How the Ethics Rules Influence the Role of Discovery Counsel

Competent Representation

The sophistication of the discovery process is outpacing the competence of many general practitioners, and those who don’t keep up with the pace of change should welcomethe involvement of specialized discovery counsel. Competence is an ethical requirement in every legal representation. As ABA Model Rule 1.1 states, competence entails “legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” As in other areas of practice, competence must be developed or obtained in the field of discovery.

A recent change in the official comment to ABA Model Rule 1.1 emphasizes the importance of technological competence, stating the duty includes keeping abreast “of changes in the law and its practice, including the benefits and risks associated with relevant technology.” This specification creates a malpractice trap for unsuspecting litigators handling technical discovery functions without the background or assistance sufficient to the task.

The State Bar of California has taken things further, issuing guidance pertaining specifically to electronic discovery. In Formal Opinion 2015-193, the California State Bar’s Committee on Professional Responsibility and Conduct declared that an attorney’s obligations evolve as new technologies become integrated into the practice of law. As such, “[a]ttorneys handling e-Discovery should be able to perform (either by themselves or in association with competent co-counsel or expert consultants) the following:

• initially assess e-discovery needs and issues, if any;
• implement/cause to implement appropriate ESI [electronically stored information] preservation procedures;
• analyze and understand a client’s ESI systems and storage;
• identify custodians of potentially relevant ESI;
• engage in [beneficial ‘meet and confer’ discussions] with opposing counsel concerning an e-discovery plan;
• perform data searches;
• collect responsive ESI in a manner that preserves the integrity of that ESI; and
• produce responsive non-privileged ESI in a recognized and appropriate manner.”

Any attorney who manages the discovery process must have the requisite skills and expertise to provide meaningful oversight. Competence is also implicit in the certification and “reasonable inquiry” requirement of Rule 26(g) of the Federal Rules of Civil Procedure. One cannot competently supervise or certify activities one does not understand and does not take the time to learn, and all litigators should frankly assess their capability to handle the technical aspects of discovery.

The attorney supervising discovery must understand relevant technologies—those employed by the client to host discoverable information and those used by vendors to support discovery projects. She may not blindly approve methods or tools and must understand why they are the right ones to adopt. An attorney performing data collections must understand the types of accounts and systems involved to guide the proportionality assessment of what to collect and what to skip. The attorney employing predictive coding must understand basic information retrieval metrics and the sampling techniques in order to validate and certify the results.

The methods of technology-assisted review are improving all the time and offer several efficiencies, but advanced tools must be operated correctly or else they lead to time-consuming mistakes and controversies. Furthermore, the emerging practice of using “precision” and “recall” to evaluate predictive coding results has broad implications for all types of document productions—including traditional, linear review. These mathematical measurements are changing how we validate and defend discovery efforts of all types, opening new lines of attack that most litigators are unprepared to defend. Qualified discovery counsel understand this, and can help clients use technology to control costs, without leaving them exposed.

The attorney lacking technological competence can cause tremendous cost overruns. Poor data collections can lead to evidence spoliation and sanctions. Inadequate quality control can lead to unnecessary efforts. The misuse of predictive coding can lead to expensive disputes, and failure to use it can be a wasted opportunity. In Formal Opinion 2015-193, the State Bar of California said that attorneys handling discovery should know how to “produce responsive non-privileged ESI in a recognized and appropriate manner” (emphasis added). Given this benchmark, perhaps an attorney who fails to meet a reasonable standard of discovery practice could be liable for cost overruns regardless of the outcome of the case.

Reprinted with permission from the November 17, 2015 edition of Corporate Counsel ©2015 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 - reprints@alm.com or visit www.almreprints.com.

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