There is an apparent paradox inherent to the California Bar's opinion on the ethical duties of attorneys to handle ESI in discovery.
On the one hand, it tells lawyers who don't possess a "sufficient" understanding of e-discovery issues in a particular case that they may meet that duty of competence "through association with another lawyer or consultation with an expert."
On the other, it makes plain that a) attorneys have a duty to supervise subordinate attorneys and non-attorneys, including technical consultants, vendors, etc. and b) at the end of the day, a mistake made by any of those subordinates is a mistake made by the supervising attorney. The ultimate responsibility to assure a client is competently represented rests with the supervising attorney. Period.
Are those two positions reconcilable? Can an attorney who doesn't possess "sufficient" knowledge of electronic discovery adequately fulfill a supervisory role? Or is it actually the case that all lawyers who take on a case involving electronic discovery must have a "sufficient" understanding of the issues, irrespective of the expertise of her associates and collaborators?
To be sure, there is a very fine distinction to be made here that the California Bar committee commendably attempts to address. But that tact doesn't necessarily translate beyond the opinion itself.
The elevator pitch that has emerged in the 18 months since the original draft surfaced is this: If you don't understand the basics of electronic discovery, either learn them or hire a vendor, or decline the representation.
That thumbnail has been sketched in ink by commentary of some vendors and experts that see the opinion as a ringing endorsement for their services (which, it is).
Consider the general direction of these these passages, which reflect the commentary at large:
"Attorneys don't need to be technology whizzes to handle electronic discovery in litigation, but they do have an ethical obligation to know when to seek outside help, according to e-discovery guidance proposed by the State Bar of California."
"Because discovery of electronically stored information is now a frequent element of litigation, trial attorneys must be knowledgeable about the requirements and obligations of electronic discovery or should hire someone to help them with the process..."
One headline simply reads, "Competence: Acquire it or hire it!"
It would not be hard to see how these commentaries could be misconstrued to read: Either learn about electronic discovery or hire an eDiscovery maid to do it for you.
And that's a real dangerous proposition -- because an attorney who doesn't have a basic or "sufficient" understanding of the discovery issues in her own case, it can be argued, can't possibly fulfill a supervisory role, and is risking her reputation to boot. There are a number of cases hammering attorneys for blindly relying on outside help -- experts even. In Thorncreek Apartments, counsel tried and failed to persuade a court that their reliance on a vendor should be the deciding factor in weighing against a privilege waiver. In Peerless Industries, a federal court imposed a sanction on a party for taking "a back seat approach and instead let(ting) the process proceed through a vendor." The Peerless court concluded that parties "cannot place the burden of compliance on an outside vendor and have no knowledge, or claim no control, over the process.”
Both those cases involved well-regarded service providers, the type to which the California Bar is referring when it describes "expert consultants." But well-regarded service providers can only get you so far.
Heavy is the head...
Supervising attorneys take on the risk and responsibility for discovery. That's just how it works. By signing a discovery disclosure, the attorney is certifying -- with his or her neck on the line -- that "to the best of the person's knowledge, information, and belief formed after a reasonable inquiry..., the disclosure... is complete and correct as of the time it is made." (See FRCP 26(g))
There is perhaps a complacency setting in around electronic discovery. It is not new. It doesn't much change. It is competing against other, sexier data risks (privacy, data breach). And given the proliferation of experts and expert vendors, and in light of Federal Rules changes that can be construed to endorse speed over thoroughness and defanged sanctions standards, there is a temptation to just let those guys deal with it.
But just last week, a federal court in San Diego stuck a pin in that apocryphal safety bubble, recommending the kind of draconian sanctions that harken back to the days of Qualcomm and Zubulake and J-M Manufacturing. Attorneys for defendants R.F. Technologies were found to have failed to produce more than 375,000 pages of ESI because they neglected to perform quality control checks or to supervise their vendor, fellow attorneys or client.
"I didn’t conduct the ESI search, so I don’t know the methodology," counsel for R.F. Technologies told the court. "(Employees) were told to look for documents on their computer. They did so and we produced them. [T]hey obviously conducted the search and produced what they had."
The lesson, driven home by the court's own references to the California opinion, is this: Outside vendors and consultants aren't windup monkeys you can point in the general direction of your ESI and say "go to it."
How did you preserve client files? When did the holds go out? How often did you follow up? How did you conduct the search? What were you looking for and how did you identify it? The answers to these questions require, it can be argued, more than just a "basic understanding" of electronic discovery -- and counsel have an obligation to know them, regardless of their collaborators' expertise.
So if you only read one sentence from the California opinion, read this one:
This consultation or association, however, does not absolve an attorney’s obligation to supervise the work of the expert under rule 3-110, which is a non-delegable duty belonging to the attorney who is counsel in the litigation, and who remains the one primarily answerable to the court.
To be sure, a lot of the opinion's guidance is shaped, and can be interpreted, by semantics. What does "sufficient" mean? And "basic?" But there's nothing uncertain about "the one primarily answerable to the court."
The opinion is well-reasoned and essential reading for all litigators, inside of California and out. But if there is a nit to be picked, it is in the language of the opening digest. Perhaps it should read as follows:
"An attorney lacking the required competence for e-discovery issues has three options must either: (1) acquire sufficient learning and skill before performance is required; (2) and associate with or consult technical consultants or competent counsel if necessary; or (2) decline the client representation.