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New California eDiscovery Competence Proposed Opinion Has Been Revised – eDiscovery Trends

Last April, we reported on a new proposed opinion in California that required that attorneys in that state better be sufficiently skilled in eDiscovery, hire technical consultants or competent counsel that is sufficiently skilled, or decline representation in cases where eDiscovery is required. Now, that opinion has been revised and the comment period has been reset.

The California State Bar Standing Committee on Professional Responsibility & Conduct has released a new version of the Proposed Formal Opinion Interim No. 11-0004, which is designed to establish an attorney’s ethical duties in the handling of discovery of electronically stored information. Now, the first page of the opinion states:

“An attorney’s obligations under the ethical duty of competence evolve as new technologies develop and become integrated with the practice of law. Attorney competence related to litigation generally requires, among other things, and at a minimum, a basic understanding of, and facility with, issues relating to e-discovery, including the discovery of electronically stored information (“ESI”). On a case-by-case basis, the duty of competence may require a higher level of technical knowledge and ability, depending on the e-discovery issues involved in a matter, and the nature of the ESI. Competency may require even a highly experienced attorney to seek assistance in some litigation matters involving ESI. An attorney lacking the required competence for e-discovery issues has three options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation. Lack of competence in e-discovery issues also may lead to an ethical violation of an attorney’s duty of confidentiality.”

The proposed ethics opinion still includes the hypothetical situation discussed in the original version in which a lawyer agrees to opposing counsel’s search of his client’s database using agreed-upon terms with that lawyer mistakenly thinking that a clawback agreement offered by opposing counsel is broader than it is, and will allow him to pull back anything, not just protected ESI, so long as he asserts it was “inadvertently” produced. The remainder of the proposed opinion discusses the attorney’s duties regarding ESI, including the duty of competence and the duty of confidentiality.

The clock is reset and the committee is requesting comments on the revised opinion now through April 9 (by 5pm Pacific time). For more information and where to direct comments, click here.

So, what do you think? Will other states adopt similar ethics opinions? Please share any comments you might have or if you’d like to know more about a particular topic.

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