California recently released an ethics opinion that addresses whether litigators have a duty to know how e-discovery works. Upshot: Yes. It reads in part:
Attorney competence related to litigation generally requires, at a minimum, a basic understanding of, and facility with, issues relating to e-discovery, i.e., the discovery of electronically stored information (“ESI”)… Such competency requirements may render an otherwise highly experienced attorney not competent to handle certain litigation matters involving ESI.
Attorneys who handle litigation may not simply ignore the potential impact of evidentiary information existing in electronic form. Depending on the factual circumstances, a lack of technological knowledge in handling e-discovery may render an attorney ethically incompetent to handle certain litigation matters involving e-discovery, absent curative assistance under rule 3-110(C), even where the attorney may otherwise be highly experienced.
While this opinion has not officially been adopted by California, the day is nigh! The opinion in question is a proposed opinion that was only released for a 90-day public comment period. (H/T Above the Law)
The bottom line is, you can no longer dodge e-discovery or say it is not relevant to you and your practice. Why? This opinion is not saying e-discovery is just for litigators. It IS saying any lawyer where e-discovery may be a potential issue must know e-discovery. Given the use of technological devices, cloud services by almost everyone as well as storage, every legal matter has potential for e-discovery issues. And to not know e-discovery may ‘render an attorney ethically incompetent to handle’ certain cases even if they are otherwise highly competent to do so is an alarming wake-up call. There is only one way to read this – if you don’t know e-discovery can you really be ‘highly competent’? Not if they are imputing a lack of ethics if you practice law without knowing e-discovery!