Ethics of e-Discovery (or, Teaching Lawyers Ballet)

“Watching an incompetent lawyer is like watching a clumsy ballerina.” 

Magistrate Judge John M. Facciola, February 4, 2009

Dancing Couple Magistrate Judge John M. Facciola’s keynote at Legal Tech 2009 had a call to action for lawyers to have certifications and standards of competence regarding technology. 

In light of how everyday life has changed from iPhones to DVRs to Facebook, it is no surprise you can see why Judge Facciola took this position. 

Cases such as Mancia v. Mayflower Textile Servs. Co., 2008 WL 4595175 (D. Md. Oct. 15, 2008 ), Covad Communications Company v. Revonet, Inc. 2008 U.S.Dist. LEXIS 104204 ( Dec. 24, 2008  ), Victor Stanley, Inc. v Creative Pipe, 2008 U.S. Dist. LEXIS (May 29, 2008 ) further highlight the need to understand not just the technology the clients are using, but the litigation support products the firm is deploying. 

The questions remains, how would certificates or competency standards be measured?  Who would manage such a system? 

History is helpful in coming up with a plan.

 In 1975, California was the first state to introduce the Professional Responsibility Examination, testing candidates on legal ethics and rules of professional conduct.  California enacted the “Ethics Exam” in response to many of the major players in Watergate being California attorneys.  Today, California’s continuing legal education requirements includes Legal Ethics, Detection/Prevention of Substance Abuse and Elimination of Bias in the Legal Profession.  These ethical requirements are managed under the existing CLE structure for California attorneys. 

 Just as the Bar reacted to the Watergate attorneys, State Bar Associations may have to take action against “technical incompetence.” 

 State Bar Associations across the country should consider requiring CLE course material specifically on the ethical duty of competency, specifically regarding technology.  Moreover, the legal justification for “technically competency” is arguably already an ethical requirement.  California Rules of Professional Conduct 3-110(B)(2) defines competence in any legal service as including “learning and skill.”  Additionally, subsection (C)(2) states:

If a member does not have sufficient learning and skill when the legal service is undertaken, the member may nonetheless perform such services competently by…2) by acquiring sufficient learning and skill before performance is required. CA Rules of Professional Conduct 3-110(C)

 The need to understand electronically stored information and technology was brought to life while talking with a lawyer a few months ago.  The lawyer said their client was a heavily regulated industry.  I would be shocked if this client did not use any software to track materials and for legal compliance.  The lawyer asked, “What if I decide e-Discovery is not important because I have paper invoices and logbooks?”

 The lawyer was blunt in saying he did not want to “deal” with e-Discovery. This lawyer was willing to dismiss all electronically stored information without consulting the client on what ESI existed, email archiving polices, whether they enacted a litigation hold, or doing any collection or review.

My first reaction for anyone thinking that is a good plan, please review Qualcomm Inc. v. Broadcom Corp., 2008 U.S. Dist. LEXIS 911 (S.D. Cal. Jan. 7, 2008).  Qualcomm stated, in relevant part:

“[An] Attorneys’ ethical obligations do not permit them to participate in an inadequate document search and then provide misleading and incomplete information to their opponents and false arguments to the court.”  Qualcomm Inc. v. Broadcom Corp., 2008 U.S. Dist. LEXIS 911 (S.D. Cal. Jan. 7, 2008).

One could argue a lawyer has made an “inadequate document search” if they do not have any discussions with their client on electronically stored information, enact a litigation hold, perform collection of ESI, or any review of e-Discovery.  Furthermore, by the virtue of their search being inadequate, the lawyer’s arguments to the court would at a minimum be false, if not outright misleading. 

I believe State Bar Associations are the ones in the best position to require e-Discovery continuing legal education courses.   Creating new agencies or oversight organizations might tax already tight state budgets.  While teaching lawyers not to be clumsy ballerinas will not be easy, adding 2 or 3 hours of e-Discovery courses on collection, technology or review probably will be the easiest song for lawyers to learn how to dance to.

One thought on “Ethics of e-Discovery (or, Teaching Lawyers Ballet)

  1. Waiting for state bar associations or law schools to act is like waiting for someone to build a time machine: good idea, might make an interesting movie, never going to happen in real life. Federal courts already have different levels of practice requirements. The Southern District of Texas requires attorneys seeking admission to attend a class on practice and procedures in that District, while the Southern District of Florida administers an entrance exam. The United States District Court for the District of Rhode Island requires candidates to both attend classes and pass an examination.
    Interestingly a JD is not required to sit for the patent bar and non-attorneys may appear in Patent Court if they pass an exam. The USPTO also requires that, to sit for the patent bar, each individual must have earned a bachelor’s or master’s degree in a “hard science” or engineering, or accrued a certain number of credits in undergraduate science courses; they also allow substitution of technical experience for technical education. Bankruptcy attorneys must take a 2 hour course to learn the ECF system before they can use that (mandatory) technological tool. And to argue before the US Supreme Court you must have the endorsement of 2 attorneys already granted that privilege.
    All of these seem to provide possible methods for imposing requirements before allowing anyone to make an ED argument. Judges started driving this bus, I’d let them set the ticket price.

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