A Call for “Disruptive Change” Toward E-Discovery Competence

Electronically stored information (“ESI”) is information that is stored in technology having electrical, digital, magnetic, wireless, optical, electromagnetic or similar capabilities. Electronic Discovery, or e-discovery, is the use of legal means to obtain ESI in the course of litigation for evidentiary purposes. Together, they constitute new, interesting and important considerations and challenges that overlay family law as well as traditional civil litigation.

But ignorance of and reistance to dealing with ESI remains high. An experienced and well-respected judge in one of our cases recently asked in the middle of an e-discovery hearing, “what is ESI?”

A couple weeks ago in a bar association meeting of law firm managing partners, I heard one participant brag that his large firm stubbornly accepts discovery productions of ESI only through hard copy printouts. It was still lost on him that discovery of ESI in its native form can reveal metadata (hidden “data regarding data”) potentially critical to a case, can be much more efficient to transfer from computers and devices in its native format and can be reviewed by technology that is much more efficient than human eyeballs.

A 2016 survey of federal judges and and attorneys addresssed e-discovery best practices and trends. Grabbing attention was their observation that being undereducated and underprepared in e-discovery “is no longer an option.” They continued, “disruptive change is needed for lawyers to become e-discovery competent.” (The survey can be obtained through exterro.com.)

In his 2015 Year-end Report on the Federal Judiciary, Chief Justice John Roberts emphasized that new changes to the Federal Rules of Civil Procedure are in part intended to “address serious new problems associated with vast amounts of [ESI].”

Earlier last year, the California State Bar issued a formal Opinion, providing guidance relating to ESI and e-discovery. (State Bar of California’s Standing Committee on Professional Responsibility and Conduct (“COPRAC”) Formal Opinion No 2015-193.) The Opinion points out that electronic document creation and/or storage, and electronic communications have become commonplace in modern life. It acknowledges that discovery of ESI is now a frequent part of almost any litigated matter. It emphsasizes that attorneys who handle litigation may not ignore the requirements and obligations of electronic discovery.

“ESI is now an accepted part of a law practice, and may be be ignored simply because counsel may be ‘highly experienced’ in other aspects of litigation. Failure to be adequately prepared to conduct e-discovery qualifies as ‘ethical incompetence.” (A. Marco Turk.) Herring Law Group handles major cases involving ESI issues and e-discovery. We are committed to staying on top of this changing legal terrain.