MCLE Self-Study Article Electronically Stored Information and Attorney Competence

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MCLE Self-Study Article Electronically Stored Information and Attorney Competence

By Cari M. Pines and Kevin J. Mooney

It would be difficult for anyone to deny that technology has changed nearly every aspect of our lives and the practice of law is no exception. An attorney who does not understand and fully appreciate the impact of digital information including social media, email, texting, tweeting and posting – just to list a few – has an obligation to find and consult with someone who does. Only those who understand the emerging advances in the field of technology and the related law are considered “competent.” The State Bar of California has specifically addressed the duty of attorneys to be “competent” in the area of electronically stored information (“ESI”). See the June 2015 State Bar Ethics Opinion 2015-193.

When the California Legislature passed the Electronic Discovery Act in 2009 adding and amending several discovery statutes to make provisions for electronic discovery, few lawyers grasped the impact it would have on the practice of law in California. As included in the Act, Code of Civil Procedure §2031.010(a) expressly provides for the “copying, testing, or sampling” of “electronically stored information in the possession, custody, or control of any other party to the action”. The 2009 amendments include §§2016.020 (ESI defined); 1987.8 (Subpoena for ESI); 2031.010 to 2013.060 (Inspection Demand for ESI); 2031.210 to 2031.280 (Response to Inspection Demand for ESI); and 2031.285 (Clawback/Privilege provisions for ESI).

Competence

The California Rules of Professional Conduct rule 3-110(A) provides: “A member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence.” Under subdivision (B) of said rule, “competence” means: to apply the diligence, learning and skill, and mental, emotional, and physical ability reasonably necessary for the performance of such service. Under California case law, the mere failure to act competently does not necessarily trigger discipline under Rule 3-110. Rather, it is acting in a manner that is intentional, reckless or repeated that would result in a violation actionable under Rule 3-110. (See In the Matter of Torres (Review Dept. 2000) 4 Cal. State Bar Ct. Rptr. 138, 149 (“We have repeatedly held that negligent legal representation, even that amounting to legal malpractice, does not establish a [competence] rule 3-110(A) violation”); see also, In the Matter of Gadda (Review Dept. 2002) 4 Cal. State Bar Ct. Rptr. 416 (reckless and repeated acts); In the Matter of Riordan (Review Dept. 2007) 5 Cal. State Bar Ct. Rptr. 41 (reckless and repeated acts).

Gaining a client’s confidence and developing a working relationship begins at the initial interview when counsel must also begin planning his or her discovery strategy. Some attorneys use checklists and other requests for documents and data from a client as the first step in assessing where evidence may exist and to determine a client’s level of understanding and sophistication about the use of technology, electronic devices, and social media. As part of this process, it is crucial in the early stage of a matter to request that a client identify electronically stored or transmitted information and the devices where such information may be found.

If an attorney communicates with clients via email, there is a duty to inquire about the details of the security of the devices and account utilized by the client to review same. The devices and communication platforms must be sufficiently secure to ensure that all relevant evidence, as well as all privileged and confidential information transmitted will be maintained and remain confidential. In addressing this issue utilizing an encrypted email platform is the preferred process to preserve the confidentiality of such communication. The attorney should also verify that the client is not using an email account or device/computer to which third parties may have access, right or claim of ownership. Although many already know that it is not advisable to use an employer-owned computer or phone to transmit confidential information, one might not expect that a spouse or former spouse may have a claim of interest or continue to have access to devices and/or accounts established during the marriage. Recent CA domestic violence cases have explored the “reasonableness” of a party’s expectation of privacy when continuing to use and access electronic accounts with a password established prior to the parties’ separation or when such accounts were shared by both parties. Obtaining a client’s written acknowledgement that the attorney has discussed and provided the client with advisories on these issues is highly recommended at the very least.

Upon conclusion of the attorney-client relationship, counsel has a duty to provide the client with the original of his/her file which also includes the duty to provide the client all ESI, which may encompass emails, text messages and other electronically transferred or generated documents and communications between counsel and client related to the case. Very often, this type of information may only reside on the cell phones, home computers or personal electronic devices of the attorney or other office staff members that have been involved in the case. (See CRPC 3-700(D).) Therefore, it might be advisable to limit the use of such devices during the pendency of an action or to implement and office policy that all exchanges of data, documents and communications with clients takes place through an office specific platform.

Preservation and Disclosure Duties

Beyond simply protecting a client’s privacy, by maintaining access to files and data that have been backed-up or otherwise preserved, including text messages, computer and cloud usage and search histories, digital photos, and other electronically stored information, will provide evidentiary advantages and reduce discovery costs by capturing this information before it is no longer physically within reach. Accordingly, obtaining a “forensically sound” copy of hard drives and other electronically stored data early in a matter may prove particularly useful and cost effective. Failing to take the necessary steps to capture such information may require near heroic efforts to seek deleted, corrupt, or concealed data, which is most often cost-prohibitive and labor intensive. Best practice is to act quickly to secure digital information during the early stages of a case. Counsel should advise clients of the duty to preserve all information, electronically stored or otherwise, that may become necessary as evidence to the client as well as to any other party.

