Why Esi Scares Me as a Solo Practitioner

• Publication year: 2017
• Author: Stephen D. Hamilton

Why ESI Scares Me as a Solo Practitioner

Stephen D. Hamilton

Stephen D. Hamilton has been an attorney for 22 years, with a practice devoted almost exclusively to family law for 20 of those years. He has been a Certified Specialist in Family Law since 2004. He is currently a member of the California Family Law Executive Committee, for which he is the Legislation Chair. He is a member of ACFLS and serves on the ACFLS Outreach and Amicus Committees. He is also chairperson of the San Luis Obispo County Family Law Section.

ESI, or "Electronically Stored Information," frightens me. I am afraid because the California State Bar has told me to be afraid. Each of us has specific, mandatory responsibilities when it comes to identifying, producing and securing our client's ESI. The scope of those responsibilities can be daunting for the solo practitioner.

I am confident I am not alone in my fear. I recently presented "Ten Things You Need to Know about ESI" to the San Luis Obispo County Family Law Section. Midway through my presentation, I noticed concerned looks and ashen faces in the audience. I halted my presentation and asked the attendees what they thought so far of the topic. The most memorable response: "This is scary stuff." On one of the Activity Evaluation Forms, an attendee wrote, "Terrifying."

What is intimidating to me and other solo practitioners is the tremendous amount of responsibility we now have regarding our client's ESI. Understanding what ESI is and what responsibilities we have as counsel are crucial. ESI consists of any information stored electronically, including:

• Computer records and metadata;
• Cell phone data (including voice mails, photographs, text messages and records of telephone calls);
• Electronic mail;
• Accounting data, including bookkeeping program files and banking records;
• Social media; and,
• Digitally stored photographs and videos.

This is by no means an exhaustive list, but one intended to indicate the expansive scope of ESI.

Our current duties as attorneys regarding ESI are set forth in Formal Opinion No. 2015-193 of The State Bar of California Standing Committee on Professional Responsibility and Conduct. That opinion interprets Rules 3-100 and 3-110 of the Rules of Professional Conduct as they apply to electronic data. In summary, Formal Opinion No. 2015-193 concludes that to be competent and satisfy the ethical duties regarding ESI, attorneys must:

1. Have at a minimum a basic understanding of ESI to assess at the outset of each case what...