Ediscovery Competency Standard Addressed by California Bar

Wednesday, September 2, 2015 by Thought Leadership Team


“Electronic document creation and/or storage, and electronic communications, have become commonplace in modern life…attorneys who handle litigation may not ignore the requirements and obligations of electronic discovery. A lack of technological knowledge in handling ediscovery may render an attorney ethically incompetent to handle certain litigation matters involving ediscovery, absent curative assistance.”

New California Ethics Opinion

With those words, earlier this summer the California State Bar officially addressed the ethical duties of counsel during ediscovery, and finally established competency standards for counsel in the Golden State. Although the opinion is advisory and non-binding upon courts, the opinion provides a much needed support structure in a field that has historically been faced with varied interpretations; it further serves as a major triumph for ediscovery gurus that have been pushing for a core standard for ediscovery.

Set within the parameters of a hypothetical bar exam question, the committee of the state bar's opinion went on to discuss the 9 defined skills that attorneys should be able to perform in ediscovery (either “by themselves or in association with competent co-counsel”):

  1. Initially assess ediscovery needs and issues, if any;
  2. Implement/cause to implement appropriate ESI preservation procedures;
  3. Analyze and understand a client’s ESI systems and storage;
  4. Advise the client on available options for collection and preservation of ESI;
  5. Identify custodians of potentially relevant ESI;
  6. Engage in competent and meaningful meet and confer with opposing counsel concerning an ediscovery plan;
  7. Perform data searches;
  8. Collect responsive ESI in a manner that preserves the integrity of that ESI;
  9. Produce responsive non-privileged ESI in a recognized and appropriate manner.

Expand your knowledge and expertise

Ultimately, this opinion reiterates that attorneys’ obligations evolve as new technologies develop and become integrated with the practice of law. To make sure you are staying up to speed, let us share our expertise with you. Kroll Ontrack offers customized Continuing Legal Education (CLE) courses on a myriad of EDRM (Electronic Discovery Reference Model) topics, free of charge. These 60 to 90 minute courses – taught by expert legal and technology professionals – are held in your office, exclusively for your legal and IT teams. If you are interested, contact our events team.