Published in Thomson Reuters Practical Law

Most lawyers understand that their ethical obligation of competence requires a level of knowledge, skill, and preparation to handle any particular matter, whatever the complexities of that matter.  For the past two decades or longer, however, many lawyers have struggled with this long-established ethical principle in the face of rapid technological change.  Some lawyers may be ignorant of evolving technologies and their impact on litigation practice or fear them as unduly complex.  Indeed, for many litigators, e-discovery has remained terrain "where angels fear to tread" (United States v. O'Keefe, 537 F. Supp. 2d 14, 24 (D.D.C. 2008) (Facciola, Mag. J.)).

It is hard to imagine a litigation of any size or complexity where technology, specifically electronically stored information (ESI), does not come into play.  These issues are no longer relegated to substantial cases or large corporate matters; they pervade all litigation, particularly in a post-COVID world.  What client does not communicate via email and text message orengage in some form of social media?  And what lawyer has not conducted depositions, court hearings, or even trials via collaborative video technology?  Given the explosion of electronic platforms and increasing reliance on this ever-changing technology as a tool in virtually every aspect of litigation, technological ignorance is no longer an excuse for practitioners.

Rules and Guidance

While it is still an overstatement to assert that final direction has developed as technology is ever-evolving, most bar associations, state bars, and courts have issued guidance on what a lawyer's duty of competence means in the e-discovery context.  Notable advice includes the following, and each is described in more detail here:

• The American Bar Association's (ABA) revision to Comment 8 of Rule 1.1 of the Model Rules of Professional Conduct and subsequent opinions.
• Ethical opinions from the State Bar of California and other state bar associations.
• The 2015 amendments to the Federal Rules of Civil Procedure and subsequent case law.

ABA Model Rule 1.1

Model Rule 1.1 requires a lawyer to provide competent representation to a client.  This requires "the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation" (Model Rules of Prof'l Conduct R. 1.1).  Comment 8 to this rule clarifies that a lawyer must keep abreast of changes in the law and its practice as part of this duty.

In August 2012 the ABA further underscored the importance of technology in modern law practice by specifying that a lawyer's ethical obligation requires a reasonable understanding of "the benefits and risks associated with relevant technology" (Model Rules of Prof'l Conduct R. 1.1, cmt. 8).  The ABA's Committee Report accompanying amended Comment 8 stressed that:

"The proposed amendment … does not impose any new obligations on lawyers.  Rather, the amendment is intended to serve as a reminder to lawyers that they should remain aware of technology, including the benefits and risks associated with it, as part of the lawyer's general ethical duty to remain competent."

(ABA Comm'n on Ethics 20/20, Resolution & Report on Tech. & Confidentiality, at 3 (August 2012), available at americanbar.org.)

As subsequent opinions make clear, lawyers cannot abdicate their responsibility to understand technology or delegate that responsibility entirely to IT departments, outside vendors, paralegals, or secretaries.  As technology evolves, particularly in the area of cybersecurity, lawyers have more to monitor than ever before.  (See ABA Formal Ethics Op. 483 (2018) (duty to monitor for and respond to data breach); ABA Formal Ethics Op. 477R (2017) (securing communication of protected client information).)

State Bar Guidance

Most state bar organizations have provided some form of guidance on a lawyer's duty of technological competence.  Generally, they follow the ABA's approach, often adopting Rule 1.1 verbatim (see, for example, Del. Supreme Court, Order Amending Rules 1.0, 1.1, 1.4, 1.6, 1.17, 1.18, 4.4, 5.3, 5.5, 7.1, 7.2, and 7.3 of the Del. Lawyers' Rules of Prof'l Conduct, R.1.1, cmt. 8 (Jan. 15, 2013) (adopting cmt. 8 verbatim); Mass. Rules Advisory Comm., Proposed Revisions to Mass. Rules of Prof'l Conduct, R. 1.1, cmt. 8 (July 1, 2013) (proposing to adopt cmt. 8 verbatim)).  According to the ABA's list, as of March 2021, 38 states had adopted some form of statement about technological competence, while another eight states had adopted comments but no statement.

