the duty of technology competence and what it means for e-discovery
TRANSCRIPT
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catalystsecure.com
And What It Means for E-Discovery
WEBINAR
The Duty of Technology Competence Jon Keller, Esq. Maryah McKinley Mark Noel, Esq.
Presenters
ModeratorBob Ambrogi, Esq.
Maintaining CompetenceABA Model Rule 1.1, Comment 8
“To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”
▪ Arizona, effective Jan. 1, 2015.
▪ Arkansas, effective June 26, 2014.
▪ Connecticut, effective Jan. 1, 2014.
▪ Delaware, effective March 1, 2013.
▪ Idaho, effective July 1, 2014.
▪ Kansas, effective March 1, 2014.
▪ Minnesota, effective April, 2015.
▪ New Mexico, effective Dec. 31, 2013.
▪ North Carolina, approved July 25, 2014.
▪ Ohio, effective April 1, 2015.
▪ Pennsylvania, effective Nov. 21, 2013.
▪ West Virginia, effective Jan. 1, 2015.
▪ Wyoming, effective Oct. 6, 2014.
13 States Have Adopted Comment 8
Virginia: On Feb. 28, 2015, the Virginia State Bar Council voted to adopt the rule change. The change is pending review and approval by the Virginia Supreme Court. !
Massachusetts: The Supreme Judicial Court has issued a notice that it will adopt a package of proposed rule changes that includes Comment 8. The SJC is awaiting oral arguments on other proposed rule changes before it issues a formal order adopting the rules or setting an effective date.
Adoption Pending in Two Other States
New Hampshire Bar Association, Advisory Opinion #2012-13/4 (concerning cloud computing)
“Competent lawyers must have a basic understanding of the technologies they use. Furthermore, as technology, the regulatory framework, and privacy laws keep changing, lawyers should keep abreast of these changes.”
Recognized by Ethics Opinion in at Least One State
Either be competent in e-discovery or associate with others who areCA Proposed Formal Opinion Interim No. 11-0004
“Not every litigated case involves e-discovery. Yet, in today’s technological world, almost every litigation matter potentially does. The chances are significant that a party or a witness has used email or other electronic communications, stores information digitally, and/or has other forms of ESI related to the dispute.”
CA Proposed Formal Opinion Interim No. 11-0004‘Competent’ handling of e-discovery has many dimensions, depending upon the complexity of e-discovery in a particular case.
The duty of competence requires an attorney to assess at the outset of each case what electronic discovery issues might arise during the litigation.
If e-discovery will probably be sought, the duty requires an attorney to assess his or her own e-discovery skills and resources as part of the attorney’s duty to provide the client with competent representation.
Attorney Handling E-Discovery Should Be Able To:1. Initially assess e-discovery needs and issues, if any.
2. Implement/cause to implement appropriate preservation procedures for electronically stored information (ESI).
3. Analyze and understand client’s ESI systems and storage.
4. Identify custodians of relevant ESI.
5. Perform data searches.
6. Collect responsive ESI in a manner that preserves its integrity.
7. Advise client on available options for collection and preservation of ESI.
8. Engage in competent and meaningful meet and confer with opposing counsel concerning an e-discovery plan.
9. Produce responsive ESI in a recognized and appropriate manner.
Can meet the duty through association with outside attorney, outside vendor, subordinate attorney or even the client.
Attorney must maintain overall responsibility for and remain engaged in the work of the expert.
Attorney must educate everyone involved about: The legal issues in the case.
The factual matters impacting discovery, including witnesses and key evidentiary issues.
The obligations around discovery imposed by the law or the court.
Any risks associated with the e-discovery tasks at hand.
Duty to Supervise
“[A]n attorney has a duty to assert the attorney-client privilege to protect confidential communications between the attorney and client.”
“In civil discovery, the attorney-client privilege will protect confidential communications between the attorney and client in cases of inadvertent disclosure only if the attorney and client act reasonably to protect that privilege.
“A lack of reasonable care to protect against disclosing privileged and protected information when producing ESI can be deemed a waiver of the attorney-client privilege.”
Duty of Confidentiality
A Catch-22: you need skill in order to recognize your lack of skillThe Dunning-Kruger Effect
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Bob is a lawyer, blogger and veteran legal journalist who has served as editor-in-chief of a number of legal publications,
including the National Law Journal. Bob serves as Catalyst’s director of communications.
Bob Ambrogi [email protected]
As a director of professional services at Catalyst, Maryah supports enterprise e-discovery requirements. She specializes in
analyzing corporate objectives and developing streamlined solutions that integrate with Catalyst platforms and operations.
Maryah McKinley [email protected]
Mark Noel is a former IP litigator, co-founder of an e-discovery software startup, and research scientist who specializes in
helping clients use technology-assisted review, advanced analytics, and custom workflows to deal with large-scale matters.
Mark Noel [email protected]
A senior manager on Catalyst’s product services team, Jon helps clients set up and execute reviews, including data receipt,
processing and ingestion. He specializes in tailoring database design to increase efficiency and pre-production quality assurance.
Jon Keller [email protected]
Thank You!