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Formal Opinion No. 2015-193 of the Standing Committee On Professional Responsibility and Conduct of the California State Bar (“Committee Opinion”) opines that an attorney may violate ethical duties of competence by failing to understand and perform e-discovery skills. The Committee Opinion set out a list of nine e-discovery tasks that “attorneys handling e-discovery should be able to perform (either by themselves or in association with competent counsel or expert consultants).”

The nine skills from the Committee Opinion are:

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;
7. Perform data searches;
8. Collect responsive ESI in a manner that preserves the integrity of the ESI; and
9. Produce responsive non-privileged ESI in a recognized and appropriate manner.

Performing many of these skills competently requires understanding of the concepts of the related concepts of proportionality and reasonable accessibility.

Federal Rule of Civil Procedure 26(b)(1) sets forth the scope of discovery in civil cases pending in federal court: Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within the scope of discovery need not be admissible in evidence to be discoverable.

Rule 26 contains specific limitations relative [*7] to electronic discovery and other objections to providing discovery: (B) Specific Limitations on Electronically Stored Information. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify the conditions for the discovery.

While California state law does not include a “proportionality” limit, it does allow objection and/or a motion for protective order when discovery is not reasonably accessible. (If the demand seeks a copy of data that is not reasonably accessible (e.g., from sources that are not routinely accessed or easily located), the responding party may either object [CCP § 2031.210(d)] or move for a protective order [CCP § 2031.060(a), (b)].) (Matthew Bender Practice Guide: CA E-Discovery and Evidence, § 6.07)

Moderator: Michael F. Kelleher and Mark Michels

Speakers: Steven Williams and Hon. Laurel Beeler