Collection and the Duty of Technology Competence – Collection Fundamentals Series, Part 1

A multi-part series on the essentials practitioners need to know about ESI collections

As electronically-stored information (ESI) has become the norm, as computers and mobile devices have proliferated, and as eDiscovery tools have multiplied, competence with technology has become an essential part of being an effective legal practitioner. Since 2012, that practical requirement has been slowly becoming a formal one.

The Duty of Technology Competence in Discovery

In August 2012, the American Bar Association (ABA) adopted updates to its model rules to make the need for technology competence explicit.  Model Rule of Professional Conduct 1.1 establishes a lawyer’s general duty of competence in their work, and the last Comment to that rule covers “Maintaining Competence” over time through continuing legal education (CLE), individual study, etc.  The new updates amended that comment to add technology:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.  [emphasis added]

Over the years since, twenty-nine states have adopted some form of technology competence requirement for lawyers, with most following the ABA Model Rule.  Twenty-six of those states – Arizona, Arkansas, Colorado, Connecticut, Delaware, Idaho, Illinois, Iowa, Kansas, Massachusetts, Minnesota, Nebraska, New Hampshire, New Mexico, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, Tennessee, Utah, Virginia, Washington, West Virginia, Wisconsin, and Wyoming – have implemented the ABA Model Rule update.  Florida has done so and has also added an explicit technology CLE requirement and addressed reliance on technical experts, and North Carolina has implemented a slightly rephrased version.

In 2015, California promulgated a more detailed ethics opinion (Formal Opinion No. 2015-193) focused more specifically on eDiscovery, to which many look as a guideline for core technology competencies legal practitioners should acquire.

Collection and the California Opinion

The California opinion identifies nine core competencies that lawyers must either have themselves or obtain through collaboration with relevant non-lawyer experts:

1. “initially assess e-discovery needs and issues, if any”
2. “implement/cause to implement appropriate ESI preservation procedures”
3. “analyze and understand a client’s ESI systems and storage”
4. “advise the client on available options for collection and preservation of ESI”
5. “identify custodians of potentially relevant ESI”
6. “engage in competent and meaningful meet and confer with opposing counsel concerning an e-discovery plan”
7. “perform data searches”
8. “collect responsive ESI in a manner that preserves the integrity of that ESI”
9. “produce responsive non-privileged ESI in a recognized and appropriate manner”

Of these nine requirements, two explicitly refer to collection (#4 and #8), and four more relate to collection activities by implication (#1, #2, #3, and #5).  Thus, understanding the technology fundamentals of collection is essential to fulfilling a lawyer’s duty of technology competence in California and, likely, in twenty-eight other states as well.

Upcoming in this Series

Over the coming weeks in this series, we will discuss collection fundamentals including: the scope of collection, how data is stored and recovered, available collection tools and methods, the importance of metadata, forensic soundness and chain of custody, and more.