The following is a review by Diane Vlassis, JD, of the CLE entitled, "Texts, Lies and Backup Tapes: What You Must Know about E-Discovery to Prove Your Case and Avoid Big Mistakes," which both Sean Harrington and Ms. Vlassis attended:
On October 5, 2012, a one-hour CLE on the ethical implications of e-discovery was offered by the MSBA’s Solo and Small Firm Section at the MSBA Offices in Minneapolis. There were two presenters: Michael Arkfeld, J.D., Director of the Arkfeld eDiscovery and Digital Evidence Program (AEDEP) of the Arizona State University’s Sandra Day O’Connor College of Law in Phoenix, and Christine Chalstrom, J.D., proprietor of a litigation support company in Minneapolis.
Mr. Arkfeld opened the session by alerting the audience of the ABA’s August 6, 2012 adoption of additional language to comment 6 of the ABA Model Rule of Professional Responsibility 1.1: Competence. ABA Model Rule 1.1 requires an attorney to provide “competent representation to a client.” Comment : Maintaining Competence was amended to include a lawyer’s obligation to keep abreast of “the benefits and risks associated with relevant technology.”
This amendment was described by Mr. Arkfeld to be a strong reminder of the ethical duty attorneys already have to follow discovery rules for all evidence, digital or otherwise, under the general competency requirement of Model Rule 1.1. As applied to e-discovery, Mr. Arkfeld listed certain attorney misconduct to avoid under Model Rule 1.1 including the “failure to inquire into and understand your client’s and adversary’s IT infrastructure and practices.” He cited Qualcomm Inc. v. Broadcom Corp. No. 05cv1958-B (BLM), 2008 WL 66932 (S.D. Cal. Jan. 7, 2008), vacated in part, 2008 WL 638108 (S.D. Cal. Mar. 5, 2008) to support this conclusion. In this case Qualcomm was ordered to pay $8.3 million in sanctions for failing to turn over thousands of electronic documents that were responsive to defendant’s discovery requests. The federal magistrate found that Qualcomm had intentionally suppressed these documents, and the magistrate also sanctioned 6 attorneys, all outside counsel representing Qualcomm, for failing to comply with FRCP Rule 26(g), which mandates that the attorney conduct “a reasonable inquiry” to determine if the discovery submission is sufficient and proper. Fed. R. Civ. P. 26(g); Fed. R. Civ. P. 26 Advisory Committee Notes (1983 Amendment). According to Qualcomm, the sanctioned attorneys should have reviewed Qualcomm’s records to verify that the correct computers had been searched and that the appropriate search terms were used.
How can a solo practitioner or small law firm conduct a “reasonable inquiry” under FRCP Rule 26(g) to ensure that that a client’s electronic discovery submission is sufficient?
Mr. Arkfeld offers that Qualcomm Inc. v. Broadcom Corp., No. 05cv1958-B (BLM), 2010 WL 1336937 (S.D. Cal. Apr. 2, 2010), provides some guidance by indicating what the sanctioned counsel should have understood:
- “how Qualcomm’s computer system is organized”
- “where electronic mail is stored”
- “how often and to what location laptops and personal computers are backed up”
- “whether, when and under what circumstances data from laptops are copied into repositories what records are being kept regarding the search for and collection of documents”
- “what type of information is contained within the various databases and repositories”
- “what records are maintained regarding the search for, and collection of, documents for litigation”
Id. at Qualcomm, 2010 WL 1336937 at *2.
In addition, the 2010 Qualcomm opinion states that outside counsel is responsible for supervising and verifying that the necessary discovery, as planned, was indeed conducted. Id. Are there circumstances under which counsel needs to make an onsite visit to understand their client’s computer network? Mr Arkfeld says yes.
At this point in the CLE presentation, some members of the audience expressed concern about how the average attorney could possibly become technology savvy enough to meet the guidance offered in Qualcomm Inc. v. Broadcom Corp., No. 05cv1958-B (BLM), 2010 WL 1336937 (S.D. Cal. Apr. 2, 2010). The learning curve for understanding a “computer system” or network, such that an attorney can supervise and verify the adequacy of the e-discovery process, seems incredibly high. At this time, the second presenter, Christine Chalstrom JD, proposed an approach in the context of the services her company offers to assist attorneys comply with e-discovery obligations. Following Ms. Chalstrom’s presentation, a panel comprised of attorney-practitioners with experience in e-discovery challenges answered questions.
What I took away from this CLE, was an awareness of the need for attorneys to become educated and skilled enough to meet the ABA Model Rule 1.1 duty to keep abreast of the “benefits and risks associated with relevant technology” as applied to conducting e-discovery. Based upon the presentation, reactions of the audience, and attorneys I know, more training is necessary for the average attorney to conduct “a reasonable inquiry” to determine the adequacy of an e-discovery submission under Fed. R. Civ. P. 26(g), and most likely, equivalent state and local court rules. According to Mr. Arkfeld, judges as well as practitioners could benefit from tutelage on the nature of electronically stored information (ESI) and the considerations that must be taken to properly collect, produce and eventually offer and admit it in court. I could not help but think about the online Case Management (CM)/Electronic Case Filing (ECF) training offered by the federal courts to practitioners and their staff. Perhaps free or low-cost comprehensive online training would help bridge the e-discovery technology gap to assist attorneys in meeting their competence obligation of ABA Model Rule 1.1 as applied to e-discovery.