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Much ink has been spilled about the demands of discovery in the current technological age. The storage of electronic data, the existence of metadata and the wholesale migration from printed hard copy documents to electronic documents have challenged all practitioners, particularly those trained in discovery during the era of banker’s boxes and hard copy documents. The 2006 e-discovery amendments to the Federal Rules of Civil Procedure, along with other standard-setting rules, have raised the stakes. In fact, in the current climate, given the interplay between ethical obligations and standards for professional conduct and these e-discovery requirements, attorneys may be surprised to learn that inattention to e-discovery may not only work to the detriment of clients � it may lead to professional malpractice or the imposition of sanctions on counsel. If any doubt remained, the ongoing discovery dispute in the Qualcomm v. Broadcom case, discussed below, should eliminate it. Although there are numerous sources for lawyers’ legal duties, as a base line, Rule 1.1 of the Model Rules of Professional Conduct imposes a duty of competency on attorneys. Competent representation uses such “legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” A vital component of competency is reasonable diligence in fulfilling an attorney’s duties in a case, whatever they may be. Model Rules of Prof’l Responsibility, Rule 1.3 (1996). On the flip side of Rule 1.1, the Model Code of Professional Responsibility also prohibits lawyers from handling any matters “which he knows or should know that he is not competent to handle,” and from acting without “preparation adequate in the circumstances.” Model Code of Prof’l Responsibility DR 6-101(A)(1), (2); see also Restatement (Third) of the Law Governing Lawyers � 16(2) (2000); Calif. Rules of Prof’l Conduct R. 3-110(B); N.Y. Lawyers’ Code of Prof’l Responsibility Canon 6, EC 6-1. The requirement of competency has generally been held to be a relatively low standard of ordinary or “reasonable care,” with disciplinary action limited to situations in which there is a pattern of neglect and consistent failure to carry out an attorney’s obligations. See Restatement, supra � 52, � 16 cmt d (2000); American Bar Association (ABA), Annotated Model Rules of Professional Conduct 2-3 (3d ed. 1996). Despite the low standard, failure to provide competent representation nevertheless creates the potential for malpractice actions. Restatement, supra � 48 (2000). In legal malpractice actions, the client must establish that, but for the attorney’s neglect, the litigation would have ended in a result more favorable for the client. That is, the client must prove the existence of a duty, a breach of that duty, proximate cause and damage. 4 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice � 30:5 (2007 ed.). Thus, in general, an attorney owes a duty of care to clients to “exercise the competence and diligence normally exercised by lawyers in similar circumstances.” Restatement, supra � 16 (2000). Needed knowledge changes fast In the context of electronically stored discovery, the skills and legal knowledge that might be deemed an essential part of “competency” are rapidly changing with technological advances. Challenges do arise repeatedly, largely due to the volume and complexity of electronic data. In addition to the dramatic increase in e-mail usage and electronic file generation, electronically stored information is more difficult to identify, manage and dispose of, and includes content that is designed to automatically change over time. See The Sedona Principles Addressing Electronic Document Production (June 2007), at 2-3, www.thesedonaconference.org/content/miscFiles/TSC_PRINCP_2nd_ed_607.pdf. For example, a “deleted” document is still recoverable until written over, and many work flow systems automatically update, copy and transfer files, all of which alters the content of the electronic information. Id. at 3. Another concern may be the fact that devices beyond the computer are potentially affected, including handheld wireless devices, mobile telephones and audio systems such as voice mail. See Trope, infra, at 10; see also Calyon v. Mizuho Secs. USA Inc., No. 07CIV02241RODF, 2007 WL 1468889 (S.D.N.Y. May 18, 2007). In addition, a large amount of e-data contain “metadata,” information about a particular data set or document that describes how, when and by whom it was collected, created, accessed, modified and formatted. In certain situations, the metadata may be more relevant to the issues than the document or data themselves. In a patent infringement case, for example, the court rejected a defendant’s attempt to produce printouts of electronic content and found that the original electronic media containing metadata would be relevant to the plaintiff’s infringement claims, as they would allow him to “piece together the chronology of events and figure out, among other things, who received what information and when.” Hagenbuch v. 3B6 Sistemi Elettronici Industriali S.R.L., No. 04 C 3109, 2006 WL 665005, at *3 (N.D. Ill. March 8, 2006). The 2006 e-discovery amendments have further raised the stakes for litigants by formally recognizing that discovery materials are created, transported and stored in a variety of electronic platforms and therefore are specifically subject to the protocols and scheduling by which the parties conduct discovery and/or make mandatory disclosures. See Konrad L. Trope, “Privacy and Security Issues in Discovery and Litigation,” State Bar of California, Business Law Section, Cyberspace Committee 5 (2007), http://calbar.ca.gov/calbar/pdfs/sections/buslaw/cyberspace/2007-04-12_privacy%20and%20security-issues_trope.pdf. Sanctions hearings and decisions are on the uptick as well. See Mia Mazza, et al., “In Pursuit of FRCP 1: Creative Approaches to Cutting and Shifting the Costs of Discovery of Electronically Stored Information,” 13 Rich. J. L. & Tech. 11, 37 (2007). In this dynamic area of law, case law continues to drive the applicable standards and outpaces rules and ethics committees in setting guidelines. Courts are largely recognizing that it is the responsibility of counsel to ensure rules-compliant document production. See, e.g., Rafael Town Center Investors LLC v. The Weitz Co. LLC, No. C 06-6633, 2007 WL 2261376 (N.D. Calif. Aug. 6, 2007); see also Navigating the New E-Discovery Rules, ABA Litigation Section Quarterly, Winter 2007, at 2 (“[T]he obligation to preserve evidence runs first to counsel, who then has a duty to advise and explain to the client its obligation to retain documents and data that may be relevant to the litigation . . . .