The California Bar recently released an opinion concerning the ethical obligations of attorneys with respect to e-discovery and electronically stored information (ESI). Among the skills listed by the California Bar that an attorney should be able to perform are:
(i) Initially assessing e-discovery needs and issues, if any;
(ii) Implementing or causing implementation of appropriate ESI preservation procedures, such as circulating litigation holds or suspending auto-delete programs;
(iii) Analyzing and understanding the client’s ESI systems and storage;
(iv) Advising the client on available options for collection and preservation of ESI;
(v) Identifying custodians or potentially relevant ESI;
(vi) Engaging in “competent and meaningful meet and confer with opposing counsel concerning an e-discovery plan”;
(vii) Performing data searches;
(viii) Collecting responsive ESI (“in a manner that preserves the integrity of the ESI”); and
(ix) Producing responsive non-privileged ESI “in a recognized and appropriate manner.”
While at present there is no developed record of disciplinary decisions on these topics, there is ample basis to discern a framework for ethical obligations, derived from ethics and court rules and attorney malpractice and sanctions decisions (imposing additional discovery, monetary penalties, and adverse inference instructions). Ultimately, these sources provide guidance on what discovery obligations and technologies lawyers need to know about and master.