Furthermore, many states provide specific additional guidance defining competence with technology.  For example, in 2015, the State Bar of California issued an extremely influential formal opinion holding that a lawyer is not competent to handle complex cases involving ESI without sufficient understanding of the technical skills, knowledge, and aptitude required to conduct e-discovery (see Cal. State Bar Standing Comm. on Prof’l Resp. & Conduct, Formal Op. No. 2015-193 (June 30, 2015)).

The opinion stated that a lawyer undertaking complex litigation involving e-discovery should be able to perform at least nine specific tasks, including the ability to:

• Initially assess e-discovery needs and issues, if any.
• Implement or cause to implement appropriate preservation procedures.
• Analyze and understand a client's ESI systems and storage.
• Advise the client on available options for collection and preservation ESI.
• Identify custodians of relevant ESI.
• Engage in competent and meaningful meet and confer with opposing counsel concerning an e-discovery plan.
• Perform data searches.
• Collect responsive ESI in a way that preserves the integrity of that ESI.
• Produce responsive ESI in a recognized and appropriate manner.

(Cal. State Bar Standing Comm. on Prof’l Resp. & Conduct, Formal Op. No. 2015-193, at 2-4 (June 30, 2015), citing Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 685 F. Supp. 2d 456, 462-65 (S.D.N.Y. 2010).)

The opinion directs that lawyers "who handle litigation may not simply ignore the potential impact of evidentiary information existing in electronic form."  Instead, a lawyer who does not possess sufficient competency in these areas must elect one of three options:

• Acquire sufficient learning before undertaking the matter.
• Associate or consult with technical consultants and competent counsel.
• Decline the representation.

The opinion further directs that lack of competency in e-discovery matters can, in certain circumstances, result in ethical violations.  (Cal. State Bar Standing Comm. on Prof’l Resp. & Conduct, Formal Op. No. 2015-193, at 1, 7 (June 30, 2015), citing R. 3-110(C) ("a lack of technological knowledge in handling e-discovery may render an attorney ethically incompetent to handle certain litigation matters involving e-discovery, absent curative assistance … even where the attorney may otherwise be highly experienced").)

At least two states, Florida and North Carolina, require mandatory continuing legal education (CLE) that includes technology training (27 N.C.A.C. Ch. 1D, Section .1518 ("at least 1 hour shall be devoted to technology training as defined in Rule.1501(c) (17) of this subchapter and further explained in Rule .1602(e) of this subchapter"); In re Amends. to Rules Regulating The Fla. Bar 4-1.1, 6-10.3, 200 So. 3d 1225 (Fla. 2016) ("We amend subdivision (b) (Minimum Hourly Continuing Legal Education Requirements) to change the required number of continuing legal education credit hours over a three-year period from 30 to 33, with three hours in an approved technology program") (emphasis added)).

2015 Amendments to the Federal Rules of Civil Procedure and Subsequent Case Law

Given the numerous articles already written on the 2015 amendments to the Federal Rules of Civil Procedure and their impact on e-discovery, there is no need to repeat those insights here (see generally Amii N. Castle, A Comprehensive Overview: 2015 Amendments to the Federal Rules of Civil Procedure, 64 U. Kan. L. Rev. 837 (2016); Clare Kealey, Discovering Flaws: An Analysis of the Amended Federal Rule of Civil Procedure 37(e) and Its Impact on the Spoliation of Electronically Stored Evidence, 14 Rutgers J.L. & Pub. Pol'y 140 (2016); K. Alex Khoury, Electronic Discovery, 67 Mercer L. Rev. 859 (2016); Sarah Himmelhoch & Neeli Ben-David, Rule 26 Proportionality: Have the 2015 Amendments Brought Common Sense to the Preservation Obligation?, 68 DOJ J. Fed. L. & Prac. 81 (2020)).

