The California Bar Association recently released Formal Interim Opinion No. 11-0004, regarding an attorney’s ethical duties in the handling of discovery of electronically stored information (ESI).
The Opinion offered a hypothetical example of an attorney who was unfamiliar with ESI. When it became apparent that electronic discovery would be sought by opposing counsel, he failed to take any action to learn more and failed to consult with an ESI expert. The attorney did not prepare for discussions regarding ESI at the initial case management conference.
After being ordered by the judge to come to an agreement on electronic discovery, opposing counsel suggested they do a joint search of the attorney’s client joint network using agreed-upon search terms. In the Agreed Order, the attorney mistakenly believed the Clawback provision allowed him to take back any ESI. Clawback orders typically only allow for the return of privileged information, inadvertently tendered and promptly requested returned. After the Agreed Order was entered, the attorney took no further action.
As the attorney did not do anything more, such as issuing a litigation hold and making sure the company complied, discoverable electronic data was negligently deleted by the client company. Additionally, because the search terms were so broad, privileged and proprietary information was tendered. Not all the information tendered was covered by the clawback provision.
Did This Attorney Breach the Ethical Duty of Competence?
Considering Rule 3-110(A), the hypothetical attorney breached the Duty of Competence when he took on a case regarding ESI, knowing little about the subject and failing to consult an expert on ESI early in the case. If he had been knowledgeable regarding electronic discovery issues or had he consulted with an ESI expert, he could have:
- Stopped electronic data from deletion by issuing a litigation hold
- Structured the search differently
- Refined the search terms to avoid an overbroad production
- Avoided turning over privileged and proprietary information
The main point of this formal opinion is an attorney can avoid breaching his or her ethical duties regarding ESI by consulting with qualified experts.
In this situation, was the duty of competence the only ethical duty breached? What about the duty to protect confidentiality? We divulge further into this hypothetical in our next post.
ILS – Plaintiff Electronic Discovery Experts
Did you know? CA Formal Opinion Interim No. 11-0004 lists 9 tasks that an attorney must perform themselves or through eDiscovery experts.