically stored information?          DIGEST: An attorney’s obligations under the ethical duty of competence evolve as new technologies develop and become integrated with the practice of law. Attorney competence related to litigation generally requires, among other things, and at a minimum, a basic understanding of, and facility with, issues relating to e-discovery, including the discovery of electronically stored information (“ESI”). On a case-by-case basis, the duty of competence may require a higher level of technical knowledge and ability, depending on the e-discovery issues involved in a matter, and the nature of the ESI. Competency may require even a highly experienced attorney to seek assistance in some litigation matters involving ESI. An attorney lacking the required competence for e-discovery 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 e-discovery issues also may lead to an ethical violation of an attorney’s duty of confidentiality.          AUTHORITIES INTERPRETED: Rules 3-100 and 3-110 of the Rules of Professional Conduct of the State Bar of California.[1]          Business and Professions Code section 6068(e).          Evidence Code sections 952, 954 and 955.          STATEMENT OF FACTS          Attorney defends Client in litigation brought by Client’s Chief Competitor in a judicial district that mandates consideration of e-discovery[2] issues in its formal case management order, which is consistent with California Rules of Court, rule 3.728. Opposing Counsel demands e-discovery; Attorney refuses. They are unable to reach an agreement by the time of the initial case management conference. At that conference, an annoyed Judge informs both attorneys they have had ample prior notice that e-discovery would be addressed at the conference and tells them to return in two hours with a joint proposal.          In the ensuing meeting between the two lawyers, Opposing Counsel suggests a joint search of Client’s network, using Opposing Counsel’s chosen vendor, based upon a jointly agreed search term list. She offers a clawback agreement that would permit Client to claw back any inadvertently produced ESI that is protected by the attorney-client privilege and/or the work product doctrine (“Privileged ESI”).          Attorney believes the clawback agreement will allow him to pull back anything he “inadvertently” produces. Attorney concludes that Opposing Counsel’s proposal is acceptable and, after advising Client about the terms and obtaining Client’s authority, agrees to Opposing Counsel’s proposal. Judge thereafter approves the attorneys’ joint agreement and incorporates it into a Case Management Order, including the provision for the clawback of Privileged ESI. The Court sets a deadline three months later for the network search to occur.          Back in his office, Attorney prepares a list of keywords he thinks would be relevant to the case, and provides them to Opposing Counsel as Client’s agreed upon search terms. Attorney reviews Opposing Counsel’s additional proposed search terms, which on their face appear to be neutral and not advantageous to one party or the other, and agrees that they may be included.          Attorney has represented Client before, and knows Client is a large company with an information technology (“IT”) department. Client’s CEO tells Attorney there is no electronic information it has not already provided to Attorney in hard copy form. Attorney assumes that the IT department understands network searches better than he does and, relying on that assumption and the information provided by CEO, concludes it is unnecessary to do anything further beyond instructing Client to provide Vendor direct access to its network on the agreed upon search date. Attorney takes no further action to review the available data or to instruct Client or its IT staff about the search or discovery. As directed by Attorney, Client gives Vendor unsupervised direct access to its network to run the search using the search terms.          Subsequently, Attorney receives an electronic copy of the data retrieved by Vendor’s search and, busy with other matters, saves it in an electronic file without review. He believes that the data will match the hard copy documents provided by Client that he already has reviewed, based on Client’s CEO’s representation that all information has already been provided to Attorney.          A few weeks later, Attorney receives a letter from Opposing Counsel accusing Client of destroying evidence and/or spoliation. Opposing Counsel threatens motions for monetary and evidentiary sanctions. After Attorney receives this letter, he unsuccessfully attempts to open his electronic copy of the data retrieved by Vendor’s search. Attorney hires an e-discovery expert (“Expert”), who accesses the data, conducts a forensic search, and tells Attorney potentially responsive ESI has been routinely deleted from Client’s computers as part of Client’s normal document retention policy, resulting in gaps in the document production. Expert also advises Attorney that, due to the breadth of Vendor’s execution of the jointly agreed search terms, both privileged information and irrelevant but highly proprietary information about Client’s upcoming revolutionary product were provided to Chief Competitor in the data retrieval. Expert advises Attorney that an IT professional with litigation experience likely would have recognized the overbreadth of the search and prevented the retrieval of the proprietary information.          What ethical issues face Attorney relating to the e-discovery issues in this hypothetical?          DISCUSSION          I. Duty of Competence          A. Did Attorney Violate The Duty of Competence Arising From His Own Acts/Omissions?          While e-discovery may be relatively new to the legal profession, an attorney’s core ethical duty of competence remains constant. Rule 3-110(A) provides: “A member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence.” Under subdivision (B) of that rule, “competence” in legal services shall mean to apply the diligence, learning and skill, and mental, emotional, and physical ability reasonably necessary for the performance of such service. Read together, a mere failure to act competently does not trigger discipline under rule 3-110. Rather, it is the failure to do so in a manner that is intentional, reckless or repeated that would result in a disciplinable rule 3-110 violation. (See In the Matter of Torres (Reviwe Dept...

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