Evolving Responsibilities for Attorneys in ESI Discovery
Mark E. Bale, Esq.
Schwartz Semerdjian Cauley & Moot, LLP
Not long ago, discovery of electronically stored information (“ESI”) was largely reserved for complex, technical litigation matters. With more and more clients “going green” and eschewing hard copy paper records for electronic or computer stored files, and with the ubiquitous use of e-mail as a means of written communication, ESI discovery issues now arise, to some extent, in nearly every case. The prevalence of ESI has created unique challenges and heightened expectations for attorneys dealing with ESI in the discovery context.
General Ethical Considerations
The State Bar of California Standing Committee on Professional Responsibility and Conduct recently issued a formal opinion (“Formal Opinion No. 2015-193”) which addresses several issues related to the ethical duties of an attorney in dealing with ESI discovery.1 While the opinion is advisory only, and not binding upon the courts, the opinion should be consulted by attorneys as a roadmap for handling ESI discovery responsibly.
Pursuant to California Rules of Professional Conduct, Rule 3-110, attorneys have an ethical duty of competence in their performance of legal services. “Competence” in any legal service applies to, among other things, the attorney’s “learning and skill” reasonably necessary for the performance of the services. (Rule 3-110(B).) According to Formal Opinion No. 2015-193, the ethical duty of competence requires and attorney to assess at the outset of each case what ESI issues might arise during the litigation, including the likelihood that e-discovery will or should be sought by either side. If e-discovery will be sought, Formal Opinion No. 2015-193 suggests that the duty of competence requires an attorney to assess his or her own e-discovery skills and resources as part of the attorney’s duty to provide the client with competent representation. If an attorney does not have sufficient learning and skill associated with the relevant technological aspects of the ESI involved in the case, Formal Opinion No. 2015-193 sets forth three alternatives for the attorney: 1) associate with or consult with another lawyer or consultant reasonably believed to be competent (Rule 3-110(C)); 2) acquire sufficient learning and skill before performance is required (Rule 3-110(C)); or 3) decline the representation. Therefore, depending on the technical complexity of the case, and the nature in which ESI is created, stored and maintained by the client and/or the other parties to the case, it may not only be prudent for an attorney to engage the assistance of a technical/ESI consultant, but it may be required in order to meet one’s ethical duty of competence in representing the client.
Formal Opinion No. 2015-193 states that attorneys handling e-discovery should be able to perform (either by themselves or in association with competent co-counsel or expert consultants) the following:
- Initially assess e-discovery needs and issues, if any;
- implement/cause to implement appropriate ESI preservation procedures;
- analyze and understand a client’s ESI systems and storage;
- advise the client on available options for collection and preservation of ESI;
- identify custodians of potentially 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 manner that preserves the integrity of that ESI; and
- produce responsive non-privileged ESI in a recognized and appropriate manner.
The challenge for attorneys to maintain “competence” with respect to ESI discovery is, therefore, an ongoing one. Attorneys must continue to keep abreast of technological developments effecting ESI in general, and also as it relates to their clients’ specifically. Failing to do so may expose attorneys to liability for failure to provide competent services.
Maintenance of the attorney-client privilege should be of the utmost concern to attorneys engaged in discovery. California Business and Professions Code section 6068(e)(1) obligates an attorney to “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” An attorney shall not reveal information protected from disclosure by Business and Professions Code section 6068, subdivision (e)(1) without the informed consent of the client. (California Rules of Professional Conduct, Rule 3-100(A).) An attorney has a duty to assert the attorney-client privilege to protect confidential communications between and attorney and a client. (See California Evidence Code sections 952, 954 and 955.)
Maintaining the attorney-client privilege in cases involving large amounts of ESI presents a unique set of challenges that an attorney must consider. Due to the overwhelming cost and extensive delays that would result from a thorough review of large amounts of ESI for privileged materials, it is often impractical for an attorney to review all client electronic data and ESI for privilege before production to opposing counsel. Both the state and federal courts have procedures to assist attorneys and provide protection against unintended waivers of privilege in such situations. However, attorneys must be mindful of how to effectively employ those procedures.
