E-Discovery & Legal Ethics – What to Do About It Part 1: Assessing ESI in a Case

August 19, 2015

Much has been written about recent legal ethics opinions, such as State Bar of California Opinion CAL 2015-193, addressing an attorney’s duty of competence as it relates to e-discovery and electronically stored information (ESI). However, much less has been written about how to become more competent in e-discovery matters.

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In short, the California ethics opinion states that an attorney lacking familiarity with e-discovery is required to 1) acquire sufficient learning and skill before handling matters involving e-discovery; 2) associate with or consult with technical consultants or competent counsel, or 3) decline the representation.

The opinion states that lawyers handling cases involving e-discovery must be able to handle certain e-discovery tasks either by themselves or in association with co-counsel or e-discovery consultants. If they cannot, they may lack the competency to handle the case. The tasks are:

initially assess e-discovery needs and issues, if any, and analyze and understand a client’s ESI systems and storage;
direct the implementation of appropriate ESI preservation procedures and advise the client on available options for collection and preservation of ESI;
identify custodians of potentially relevant ESI;
engage in competent and meaningful meet and confer with opposing counsel concerning an e-discovery plan;
collect responsive ESI in a manner that preserves the integrity of that ESI;
perform data searches; and
produce responsive non-privileged ESI in a recognized and appropriate manner.

Although the California opinion is one of the first to directly address e-discovery competency, others are certain to follow. Many states are considering amendments rules of professional conduct based on comments to Model Rule of Professional Conduct 1.1 (Competency) that lawyers must stay abreast of developments in legal technology.

But, just saying lawyers must stay abreast of legal technology gain and a working knowledge of selected e-discovery activities is not helpful for attorneys unfamiliar with e-discovery in the first place. In a series of posts, we will discuss each of the e-discovery activities identified in the California opinion and offer suggestions and points to consider when learning about them.

We begin with the assessment of e-discovery needs and issues presented by a case.

Consider Nature of Case and Necessary Documentary Evidence

The first step in identifying the e-discovery needs of a case is to consider the nature of the case and whether it is likely to involve significant amounts of documents. For some cases, this is an easy exercise. Patent litigation, by its very nature, is likely to involve voluminous electronic documents. On the other hand, a single plaintiff’s personal injury action is less likely to involve extensive ESI. However, it is the cases in between that require some thought. For instance, what an attorney thinks is a simple breach of contract case may have more ESI than one might guess.

This first step, considering the nature of the case as it relates to e-discovery, may seem obvious but the gist of many e-discovery ethics opinions and sanctions orders entered as a result of mishandling e-discovery boils down to a simple proposition: e-discovery cannot be an afterthought.

Indeed, a recent survey of federal judges by e-discovery software developer Exterro found that 81% of them believed e-discovery mistakes happened early in a case. This is probably so because too often attorneys do not consider e-discovery aspects of a case until discovery deadlines loom. At that point, decisions are rushed and important e-discovery tasks are overlooked. Much of this can be avoided by becoming familiar with the scope of ESI at the outset of a case. This is accomplished largely by considering and planning for e-discovery issues ahead of time in conjunction with the client.

To determine the extent of potential e-discovery in case, an important question to ask is what type of documentary evidence is needed to prove or defend it? The answer to this question is a good starting point for discussions with clients about the extent of potentially relevant ESI that must be collected, reviewed, and ultimately produced in litigation.

Discuss ESI With the Client Early

As foreshadowed above, discussions with the client about e-discovery issues must occur early in a case. Once you have considered the nature of your case and the documents needed to properly litigate it, you must discuss them with your client. Beyond guidance to find documents needed to win a case, clients can also help identify other types of documents that are potentially relevant to the legal matter and of which attorneys are not necessarily aware.

To facilitate the identification of potentially relevant documents, attorneys should discuss the client’s practices, procedures, and processes and the documents involved at every stage. This will help identify categories of documents that must be located and collected for document review. Clients should also identify formats in which potentially relevant ESI is kept.

Understand the Software the Client Uses

To identify e-discovery needs and issues in a case, the client’s use of the software must also be examined. What word processing, spreadsheet, and presentation software is used? Is Customer Relationship Management (CRM) software used? Does the client utilize any Software as a Service (SaaS) applications?

It is also important is to determine whether the client uses any unique or custom software or hardware. For instance, does the client use unique or custom-made database programs or computer-aided drawing programs such as AutoCAD? This is very important to know because special expertise may be needed to collect data maintained within these programs.

Understand Where and How the Client Saves Data

Attorneys should also have a working knowledge of the client’s network structure and how and where information is stored. Indeed, the California ethics opinion states that attorneys must be able to “analyze and understand a client’s ESI systems and storage.” If the client is a business organization, it may have a data map describing its network.

Identify the Number of Data Custodians and Determine What Documents They are the Likely to Possess

Another topic of discussion with the client is the identification of all potential data custodians. Or, stated another way, identifying potential witnesses and determining what kind of documents are they expected to possess. It is important to identify ESI custodians early in the process to come to terms with the complexity and volume of the document collection. Once custodians are identified, custodian interviews or ESI questionnaires should be utilized.

What Type of Email Does the Client Use?

It goes without saying that email is often a good chunk of ESI collected reviewed and produced in litigation. As a result, one of the first things an attorney should know is what type of e-mail the client uses. Is it cloud-based such as Gmail or Outlook 365, or does the client maintain the email server internally? Although email is generally not the most difficult ESI to collect, knowing the type of email server used by the client will help plan collection efforts.

How Does the Client Communicate with Others?

The client should also explain how they communicated with others about the subject matter of the litigation. If the client is a business entity, attorneys will need to know how employees communicate internally. Email? Instant messaging? Text messaging? Does the client use project management and communications platforms such as Slack or Trello?

Is There Potentially Relevant Social Media?

Attorneys must also identify the nature and extent of communications via social media that may be relevant to the litigation. Again, this information is needed to properly assess e-discovery needs because social media may pose special problems relating to access and collection.

What Electronic Devices Does the Client Use?

Clients should also identify all devices that may have potentially relevant ESI. Is use limited to work computers or personal devices? Clients should also identify tablets and handheld devices that might contain relevant information.

Voicemail

If the client uses VoIP (voice over internet protocol) services for telephone or has the ability to retain voicemail, the extent of any potentially relevant voicemails should be investigated.

Back-up and Retention Policies

Attorneys should also understand how the client backs up data and what information is archived. Although litigants are generally only obligated to produce “reasonably accessible” ESI, attorneys should understand the nature and location of all potentially relevant data even if it will never see the light of day.

To get a handle on ESI related to a legal matter, attorneys should also have a firm understanding of clients’ document retention and destruction policies and practices.

Next Step…Preservation

Once the extent and nature of the ESI relevant to a case is ascertained, the next step is preserving it and implementing litigation hold procedures which will be discussed in the next article in this series.

Attorneys Need Not Go it Alone

To the uninitiated, e-discovery may seem daunting, but attorneys need not go it alone. As the California ethics opinion notes, attorneys may associate co-counsel or consultants to assist with e-discovery issues. Percipient provides managed document review services and included in those services is advice and consultation regarding matters relevant to e-discovery issues and ESI protocols. We are available to participate in a pre-discovery meet and confer conferences and are prepared to act as a point of contact with litigation opponents regarding e-discovery issues. Percipient is founded and run by lawyers, so not only do we have a strong grasp of legal technology, but we also have many years of actual litigation and e-discovery experience.

We would love to learn more about your document review projects and find out if we can help. Contact us at 800.971.2291 or here.