E-discovery is often seen as a revolutionary tool that has changed the way evidence is found, preserved and presented in court. Such a powerful tool has been acknowledged by the court system and has influenced changes to the Federal Rules of Civil Procedure, so the courtroom can take advantage of these advances. So, why do judges feel that attorneys don’t understand e-discovery?
Recently, a study claimed that only 23 percent of judges think that attorneys have the technical knowledge they need to counsel clients on e-discovery issues. That study also found the 46 percent of those judges also thinkg that e-discovery training should be mandatory through bar associations or CLE programs. So, what drives these views?
Apparently, many of these judges are hearing cases where attorneys are not competent in the use, storage or presentation of electronically stored information (ESI). This is leading to a lack of competency that hinders e-discovery. The problem has reached such a level that the California Standing Committee on Professional Responsibility and Conduct has included language regarding e-discovery competence in its ethical guidelines.
According to the Committee’s formal opinion no. 2015-193, attorneys must evaluate the e-discovery needs of a client upon being approached with a potential matter, and if they are not able to address these needs, they must:
These developments should prompt attorneys in California—and all over the country—to ask themselves if they are competent in e-discovery. To learn more about not only e-discovery, but other legal technology issues, stick with the IT professionals at Exactify.IT—we hold CLE events to help attorneys stay on top of their ethical duties as they relate to technology.