California Code of Civil Procedure section 2031.285 provides a level of protection against privilege waiver in ESI productions. Because of the increased risk of inadvertent production and disclosure of privileged information where large amounts of ESI are involved, CCP 2031.285 sets forth a “clawback” procedure by which a disclosing party may notify other parties to whom a production of ESI was made of the claim of privilege once it determines that a privileged document was included within a production of ESI. CCP 2031.285 protects the attorney and the client from a claim that the unintentional inclusion of a privileged document in a massive ESI production waives the privilege.
As a practical matter, when dealing with large volume ESI productions where a document by document review for privilege is not practical, as an extra measure of protection beyond that set forth in CCP 2031.285, the parties to a state court action should also consider a stipulated protective order or written ESI production protocol. Such documents should detail the agreement of the parties on the procedure for addressing inadvertent or unintentional production of privileged materials as well as the procedure for production of ESI and the format in which ESI will be produced.
Federal Rule of Evidence Rule 502(b) provides that when an inadvertent disclosure of privileged information is made in a federal proceeding, the disclosure does not operate as a waiver if:
(1) the disclosure is inadvertent;
(2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and
(3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).
FRE 502(b) does not, therefore, provide an automatic safety net. For the protections against waiver of the privilege to be triggered, all the conditions described in Rule 502(b)(1)-(3) must have been met. As a result, if an attorney produces ESI without conducting a review of all the information for privilege, an argument can be made that the attorney did not take reasonable steps to prevent disclosure (FRE 502(b)(2)) and therefore that FRE 502(b) does not provide protection from waiver of the privilege by disclosure. FRE 502(d), however, provides a vehicle for attorneys to cover themselves. FRE 502(d) states:
“A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court—in which event the disclosure is also not a waiver in any other federal or state proceeding.”
In cases where large ESI productions make a privilege review impractical, as part of an agreed protective order, a written ESI production protocol or simply as a standalone order, the parties should request a “502(d) order” from the court whereby any disclosure of privileged materials made as part of an ESI production will not be deemed a waiver of any privilege.
Below is an example of language for such a 502(d) order:
“Pursuant to Rule 502(d) of the Federal Rules of Evidence, no applicable attorney-client privilege, attorney work product, or any other applicable privilege or ground for withholding production is waived by production of documents or disclosure of information pursuant to this Order, and the Parties shall not have to meet the requirements of Rule 502(b)(1)-(3). Upon demand, the receiving Party shall return any paper copies to the producing Party and delete all electronic copies of the privileged ESI inadvertently produced pursuant to this agreement. Similarly, each Party has a duty to notify a producing Party if they reasonably believe that the ESI such Party produced contains information that may be protected by the attorney-client privilege, work-product doctrine or any other applicable privilege or ground for withholding production. To the extent that the Parties disagree over the application of these principles to any such production or challenge to the privileged nature of such material, the receiving Party shall not make use of the material in question until the matter is resolved by the Court. The return or destruction of a document or materials over which the producing Party has asserted a claim of privilege as set forth above shall be without prejudice to the receiving Party’s right to seek an order from the Court directing the production of the document on the ground that the claimed privilege is invalid or inapplicable; provided, however, that mere production of the document or information in the course of this action shall not constitute grounds for asserting waiver of the privilege.”
To most effectively guard against actions that could jeopardize the attorney-client privilege, requesting a 502(d) order should become a matter of routine in federal cases where ESI discovery is involved. Indeed, during a recent MCLE event on ESI discovery attended by the author, a Magistrate Judge from the Southern District of California acting as a panel moderator expressed surprise that he didn’t see a 502(d) order in every federal case involving ESI these days.
In certain respects, ESI has made the discovery process more manageable. Often times it is no longer necessary to maintain conference rooms full of boxes or binders to store documents produced in discovery. Huge document productions can now be made on digital media or even on-line and can be stored on computers and servers. There are also several highly effective document management programs and services that make indexing, storing and searching for documents simple and efficient. However, with the prevalence of ESI, new challenges and responsibilities have been created for attorneys in meeting their ethical duties and in protecting privileged materials. It is critical for attorneys to continue expanding their technological sophistication and their understanding of state and federal discovery rules and procedures in order to keep pace with the evolution of e-discovery and to avoid pitfalls that could expose the attorney to liability.
 The State Bar of California Standing Committee on Professional Responsibility and Conduct Formal Opinion No. 2015-193 can be found here: