This post was written by Megan Zavieh and originally published on Lawyerist.com on July 22, 2015.
California’s proposed ethics opinion on attorney duties in e-discovery has been finalized. The opinion is unsurprising in terms of its analysis of today’s technology and long-standing ethics rules, and it highlights that in today’s world, discovery is extremely complex and high stakes.
In the Committee on Professional Responsibility and Conduct Formal Opinion No. 2015-193, California makes it abundantly clear that a lawyer who does not understand how electronically stored information is managed and retrieved for litigation purposes needs to get assistance before embarking on discovery in just about any matter. While there may not be electronic discovery in every case, every case does need to be evaluated for it, and when e-discovery is going to be conducted by either side, the lawyers involved need to understand (or get help in understanding) the way the information is stored, retained, deleted, and mined. The potential for ethics violations is extremely high, and with that potential comes incredible malpractice exposure.