Competent Representation Must Include E-Discovery Competence

The American Bar Association’s Model Rules of Professional Conduct say that a lawyer shall provide competent representation to a client. Competent representation includes legal knowledge and skill, but what constitutes legal knowledge and skill evolves as times change. Now, because e-discovery has become such a large part of the overall discovery process, it has become a core element of competent representation, the author says.

He cites a recent case, Play Visions v. Dollar Stores, Inc., in which counsel deferred to custodians to identify and collect responsive documents. Hundreds of boxes of unsorted documents were submitted, and numerous discovery addendums were sent after deadlines. It was later established that the executives had no idea where to search for electronic materials. Sanctions were ordered because of counsel’s failure to search for electronic records in a timely fashion, but also for failure to assist and guide the client’s production of discovery material.

The author suggests reasonable steps an attorney should take to assure a proper e-discovery process. First, suspend the routine document retention/destruction policy. This might necessitate suspending the function on many email systems that auto-deletes materials after a certain time period, not withstanding the fact that procedure helps reduce storage costs and over-preservation.

Second, put in place a litigation hold to ensure relevant documents are preserved. The author outlines the steps involved in this multi-step process, noting that it it involves far more than just the issuance of a boilerplate litigation-hold letter.