The available litigation technologies are moving at a rapid pace, and while the law and ethics rules typically lag behind technological innovations, the rules of professional conduct in several jurisdictions are catching up. Though certain software platforms for legal document review, like technology-assisted review (TAR or “predictive coding”) may seem too technical for everyday practice, or like something that is only needed in large, complex cases, courts routinely accept—and even assume—their use in all types of litigation. Many lawyers would rather not invest the (perceived) time and money into learning how to use a document review platform capable of running these complicated algorithms. These technologies, however, are being used in numerous cases nationwide, and an attorney’s failure to learn and use them could land the attorney in ethical hot water in some circumstances.
ABA Model Rule 1.1 states:
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Comment 8 to ABA Model Rule 1.1 states:
To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject (emphasis added).
To date, 31 states have adopted a comment identical or substantially similar to comment 8 to ABA Model Rule 1.1. For example, the California State Bar has said:
If e-discovery will probably be sought, 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 lacks such skills and/or resources, the attorney must try to acquire sufficient learning and skill, or associate or consult with someone with expertise to assist.
The lesson for litigators engaging in any type of electronic discovery is clear. The attorney needs to know the benefits and risks associated with available technology to ethically and practically assist the client. If the attorney lacks those skills or resources, then the best practice is to associate or consult with someone with the expertise to assist. Indeed, this is now required in most states.
Accordingly, courts have found on several occasions that attorneys could have and should have learned about and used relevant technology in litigation. Courts have accused attorneys of failing to understand the “technical depths” to which electronic discovery can sometimes go. And attorneys cannot hide behind their ignorance to avoid a judge’s ire. Some attorneys plead to the court that they are “computer illiterate,” need help turning on their computer, and generally do not have the know-how to effectively use available technology. Such pleas usually fall on deaf judicial ears. Courts routinely find that professed technological incompetence is not an excuse for discovery misconduct.
While attorneys do not need to know the intricacies and hypertechnical aspects of the software platforms or TAR algorithms we have discussed in our previous articles, attorneys should know they exist, they are available, and they can be and, in some instances, should be used. In fact, several courts have expressed a preference for TAR, with one court questioning whether there may come a time when TAR becomes the assumed default review method in litigation. While it has not gone this far yet, lawyers should be aware that if their clients can benefit from the use of certain software, or even TAR, they may run afoul of their ethical obligations if they fail to inform their clients as such or fail to seek assistance when necessary. So what happens when lawyers fail to understand relevant technologies in use by their clients or that can be used to benefit clients?
It should not come as a surprise to any attorney that if you commit discovery violations, violate court orders, or are not diligent in your discovery efforts, courts can and will impose sanctions. The rules most used by courts to sanction parties for discovery violations in federal courts are Rule 37 and, more recently, Rule 26(g). Rule 37 is most often employed, and gives courts the power, to sanction attorneys and fashion other remedies if a party fails to make disclosures or cooperate in discovery. Rule 26(g) cannot be forgotten, however. That rule requires a signature by a party or its counsel on discovery responses and objections, and that signature certifies that the disclosure made is complete or correct at the time it is made, among other things. As one court stated, “[t]he point of Rule 26(g) is to hold someone personally responsible for the completeness and accuracy of discovery responses.”
Courts do not require perfection in electronic discovery. Such a standard would be impossible to achieve. The touchstone of electronic discovery is, instead, reasonableness. And when an attorney signs discovery responses, courts will require that the attorney conduct a reasonable inquiry into the electronically stored information that is available. Attorneys should know where the client’s electronically stored information is located, how it is gathered, and how it is being culled, processed, and reviewed. Attorneys must make these inquiries and have this knowledge not because they are necessarily electronic discovery experts or even technology experts, but because when they or their clients sign discovery responses, they are certifying that the responses are complete and accurate. Attorneys who fail to familiarize themselves with a client’s electronically stored information, where it is stored, how it is collected, and how it is reviewed run a substantial risk of violating Rule 26(g) when the discovery responses are signed, and an equally substantial risk of being sanctioned.
Also, attorneys cannot always rely solely on their clients to search for electronically stored information. Courts have found that an attorney’s failure to guide or monitor a client’s search for electronically stored information or inquire about the thoroughness of a client’s search for electronic documents to be unreasonable. If a vendor is hired to assist with the collection and review of the electronically stored information, attorneys still must do their due diligence and supervise the vendor to ensure that relevant electronically stored information is being produced. Otherwise, the attorney risks running afoul of Rule 26(g). And if Rule 26(g) is violated, courts are required to impose an appropriate sanction.
Just as we keep abreast of the changes in the law, attorneys should make it a practice to periodically learn about the latest technologies that could assist them and their clients. In litigation, attorneys should be aware that there are technologies that can assist them with document review that, in some instances, are more economical and better than the typical, manual review of documents. Also, lawyers should be aware of relevant technologies because their clients are using them, and lawyers need to be able to intelligently inquire about a client’s technologies, assist and monitor a client’s gathering of electronically stored information, and advise the client of available technologies that can help with the electronic discovery process.