While the changes to proportionality have rightfully garnered significant litigation attention, the changes to Rule 37(e) have also been extremely influential, particularly as new forms of ESI have become increasingly commonplace.  Consider, for example, text messages that are becoming as ubiquitous today as emails were a decade ago.  Numerous federal cases throughout the country have weighed in on the need to preserve text messages, and virtually all do so under the framework of Rule 37(e) (see Colonies Partners, L.P. v. Cty. of San Bernardino, No. 5:18-cv-00420-JGB (SHK), 2020 WL 1496444 (C.D. Cal. Feb. 27, 2020), report and recommendation adopted, No. 5:18-cv-00420-JGB (SHK), 2020 WL 1491339 (C.D. Cal. Mar. 27, 2020) (imposing sanctions under Rule 37(e) for spoliation of text messages); First Fin. Sec., Inc. v. Freedom Equity Grp., LLC, No. 15-CV-1893-HRL, 2016 WL 5870218 (N.D. Cal. Oct. 7, 2016) (same); Paisley Park Enters., Inc. v. Boxill, 330 F.R.D. 226 (D. Minn. 2019) (imposing sanctions under Rule 37(b) and 37(e) after rejecting the claim that the cell phones at issue were "personal" cell phones, since the cell phones were used for business purposes); Sinclair v. Cambria Cty., No. 3:17-CV-149, 2018 WL 4689111 (W.D. Pa. Sept. 28, 2018) (imposing sanctions for text message spoliation under Rule 37(e)).

Under the mandate of Rule 37(e), counsel must take "reasonable steps" to preserve ESI, and sanctions can be entered even without a finding of prejudice if the failure to take reasonable steps was intentional.  Therefore, technological competence is more important than ever, as even the failure to disable auto-delete settings can subject the client (and counsel) to sanctions (see Mod. Remodeling, Inc. v. Tripod Holdings, LLC, No. Civil Action No. CCB-19-1397, 2021 WL 3852323 at *10 (D. Md. Aug. 27, 2021) (imposing sanctions under Rule 37(e) and holding that "[f]ailure to either disengage the auto-delete setting or to back up messages to a cloud server prior to deleting them from a device 'is sufficient to show' that a defendant ‘acted unreasonably.'"). 

Other forms of ESI, such as social media, are not exempt from this requirement (see Torgersen v. Siemens Bldg. Tech., Inc., No. 19-CV-4975, 2021 WL 2072151 (N.D. Ill. May 24, 2021) (imposing sanctions under Rule 37(e) for intentional deletion of a Facebook page)).  In this day and age, it is simply not enough to tell a client to "preserve everything": counsel must provide further guidance, including but not limited to:

• Investigating any and all available forms of client ESI.
• Having sufficient knowledge to know where relevant information may exist.
• Informing the client as to how to preserve that information, including how to disable auto-delete.

(See DR Distributors, LLC v. 21 Century Smoking, Inc., 513 F. Supp. 3d 839 (N.D. Ill. 2021) (holding that reliance on the client’s representations was inadequate, ordering spoliation sanctions under Rule 37(e), and finding counsel to be so woefully uneducated as to technology that it ordered counsel to attend at least eight hours of continuing legal education on ESI).)

Best Practices

Now that lawyers' e-discovery responsibilities have come into clearer focus, counsel must face the continuing challenge of evolving technology while simultaneously adopting tangible best practices to ensure compliance with their ethical obligations. 

Aside from the obvious considerations of potentially neglecting their ethical duties, clients will increasingly hold responsible lawyers who fail in matters requiring technological competence (see, for example, Indus. Quick Search, Inc. v. Miller, Rosado & Algois, LLP, No. 13 CIV. 5589 (ER), 2018 WL 264111 (S.D.N.Y. Jan. 2, 2018) (allowing certain malpractice claims based on alleged negligence in e-discovery preservation to move forward)).  Additionally, "discovery on discovery" disputes are on the rise.  These disputes examine a party's collection, retrieval, and production efforts, and are costly, in terms of time, money, and reputation for lawyers and clients.  (For information on the key considerations for counsel seeking or resisting discovery about a party's efforts to preserve data and comply with discovery requests, see Practice Note, Discovery on Discovery (Federal).)

