We previously wondered whether failing to keep up with technology could subject a lawyer to discipline or malpractice. There aren't a whole lot of state bar opinions on the topic. Really, the only time a court has weighed in was Zubulake v. UBS Warburg (Zubulake V), where a federal district court admonished in-house counsel for not knowing how the corporation's backup tape retention system worked, leading to the loss of highly probative evidence. Counsel failed so spectacularly that the court granted a jury instruction allowing jurors to infer that the really sexy smoking guns the plaintiff wanted were contained on those tapes.
In order to make clear that lawyers need to know what they're doing, the State Bar of California has proposed a Formal Opinion on lawyers' duties to handle electronic discovery, in order to delineate what a lawyer needs to know about e-discovery to remain ethical.
We've Got a Situation Here
The Proposed Opinion concerns a pretty common fact pattern: Plaintiff and defendant agree on an e-discovery arrangement that would allow plaintiff to use an outside vendor to search the defendant's network for files containing certain keywords. Except, plaintiff's attorney doesn't really understand the scope of the agreement or even how to interpret the information that comes out of the discovery. He eventually finds out that the breadth of the agreement allowed the plaintiff access to proprietary information not relevant to the lawsuit, and because he didn't review or understand the defendant's data retention policy, relevant information was deleted during the normal course of business.
Affirmative Duties to Understand
The State Bar of California suggested that attorneys handling e-discovery must be able to do a whole host of discrete tasks, including implementing preservation procedures, identifying relevant and irrelevant electronic data, and understanding the client's data storage system. Basically, as with any tasks an attorney undertakes, if an attorney is going to be engaging in e-discovery, then she must know what she's doing. The attorney in the hypothetical didn't even know what he didn't know, but once e-discovery became an issue, the attorney was obligated to either consult with competent counsel or find an expert.
Moreover, the failure to understand e-discovery implicates not only attorney-client privilege and the work product doctrine, but the attorney's other fiduciary duties to the client. E-discovery has the potential -- like in the hypothetical -- to expose the client's trade secrets to a third party. In addition to the technology, attorneys have to understand the concepts underlying the e-discovery procedures themselves, including clawback provisions and state implementation of inadvertent disclosure rules. Inadvertent disclosure, in particular, is fraught with danger: Once seen, a highly probative bit of evidence can't be unseen.
It gets worse. An attorney's failure to create a sufficiently precise e-discovery agreement could mean that disclosure of privileged or proprietary information wasn't inadvertent, since it was discovered pursuant to a flawed, but agreed upon, arrangement, said the State Bar. This transforms the agreement into essentially a waiver of privilege.
What Does a Competent Lawyer Do?
The Proposed Opinion reads like a lawyer's version of Goofus and Gallant. So what does Gallant do in this case? Gallant understands how e-discovery works, how his client's systems work, and how the opposing side's systems work. Gallant reviews discovery agreements to make sure they're narrow in scope. He also knows when he's in over his head and it's time to consult an expert. A competent attorney doesn't have to know everything, but he has to know enough to be able to make reasoned decisions.
August 29, 2014 Editor's Note: This post has been edited to reflect the fact that Opinion 11-0004 is not yet a Formal Opinion, but is still a Proposed Opinion, awaiting the completion of the opinion process.
- 5 Daunting Problems Facing Ediscovery (The Ediscovery Blog)
- Are the FRCP Amendments the Answer to Yesterday's E-Discovery Problems? (E-Discovery Beat)
- How To Be an e-Discovery 'Shark' (FindLaw's Technologist)
- e-Discovery 101 for the In-House Attorney (FindLaw's In House)