In discovery specifically, and in legal practice generally, the role of electronically-stored information (ESI) and new technology has grown exponentially over the past decade. As a result, it has become a practical reality that effective legal practice and effective discovery requires some level of technology literacy and competence, and since 2012, that practical reality has been slowly transforming into a formal requirement.
California promulgated Formal Opinion No. 2015-193 in 2015, which established a duty of technology competence for eDiscovery and identified nine specific requirements for fulfilling that duty, which have been widely discussed as a useful model for all attorneys. The first five of those requirements all pertain to the initial steps that must be taken at the very beginning of a new matter, even before formal discovery has begun.
The first five of California’s requirements for fulfilling a lawyer’s duty of technology competence for eDiscovery all pertained to the initial steps that must be taken at the very beginning of a new matter, even before formal discovery has begun. The remaining four requirements all pertain to successfully completing actual discovery, including negotiation, collection, search and production of ESI.