E-Discovery Hazards Raise Competency and Client Confidentiality Issues

A recent ethics opinion from the California State Bar Committee on Professional Responsibility, Formal Op. 2015-193, outlines how even an experienced lawyer can breach duties of competence and client confidentiality by engaging in e-discovery without the assistance of someone with e-discovery expertise.  In this opinion, a hypothetical Lawyer entered into a joint agreement with Opposing Counsel permitting Opposing Counsel’s vendor to search the Client’s computer system for discoverable electronically stored information (“ESI”) using agreed upon search terms.  The joint agreement contained a clawback provision to permit Client to clawback any inadvertently produced ESI protected by attorney client privilege or work product.

After all the ESI is produced, Lawyer receives a letter from Opposing Counsel accusing Counsel’s Client of destroying evidence and/or spoliation, and threatens motions for monetary and evidentiary sanctions. Lawyer hires an e-discovery Expert who reviews the produced ESI, and tells Lawyer that potentially responsive ESI has been routinely deleted from Client’s computers as part of Client’s normal document retention policy, revealing gaps in the document production. Expert also states that due to the breadth of the agreed upon search terms, both privileged information and proprietary information about the Client’s important new product were revealed to the opposing party, Client’s chief competitor. Expert advises Lawyer that an IT professional with litigation experience would have identified the over-breadth of the search terms and would have advised Lawyer not to agree to such a far-reaching joint agreement.

The committee analyzes the facts, and concludes that the hypothetical Lawyer has violated the duty of competency and may have violated client confidentiality. The committee states that competency requires a lawyer who lacks expertise in e-discovery in a case to do one of the following: either acquire sufficient knowledge and skill before e-discovery begins, or consult a technical expert or associate with competent counsel, or decline the representation. The committee also cautions that even when a lawyer engages an expert or associates with another to assist with e-discovery, the lawyer still has a duty to supervise the work and is ultimately responsible for the work of others.

In concluding that Lawyer may have breached client confidentiality, the committee stresses that the Lawyer agreed to release the ESI to Opposing Counsel without first reviewing the ESI to determine if any material was subject to the clawback provision as being subject to attorney client privilege or work product. A prior review would have also revealed the highly confidential proprietary information and Lawyer could have taken measures to protect Client’s interests.

This opinion is instructive of the need for all lawyers, even very experienced lawyers, to understand new technology or seek the assistance of qualified persons to assist them before using new technology. The opinion also demonstrates how failure to be sufficiently competent in new developments, such as e-discovery, may also violate the duty of client confidentiality.

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