In two thirds of states, attorneys bear a duty of competence that extends to technology, including competence with eDiscovery technology, ESI sources, and more
In the first Part of this series, we reviewed the change to the ABA Model Rules of Professional Conduct that formalized a duty of technology competence and the adoption of that change (and variations on it) by two thirds of states. In the second Part, we reviewed the first five of California’s enumerated requirements specifically for eDiscovery competence. In this final Part, we discuss the remaining four.
We have been reviewing the nine specific requirements for fulfilling a lawyer’s duty of technology competence for eDiscovery that were set forth in California’s Formal Opinion No. 2015-193. The first five of those requirements all pertained to the initial steps that must be taken at the very beginning of a new matter, even before formal discovery has begun, and the remaining four requirements all pertain to successfully completing execution of ESI discovery:
After all of the initial investigative and scoping steps, and after initial preservation is assured, the next requirement an attorney must be prepared to fulfill is engaging in meaningful discussion about eDiscovery during the meet and confer with opposing counsel. Fulfilling the initial five requirements is a condition precedent to being able to fulfill this one. Negotiating meaningfully about an eDiscovery plan requires already having some concrete knowledge of what ESI exists, where it exists, and in what forms it exists. It requires having already considered the applicable collection options and their associated limitations, risks, and costs, as well as any ESI that may not be reasonably accessible due to burden or cost.
Additionally, it requires looking ahead to the later steps in the discovery process (and the later requirements in this list) to assess potential search protocols, review methodologies, and production plans. It is entirely too common for parties to commit themselves to eDiscovery plans that wind up being either excessively burdensome or technically impossible in some way, because they negotiated the plans without adequate knowledge of the actual facts on the ground or without adequate understanding of the technical realities associated with later steps (see e.g. Progressive and Bridgestone). On the other hand, when handled effectively, negotiation of an eDiscovery plan provides an opportunity to dramatically limit time and cost through agreed, objective limitations on scope, to preempt downstream conflicts about process and execution, or to plan phased discovery to preempt proportionality disputes.
We have touched on the importance of negotiation in both our series on eDiscovery project planning and our series on data targeting, discussing both strategies for gathering the information you need to negotiate an eDiscovery plan effectively and the role of negotiated scope limits in your own project planning.
Once actual discovery work has begun, the next requirement attorneys must be able to satisfy – either on their own or with the assistance of an appropriate expert – is the effective execution of data searches. This may apply to searches of source systems for materials to collect, it may apply to searches of collected materials for the right materials to process, and it may apply to searches of processed materials for the right materials to review. Searching effectively at any of these points in the process requires understanding both substantive and technical realities.
Substantively, you must have some understanding of the content of the source materials and the likely content of the specific materials you are seeking within them. You must have some sense of the language used generally and some idea where the specific language you seek might be found. Technically, you must have some understanding of the capabilities and limitations of the specific search tools you are using. Some tools search automatically within nested content (e.g. attachments and container files), and some tools cannot do so at all. Some tools can understand complex Boolean logic or search metadata values, while other tools can only handle simple keywords within body text. Failure to understand these realities increases the chances of ineffective searches and of difficult-to-detect gaps in your results.
We have discussed strategies for searching ESI materials in our series on data targeting, as well as in our series on investigations. We have also reviewed how to measure the quality (i.e., the recall and precision) of searches in our series on testing classifiers.
We touched a bit on the goal of this requirement in the last Part, in our discussion of the requirement that attorneys be able to advise their clients on options for preservation and collection of ESI. Unlike physical documents, electronic documents are very easily changed – even accidentally. They can be changed by being moved or copied; they can be changed simply by being opened and viewed. Consequently, ESI must be handled very carefully to collect it and work with it in a way that both preserves the original and produces accurate copies for use in a legal matter. Understanding how to avoid altering or destroying metadata by avoiding self-help collection strategies and informal data handling practices is essential to fulfilling the duty of technology competence for eDiscovery. Metadata must be preserved, forensic soundness must be ensured, and chain of custody must be documented.
We have reviewed these issues in more technical and legal depth in our series on collection fundamentals.
The final requirement is that attorneys be able to produce ESI effectively. This is another requirement that is almost always fulfilled in collaboration with an internal expert or an external service provider, but it important for attorneys to understand the range of possibilities and their differing requirements, limitations, and costs. Depending on what is negotiated or required, ESI production may be as simple as creating a few PDF files, or as complicated as custom load files with extracted text and redacted, Bates-numbered page images. Relational database sources will also require negotiations about what reports or exports to generate and how best to do so.
How materials are produced affects how long they take to prepare and how easily they can be searched, reviewed, and used later in depositions and at trial. Negotiating production format, including details like whether and what metadata will be provided, can both ensure maximum usability of what you receive and preempt disputes over what you produce and how you produce it. Failure to understand and negotiate in advance still leads to disputes today.
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