Electronically Stored Information and the Duty of Competence

Ryan Stahl, Scherer Smith & Kenny

California Rule of Professional Conduct 3-110 (“Rule 3-110”) states that “[a] member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence.” Every attorney considers this duty on a daily basis in the practice of law.

While for many this duty is second nature, rapidly changing technology can quickly strip away any level of comfort, especially as it may impact evidentiary preservation obligations associated with electronically stored information (“ESI”). How might things like “metadata,” “native format,” “near native format,” and “de-NISTing” affect Rule 3-110 obligations?

In June 2015, the State Bar of California Committee on Professional Responsibility and Conduct (COP-RAC) issued Formal Opinion No. 2015-193 (Opinion 2015-193) addressing an attorney’s ethical duties in the handling of ESI.

COPRAC noted that while an isolated failure to recognize the importance of ESI-related concepts may not constitute a violation of Rule 3-110, all attorneys nevertheless have an obligation to keep abreast of relevant technological developments. (See ABA Model Rule 1.1, Comment [8].) Based on this obligation as well as the widening recognition of the impact of ESI on litigation as reflected in part by the 2009 amendments to the California Code of Civil Procedure, COPRAC noted Rule 3-110 requires all attorneys to gain certain minimal competencies related to the handling of ESI.

Specifically as these obligations relate to e-discovery, attorneys should be able to perform a variety of tasks related to litigation. These include conducting initial ESI assessments; implementing ESI preservation procedures; under-standing of how a client’s ESI systems and storage operate; advising on the collection of data; identifying custodians; meeting and conferring regarding ESI; searching and handling data while maintaining its integrity; and providing responsive ESI in an appropriate manner. If an attorney is unable to do any of these tasks, he or she must associate co-counsel or retain someone with adequate knowledge to do so. In listing these competencies, COPRAC noted they apply only to an attorney’s handling of his or her own client’s ESI and could not therefore be wholly applied to an attorney seeking electronic discovery from an opponent or third party.

While Opinion 2015-193 is not comprehensive, it provides California attorneys, and litigators in particular, with a roadmap of obligations related to the handling of ESI. As COPRAC further noted, the level of competence to be demonstrated related to ESI varies from case to case depending on the issues. Given the ubiquitous nature of electronic communications, all California attorneys should develop and maintain the competencies necessary to understand and work with ESI and related technology.

For further reading, see Opinion No. 2015-193; California Code of Civil Procedure Section 2031.010 et seq.; the text of and commentary to Federal Rules of Civil Procedure 26, 33, 34, and 37; and Zubulake v. UBS Warburg LLC (S.D.N.Y. 2003) 217 F.R.D. 309 and its progeny.

About the author: 

Ryan Stahl is an associate at Scherer Smith & Kenny in San Francisco. He practices civil litigation, with a focus on employment law and anti-SLAPP litigation.