Fans of the NBC hit series “The Office” may recall Dwight Schrute’s family mantra: (singing) “Learn your rules. You better learn your rules. If you don’t, you’ll be eaten in your sleep.” (chomping sound)
It’s been nearly 10 years since the Supreme Court of the United States approved amendments to the Federal Rules of Civil Procedure to add language addressing electronically stored information, or ESI. At the time, we had not been introduced to Twitter, Facebook was celebrating its second birthday, and the mobile devices that have become ubiquitous in our society did not exist. Even practitioners who tried to learn and abide by the rules were uncertain as to their application.
Recent FRCP amendments, effective December 2015, clarify ESI obligations. The rules re-introduce traditional concepts of flexibility and proportionality to ESI obligations. These include:
Rule 26(b)(1): “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claims or defense and proportional to the needs of the case … .” (Emphasis added) In restoring proportionality, the committee recognized that the burden and expense of producing ESI is a significant factor to be weighed.
Rule 37(e): Creates a uniform standard for spoliation sanctions when ESI “that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery.” The amended rule specifies curative measures for the lost ESI that are commensurate with the intent to deprive the requesting party of the information and the resulting prejudice suffered.
It is an ethical imperative that all attorneys understand these ESI rules. Two specific areas are highlighted herein. First, a lawyer’s fundamental duty of competency specifically extends to ESI issues. Second, a lawyer’s obligation to act diligently in representing a client includes the early identification and preservation of ESI.
The duty of competency
Rule 1.1 of the ABA Model Rules of Professional Conduct mandates, “[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” In August 2012, the ABA amended Comment 8 to Rule 1.1 to specifically address attorney competence in handling technology:
“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 … .” (Emphasis added)
Many lawyers downplayed the significance of this change. In the past four years, however, at least 15 states amended their ethical rules or issued ethics opinions applying attorney competence rules to technology.
California’s Standing Committee on Professional Responsibility and Conduct issued Formal Opinion No. 2015-193, entitled “What are an attorney’s ethical duties in the handling of electronically stored information?” The opinion provides that competence requires, “at a minimum, a basic understanding of, and facility with, issues related to e-discovery, including the discovery of [ESI].” These obligations continue to evolve as new technologies develop. Indeed, “[c]ompetency may require even a highly experienced attorney to seek assistance in some litigation matters involving ESI.” The opinion concludes, “[a]n attorney lacking the required competence for e-discovery issues has three options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation.”
District Judge Shira Scheindlin of the Southern District of New York analyzed the discovery obligations associated with the production of emails in Zubulake v. UBS Warburg LLC. Judge Scheindlin held that an attorney’s competency extends to “becom[ing] fully familiar with her client’s document retention policies, as well as the client’s data retention architecture.” Stated differently, counsel must learn how their clients create, use, retain and delete their data so that discoverable ESI can be preserved, collected and produced. These same requirements are now incorporated into FRCP 26. Countless decisions post-Zubulake underscore the risks associated with failing to meet these obligations.
The duty of diligence
Model Rule 1.3 provides that “[a] lawyer shall act with reasonable diligence and promptness in representing a client.” Model Rule 3.4 states that a lawyer shall not “unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value” or “fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party.”
FRCP 26(b)(1) requires that potentially relevant evidence, including ESI, be preserved and attorneys are expected to work closely with their clients to identify and collect relevant ESI. This preservation obligation begins when litigation is imminent. Counsel must make reasonable inquiries to identify and preserve potentially relevant materials by (1) physically sequestering the materials and suspending document destruction policies, and (2) implementing a legal hold on the key document custodians and systems.
Attorneys are also obligated to collect ESI (and, potentially, associated metadata) using a reliable and defensible process. Counsel must ensure ESI is collected properly to avoid spoliation or employ professional litigation support personnel to assist with the document collection.
There are unique challenges associated with ESI that will continue to grow as new technologies emerge. Every attorney has an ethical obligation to “learn their ESI rules.” These obligations are not new. They flow directly from an attorney’s duty of competency and diligence. Attorneys who fail to “know their ESI rules” (or associate with an outside consultant who knows them) risk malpractice … and may get chomped.•
• Hamish Cohen and Jon Mattingly are founding partners and directors of the law firm of Mattingly Burke Cohen & Biederman LLP and ESI consultant Proteus Discovery Group LLC. Through both companies, Jon and Hamish bring their experience with ESI to work with lawyers and clients in order to manage data protocols and discovery. The opinions expressed are those of the authors.