[I]t is not acceptable to rely upon the client.”). This obligation, along with the competency requirements of Model Rule 1.1, makes it highly probable that malpractice claims will largely center on counsel’s competency in advising clients as to preservation and production of e-discovery as well as compliance with the federal e-discovery amendments. Yet state professional ethics committees have provided little guidance on how e-discovery fits into the competency matrix of “legal knowledge, skill, thoroughness and preparation” necessary for representation. Model Rules of Prof’l Responsibility Rule 1.1. To the extent that there is guidance, ethics committees have addressed the use of metadata from e-data received from adverse parties. Depending upon the jurisdiction, it is acceptable for an attorney to review and use metadata inadvertently produced with e-discovery materials. See ABA Model Rules of Prof’l Conduct, Formal Opinion 06-442 (August 5, 2006) (permitting review); D.C. Bar Ethics Opinion 341 (permitting review); N.Y. State Bar Ethics Opinion 749 (not permitting review); Florida Bar Ethics Opinion 06-02 (not permitting review). Because these opinions suggest that in some jurisdictions an attorney’s opponent is free to use any metadata within the e-data he or she receives, they also suggest that, in order to be competent, litigators should take steps to protect against the unintentional distribution of metadata. Another wrinkle in the e-discovery/competency question is the characterization of e-discovery. Rule 1.1 of the Model Rules of Professional Responsibility permit attorneys not competent in a specific field to associate with a lawyer of the right expertise when undertaking representation. Whether the use of e-discovery vendors can dispel e-competency obligations remains to be seen. Moreover, it is unclear to what extent e-discovery can be considered a specialized substantive expertise in the same vein as, for example, patent law or whether it is more akin to a learnable skill such as taking depositions or drafting motions. E-discovery’s characterization as a skill is particularly persuasive, given that despite the existence of e-discovery vendors providing preservation and search services, the discovery process nevertheless requires the exercise of legal judgment in advising clients regarding discovery rules. See Best Practices for the Selection of Electronic Discovery Vendors (June 2007), www.thesedonaconference.org/content/miscFiles/RFP_Paper.pdf. E-competence has increasing importance now under the federal e-discovery rules because lawyers are required under Fed. R. Civ. P. 11. to sign pleadings certifying that, after a reasonable inquiry, the pleading is “well grounded” in fact. Lawyers also may be sanctioned for deficient discovery responses under Fed. R. Civ. P. 26(g); be liable for negligence, tactical intransigence and intentional misconduct under Fed. R. Civ. P. 37; and, in certain jurisdictions, be personally liable for common law spoliation. Discovery negligence and malpractice opinions often arise under these rules as well. Generally however, sanctions are imposed on the party or client and not the attorneys. See, e.g., In re Seroquel Prods. Liab. Litig., No. 6:06-md-1769, 2007 WL 2412946 (M.D. Fla. Aug. 21, 2007); In re Sept. 11th Liab. Ins. Coverage Cases, No. 03 Civ. 332, 2007 WL 1739666 (S.D.N.Y. June 18, 2007). In the Qualcomm case, U.S. District Magistrate Judge Barbara L. Major may take the unusual step of directly imposing sanctions, under Fed. R. Civ. P. 26 and 37, on the attorneys involved. Qualcomm Inc. v. Broadcom Corp., No. 05cv1958-B (S.D. Calif. March 21, 2007) (order to show cause why sanctions should not be imposed). In Qualcomm, it was revealed during trial that the plaintiff failed to produce more than 200,000 pages of relevant e-mails, memoranda and other company documents contradicting previous testimony and signed discovery responses. The trial court rejected Qualcomm counsel’s arguments that they were misled by their client as to available information and specifically found, “by clear and convincing evidence that Qualcomm['s] counsel participated in an organized program of litigation misconduct and concealment throughout discovery, trial, and post-trial.” Qualcomm, 2007 WL 2296441, at *21 (S.D. Calif. Aug. 6, 2007) (order on remedy for finding waiver). The court pointed to Qualcomm counsel’s steadfast denials of the existence of such evidence, false denials of all factual allegations and arguments that Broadcom had no evidence to support its claims. Id. at *26-*32. A hearing was held on Oct. 12, but as of press time, the court had not issued a ruling on the attorneys’ sanctions issues. At the sanctions hearing, Qualcomm submitted employee declarations critical of its attorneys. In response, those same attorneys stated that they could neither address nor refute those declarations absent waiver of privileged attorney-client communications. According to the attorneys, “Qualcomm hamstrung [its] defense by deciding to keep its communications with its attorneys confidential.” See Elliot Spagat, “Lawyers Face Sanctions in Qualcomm Suit,” Assoc. Press, Oct. 12, 2007. This pressure for sanctions and the breakdown of the attorney-client relationship suggests a subsequent malpractice claim may not be far behind. While most attorneys recognize that there are increased obligations under the federal rules, many still believe it is acceptable simply to defer to the client and/or e-discovery vendors to make key strategic decisions. The case law, particularly Qualcomm, demonstrates not only that this is false, but also that it can become an expensive and damaging mistake. At the end of the day, counsel is charged with providing competent advice in the area of discovery and with the appropriate exercise of his or her legal knowledge and judgment on behalf of the client. Rapidly changing technology and communication forms are putting electronic data and information directly into this arena, and counsel cannot provide competent legal representation absent an understanding of e-discovery issues. Janet H. Kwuon is a partner in the Los Angeles office of Reed Smith and a member of its products liability group. She serves as the firm’s director of complex litigation e-discovery. Karen Wan is an associate in that office and a member of the firm’s commercial litigation group.

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