Moreover, recent cases demonstrate that courts are willing to impose severe sanctions for deficiencies in this area (see, for example, Staubus v. Purdue Pharma, L.P., Case No C-41916 (Tenn. Cir. Ct. Sullivan Cty. Apr. 6, 2021) (entering default judgment against pharmaceutical manufacturer for failure to conduct an adequate search for responsive information and making misleading statements regarding the same); DR Distributors, LLC v. 21 Century Smoking, Inc., 513 F. Supp. 3d 839 (N.D. Ill. 2021) (imposing evidentiary curative measures and awarding attorneys’ fees for spoliation of ESI); Charlestown Cap. Advisors, LLC v. Acero Junction, Inc., 337 F.R.D. 47 (S.D.N.Y. 2020) (awarding attorneys' fees and costs and ordering evidentiary preclusions for failure to take reasonable steps to preserve ESI)).  For information on which sanctions, and what standard, a court may impose when relevant evidence was destroyed or lost, see Spoliation Sanctions by US Circuit Court Chart.

In light of this guidance to define what competence means in the technological sphere (such as the nine subject matters enumerated by the State Bar of California), it is clear that mere knowledge of computers, email, and mobile devices, and even a basic understanding of information data storage, are insufficient to meet the ethical obligation of technological competence in the second decade of the new millennium. 

Therefore, all lawyers involved in litigation must step back and critically ask themselves whether they have the skill, knowledge, and ability to:

• Adequately interview a client's IT representatives to understand the client's fundamental IT issues, including the operation of any retention policies and the IT infrastructure.
• Assess where relevant ESI might be located, including non-traditional sources such as text messages or social media, and ensure that auto-delete functions are successfully managed.
• Identify the legal issues involved with the generation, receipt, transfer, storage, preservation, and destruction of ESI.
• Ascertain the impact of technology decisions, implementations, and changes on a client's legal rights and obligations.
• Ensure that the rights of a client and any non-parties (such as trade secrets, privilege, or privacy rights) are adequately protected in addressing the preservation, collection, and production of ESI.

In any given case, counsel should at least observe the following four directives for best ethical practices in litigation:

• Determine what preservation steps need to be taken as soon as possible in the course of litigation.  This includes considering not only any issues regarding a client's ESI, including the potential need to disable auto-delete functions, but also the need to put opposing parties and relevant non-parties on notice to preserve ESI.
• Engage opposing counsel early in the process.  Doing so permits counsel to:
  • reach agreements about ESI issues that could eliminate future unnecessary discovery disputes (for more information, see Article, Learning to Cooperate);
  • avoid possible sanctions or future challenges to the efforts made in the preservation, collection, and production of ESI; and
  • ensure appropriate protection of the rights and property interests of parties and non-parties.
• Assess whether to associate with more experienced and qualified counsel.  Counsel should consider whether they have sufficient knowledge and experience to meet e-discovery challenges. There are several law firms and lawyers who have specialized knowledge in the technology arena with whom less experienced counsel can associate. Taking this step comports with ethical requirements (see Model Rules of Prof'l Conduct R. 1.1, cmt. 2 ("[c]ompetent representation can also be provided through the association of a lawyer of established competence in the field in question"); see also Model Rules of Prof'l Conduct R. 1.1, cmt. 6 ("the reasonableness of the decision to retain or contract with other lawyers outside the lawyer's own firm will depend upon the circumstances, including the education, experience and reputation of the nonfirm lawyers")).
• Appreciate the complexities and nuances of the processes surrounding the identification, preservation, collection, review, and production of ESI.  This includes understanding how to implement preservation protocols, undertake defensible searches, and make productions effectively and in acceptable formats.  Inexperienced lawyers can:
• seek guidance and advice from experienced IT professionals within their practice and firm;
• build on their experience through continuing legal education courses, which are increasingly available to every practitioner nationwide (and are now required in at least two states); and
• take advantage of the many free opportunities for education from e-discovery vendors about specific systems, collection techniques, predictive coding, and a myriad of other specific issues.

Erica B. Zolner is a partner and Benjamin M. Redgrave is an attorney at Redgrave LLP. 

The views expressed in this article are those of the authors and not necessarily those of Redgrave LLP or its clients.