Esi: the Future Is Now*

• Publication year: 2015
• Author: James A. Hennenhoefer, Esq.

ESI: The Future is Now*

James A. Hennenhoefer, Esq.

James A. Hennenhoefer, a Certified Family Law Specialist, is a past National President of the American Academy of Matrimonial Lawyers, a Diplomate of the American College of Family Trial Lawyers, a Fellow of the International Academy of Matrimonial Lawyers, a Certified Matrimonial Law Mediator and Arbitrator, and a family law judge pro tempore and expert witness in San Diego County Superior Courts. San Diego Magazine named him one of the Top 25 attorneys in San Diego, and he's been named in Super Lawyers® and The Best Lawyers in America since their inception. He is a recognized expert on ESI, E-Discovery and Evidence issues.

California adopted the federal Model Electronic Act on July 1, 2009. The federal system has been subject to the Model Act since 2006. Consequently, most of the federal Judges and many federal practitioners are much further along the electronically stored information, or ESI, learning curve than our state judges and state practitioners.

Since the date that California adopted the Model Act, many state level attorneys have adopted one of the following approaches:

1. Ignore this, it does not involve any of my cases.
2. I will agree with the other side to "opt out" of ESI, we will stipulate that our case will simply not "go there."
3. Maybe it's time for me to retire.

The duties of counsel set forth in the Model Act and the applicable case law that has developed are duties owed by counsel to the court. Therefore, these duties cannot be waived or ignored by counsel.

A State Bar Ethics Opinion: 11-0004 cites Rule of Professional Conduct: 3-110(A). The opinion states that an attorney has an ethical obligation in almost every case to acquire an understanding of ESI and ESI discovery issues/duties

The opinion further states that an attorney lacking the required competence has but three options:

1. Acquire the required ESI learning and skills.
2. Associate or consult with proper technical consultants or competent ESI counsel.
3. Decline the client representation.

Lack of competence in eDiscovery can result in ethical violations, attorney state bar licensing issues, substantial attorney sanctions, spoli-ation of evidence, and violation of ESI duties owed by counsel under the Act to the court.

Counsel's duties, pursuant to the Model Act, are vastly different from those imposed in our previous "paper" world. The Model Act is a departure from the usual statutes created by a legislature. The Act was created not by a...