Providing competent representation in the digital information age.

• Author: Shelton, Gregory D.

THE RAPID growth of electronic discovery has brought with it additional challenges for in-house and outside counsel who represent clients in litigation. Counsel must remain diligent to keep up with this rapidly expanding and often changing field of law in order to provide competent representation to their clients. (1) According to the American Bar Association, nearly half of all malpractice claims involve some sort of serious error including "failure to know or properly apply the law, failure to know or ascertain a deadline, inadequate discovery or investigation and planning, or procedural choice errors." (2) The ABA's Model Rule of Professional Conduct 1.1, which has been adopted in most states, imposes an obligation on counsel to "provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation." (3) In addition to the ethical obligations imposed by the Model Rules, several recent court opinions have imposed specific duties on counsel with respect to electronic discovery. To avoid malpractice claims, judicial sanctions and ethical violations, litigation counsel can no longer avoid gaining knowledge about and competence with electronic discovery, computer terminology, and document management plans.

Know the Rules

Comment (6) to Model Rule 1.1 advises: "To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice ..." (4) It is readily apparent that in order to provide competent representation, an attorney must know the operable rules of civil procedure. Yet, in an October, 2006 survey of corporate counsel, less than half knew that amendments to the Federal Rules of Civil Procedure were due to go into effect on December 1, 2006. (5) The amendments, which are now in effect, require parties to address electronic discovery issues early in the litigation including scope of discovery, preservation of evidence, privilege issues, and format for production. (6) Parties now must provide "a copy of, or a description by category and location of ... electronically stored information" as part of their initial disclosures. (7) The Rules explicitly empower courts to enter the parties' agreements into case management orders. (8) They also provide for a bifurcation of discovery; permitting a party to produce reasonably accessible data, and hold back less accessible data until the cost of production and need for the data can be assessed. (9) The Rules now contain provisions regarding the procedure for addressing inadvertent production of privileged information. (10) Finally, the new Rules provide a sate harbor from sanctions for spoliation if electronic information is lost in the regular course of business. (11)

Several states have also adopted new electronic discovery rules in all or part of their state judicial systems. Texas (12) and Mississippi (13) have had specific provisions dealing with electronic discovery for several years. Idaho (14) and New Jersey (15) have recently enacted sweeping changes that are modeled, in part, on the new Federal Rules. New York (16) and North Carolina (17) have adopted electronic discovery rules in their specialty commercial and business courts. Other states around the country have either proposed amendments, or are contemplating changes. (18)

Counsel should also keep in mind the various burdens that they lace with respect to the admissibility of electronically stored information ("ESI"). In a recent opinion from the District of Maryland, Chief Magistrate Judge Paul Grimm denied both parties' summary judgment motions and set forth a detailed analysis of evidentiary issues as they relate to ESI. (19) The Chief Magistrate laments that it is unfortunate that "[v]ery little has been written ... about what is required to insure that ESI obtained during discovery is admissible ... because considering the significant costs associated with discovery of ESI, it makes little sense to go to all the bother and expense to get electronic information only to have it excluded from evidence or rejected from consideration during summary judgment because the proponent cannot lay a sufficient foundation to get it admitted." (20) Much of the opinion is devoted to issues that are not unique to electronic evidence (relevance, hearsay, probative value outweighing prejudicial effect), but it provides some helpful tips regarding authentication of e-mail, internet website postings, text messages and chat room content, computer stored records and data, computer animations and simulations, and digital photographs. Correctly collecting, preserving, and keeping a documented chain of custody are critical steps in the early stages of a litigation in order to utilize electronic information in motion practice and at trial.

Inquire, Investigate, & Discover

Comment (5) to Model Rule 1.1 states that "[c]ompetent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation." (21) There are few judicial opinions dealing directly with a lawyer's duty of competence as it relates to technological issues in discovery. Courts have recognized, however, that a failure to respond to discovery is a failure of competent representation. (22) Additionally, the "failure to understand what is required by the discovery rules demonstrates incompetence." (23)

As noted above, the comments to Rule 1.1 suggest that attorneys must "keep abreast of changes in the law and its practice ..." in order to provide competent representation. (24) Thus, as technology changes the way our clients do business and the way our peers practice law, our responsibilities change as well. For instance, the Conference of Chief Justices recently published Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information. (25) The Guidelines are not binding, nor are they model rules, but are simply an additional tool to assist state court judges "in identifying the issues and determining the decision-making...