By James A. Hennenhoefer
California adopted the federal Model Electronic Act on July 1, 2009. The federal system has been subject to the Model Act since 2006. Consequently, most of the federal Judges and many federal practitioners are much further along the ESI learning curve than our state Judges and state practitioners.
Since the date that California adopted the Model Act, many state level attorneys have adopted one of the following approaches:
- Ignore this, it does not involve any of my cases.
- I will agree with the other side to "opt out" of ESI, we will stipulate that our case will simply not "go there".
- Maybe it's time for me to retire.
The duties of counsel set forth in the Model Act and the applicable case law that has developed are duties owed by counsel to the court. Therefore, these duties cannot be waived or ignored by counsel.
A State Bar Ethics Opinion: 11-0004 cites Rule of Professional Conduct: 3-110(A). The opinion states that an attorney has an ethical obligation in almost every case to acquire an understanding of ESI and ESI discovery issues/duties.
The opinion further states that an attorney lacking the required competence has but three options:
- Acquire the required ESI learning and skills.
- Associate or consult with proper technical consultants or competent ESI counsel.
- Decline the client representation.
Lack of competence in eDiscovery can result in ethical violations, attorney state bar licensing issues, substantial attorney sanctions, spoliation of evidence, and violation of ESI duties owed by counsel under the Act to the court.