The standards for professional competency requiring attorneys to comprehend technology are rapidly rising. Since the 2006 amendments were made to the Federal Rules of Civil Procedure (FRCP), the judiciary has given members of the Bar a learning curve "hall pass," tolerating attorneys who have limited comprehension of e-discovery. Indeed, during that period there were various sanctions imposed for notable professional lapses involving data preservation, collection, processing, failure to cooperate, review and production, but they were few in number and were generally restricted to particular factual circumstances. Serious errors by counsel in the management of e-discovery in Qualcomm v. Broadcom certainly caused a group of lawyers to lose sleep for a couple of years; however, ultimately the lawyers were able to escape without ever having sanctions imposed. 2010 U.S. Dist. LEXIS 33889 (S.D. Cal. April 2, 2010). While there are a few significant sanction cases that actually had a material effect on the sanctioned party (e.g., Coquina Investments v. Rothstein, 2012 U.S. Dist. LEXIS 108712 (S.D. Fla. Aug. 3, 2012) (where findings of fact by the judge may have eight-figure consequences for the defendant in future cases by reason of collateral estoppel)), the majority of these penalties are confined to cost shifting or relatively small monetary awards.

Changing Landscape

Over the past year we are starting to see the landscape change, and ethics is the new topic du jour. Taking shape is a "brave new world" where the stakes and obligations of counsel are significantly higher. As the judiciary and clients become increasingly familiar with e-discovery terminology such as "TAR" and "predictive coding," and as we continue to limit the volume of paper in our lives (i.e., President Barack Obama's electronic medical records mandate), attorneys will be bound professionally to understand technology as it intersects with their ethical obligations when handling e-discovery.

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