E-Discovery Primer for Lawyers

E-discovery is “Electronic Discovery” and the use of technology to obtain electronically stored information (or “ESI”) in the course of litigation. It is a cost-saving method of using sophisticated software that helps sift through ESI, including documents, emails, messages, and related content. The software allows users to use terms or “keywords” like you would in a search engine, to locate relevant documents. The latest development in e-discovery and document review is TAR, or technology assisted review (also known as “predictive coding.”) (Note: all of these terms are now in the Tech Dictionary for Lawyers). TAR combines human and computer review of ESI. It involves the computer learning from a small sample search from feedback provided by a human reviewer, which increases the accuracy of the results of particular searches.

However, as with any technology, it must be used properly. The California State Bar Committee on Professional Responsibility, Formal Op. 2015-193, states that lawyers may breach “duties of competence and client confidentiality by engaging in e-discovery without the assistance of someone with e-discovery expertise.” The Opinion states that you may accidentally reveal confidential information by conducting the search without the assistance of an e-discovery expert, or destroy documents that were discoverable. Always proceed with caution. See the full Opinion here: http://bit.ly/1gbN5Yk.

Since much of what people and companies do is no longer on paper, and e-discovery is becoming more and more prevalent, it is a necessity for lawyers to be familiar with the concept and the rules that apply to e-discovery. Here’s a short list to get you started:

FRCP 26, 33, 34, 37, 45;

FRE 502, 901;

Rules of Professional Conduct of the State Bar of California 3-100 and 3-110;

Business and Professions Code section 6068(e);

CA Evidence Code sections 952, 954 and 955.

Note: this list is non-exhaustive.

 

The rules are changing in December, so stay tuned and informed.

 

See my Disclaimer here.


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