(Based on The State Bar of California Standing Committee on Professional Responsibility and Conduct Formal Opinion No. 2015-193.)

While e-discovery may be relatively new to the legal profession, an attorney’s core ethical duty of competence and confidence remains constant. “A member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence.” (Rules of Prof. Conduct, Rule 3-110(A).) An attorney is also required “[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” (Bus. & Prof. Code, § 6068(e)(1).)

Legal Standard

“Any party may obtain discovery… by inspecting, copying, testing, or sampling documents, tangible things, land or other property, and electronically stored information in the possession, custody, or control of any other party to the action.” (Code of Civ. Proc., § 2031.010(a).)

A party moving for an order compelling the production of documents must first offer facts demonstrating “good cause justifying the discovery sought by the demand.” (Code of Civ. Proc., § 2031.310(b)(1).) This burden “is met simply by a fact-specific showing of relevance.” (TBG Ins. Servs. Corp. v. Super. Ct. (2002) 96 Cal.App.4th 443, 448.) Materials are relevant when they will “reasonably assist a party in evaluating the case, preparing for trial, or facilitating a settlement.” (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1013.) This standard is to be “applied liberally in favor of discovery,” which means that even so-called “fishing expeditions” may be permitted. (Id.) The court can also determine “good cause” based on the pleadings alone. (Greyhound Corp. v. Super. Ct. (1961) 56 Cal.2d 355, 389.)

“If a party objects to the discovery of electronically stored information on the grounds that it is from a source that is not reasonably accessible because of undue burden or expense… the responding party shall identify in its response the types or categories of sources of electronically stored information that it asserts are not reasonably accessible.” (Code of Civ. Proc., § 2031.210(d).)

Duty of Competence

“If a member does not have sufficient learning and skill when the legal service is undertaken, the member may nonetheless perform such services competently by

1. associating with or, where appropriate, professionally consulting another lawyer reasonably believed to be competent, or
2. by acquiring sufficient learning and skill before performance is required.”

(Rules of Prof. Conduct, Rule 3-110(C).)

Attorneys handling e-discovery should be able to perform (either by themselves or in association with competent cocounsel or expert consultants) the following:

1. initially assess e-discovery needs and issues, if any;
2. implement/cause to implement appropriate ESI preservation procedures;
3. analyze and understand a client’s ESI systems and storage;
4. advise the client on available options for collection and preservation of ESI;
5. identify custodians of potentially relevant ESI;
6. engage in competent and meaningful meet and confer with opposing counsel concerning an e-discovery plan; · perform data searches;
7. collect responsive ESI in a manner that preserves the integrity of that ESI; and
8. produce responsive non-privileged ESI in a recognized and appropriate manner.

(Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC (S.D.N.Y. 2010) 685 F.Supp.2d 456, 462 – 465.)

However, a mere failure to act competently does not trigger discipline. (In the Matter of Torres (Review Dept. 2000) 4 Cal. State Bar Ct. Rptr. 138, 149.) It is the failure to do so in a manner that is intentional, reckless or repeated that would result in a disciplinable violation. (In the Matter of Gadda (Review Dept. 2002) 4 Cal. State Bar Ct. Rptr. 416; In the Matter of Riordan (Review Dept. 2007) 5 Cal. State Bar Ct. Rptr. 41.) A potential finding of a competence violation is implicated by the fact pattern. (Palomo v. State Bar (1984) 36 Cal.3d 785, 796 [205 Cal.Rptr. 834].)

Duty of Confidentiality

“A member shall not reveal information protected from disclosure by Business and Professions Code section 6068, subdivision (e)(1), without the informed consent of the client.” (Rules of Prof. Conduct, Rule 3-100(A).) Similarly, an attorney has a duty to assert the attorney-client privilege to protect confidential communications between the attorney and client. (Evid. Code, §§ 952, 954, 955.)

In civil discovery, the attorney-client privilege will protect confidential communications between the attorney and client in cases of inadvertent disclosure only if the attorney and client act reasonably to protect that privilege. (Regents of University of California v. Super. Ct. (Aquila Merchant Services, Inc.) (2008) 165 Cal.App.4th 672, 683 [81 Cal.Rptr.3d 186].)

A lack of reasonable care to protect against disclosing privileged and protected information when producing electronically stored information can be deemed a waiver of the attorney-client privilege; “the attorney-client privilege… confers a privilege on the client ‘to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer.’ The fundamental purpose of the privilege ‘is to safeguard the confidential relationship between clients and their attorneys so as to promote full and open discussion of the facts and tactics surrounding legal matters.’” (Costco v. Super. Ct. (2009) 47 Cal.4th 725, 732.)