Case law related to accessing such electronically stored data may be relevant to obtaining information that may have been assumed to be private. As well, in a California marital dissolution action, the Family Code imposes the duties of corporate partners on the divorcing spouses, requiring mandatory financial disclosure and compliance with other fiduciary duties (Fam C §§2100, 1100, 721, see also In re Marriage of Schleich and Holek 17 DJDAR 1167 (2-8-17) (DCA 6)).

Fiduciary Duties.

721(b) – confidential relationships, highest good faith and fair dealing, access to books and records, true and full info, account to other spouse (applices to FC 1100(e)).

Corp Code 16403 – inspect, gain access to, make copies of books and records without demand – communicate info re. estate required to exercise rights and duties upon demand – infor not unreasonable or improper under the circs.

Although very concretely spelled out in the Federal Rules of Civil Procedure (see Zubulake IV, 220 F.R.D. 212), in California the duty is found in various authorities including Penal Code §135, Business & Professions Code §6106, and such caselaw as New Albertsons Inc. v. Superior Court (2008) 168 Cal.App. 4th 1403. Remedies for the failure to preserve evidence (i.e., “spoliation” of evidence”) might include evidence exclusion, issue preclusion, monetary sanctions, cost shifting and adverse inference (i.e., a legal inference made by the court, adverse to the concerned party, which is drawn from the party’s silence or absence of requested evidence). An adverse inference may be based on the presumption that a party who controls the evidence would have produced same if it had been supportive of the claim at issue (see also Evidence Code §§ 412, 413).

Formal Discovery

Formal discovery procedures are not intended to limit an attorney’s right to obtain relevant information through unilateral investigation. Although all such investigation must be lawful, evidence obtained illegally may still prove to be useful. Often parties will offer unlawfully obtained video or audio recordings or other evidence of dubious origin (note that Fam C §2022 precludes the admissibility of evidence obtained through eavesdropping). Clients should be advised that there are legal parameters defining how evidence may be obtained and the impact on admissibility as well as the potential criminal and civil liability for violating same. (Pen C §§630-637.9.) Parties now have the ability to find its way into the record through other means such as by submission to an evaluator or as impeachment evidence.

Document Demands

Electronically stored information (“ESI”) may also be demanded. The requesting party must specify the form in which the electronically stored information is to be produced, if a specific form is desired. CCP §§2020.410(a), 2020.510(a)(4). See also CCP §1985.8. Should the propounding party not specify any format for production the responding party can choose the format for production. The request for a non-party to produce ESI is limited by the Code to avoid the burden on a non-party of producing ESI in more than one format or in such a manner that would result in unnecessary cost or burden to the non-party.

Documents may also be requested of a deponent. Newly amended CCP §2025.280 provides that any deponent, a party to the action or an “officer, director, managing agent, or employee of a party” must attend and testify as well as produce documents, ESI or things pursuant to a deposition notice, or any other deponent pursuant to a subpoena, and shall provide a means of gaining “direct access to,” a “translation into a reasonably useable form” of ESI that is password protected or otherwise inaccessible.

Graphic highlighting how AB 2427 amends CCP 2025.280 b and c and 2034.415.

If the decision is made to depose an expert, it is good practice to request the a copy of the expert’s complete file well before the deposition. CCP §§2034.210–2034.310. This is often accomplished by arranging for the expert to make a copy (at the requesting party’s expense) or to retain a copy service to retrieve same from the expert’s office. Requesting the expert’s drafts, handwritten notes and even the ESI related to the preparation of the report and during the investigation may be indispensable in challenging any report or the expert’s stated opinion. Effective January 1, 2017, an expert (defined by CCP §2034.210(b)) whose deposition is noticed pursuant to CCP §2025.220 must produce documents, including any ESI demanded by the deposition notice, no later than three business days before the scheduled deposition (see CCP §2034.415). The opportunity to review same prior to the deposition can be of critical importance to maximize the benefit of the deposition itself.

Courtroom Application

For each piece of potential evidence that is electronically stored (“ESI”) or electronically transmitted through email, text message or social media, an e-Discovery plan should be developed and a thorough assessment of the challenges to admissibility of ESI charted. Authentication of evidence (i.e., establishing that evidence “is what it purports to be”) is the focal point of offering ESI into evidence. Presumptions in the Evidence Code provide guidance for how to offer computer generated information, photographs, videos and the like (see Evid C 1552, 1553, People v. Beckley (2010) 185 Cal.App.4th 509, People v. Valdez (2011) 201 Cal.App.4th , Juror No. One v. Superior Court (2012) 206 Cal.App.4th 854, and see also In Re KB (2015) 238 Cal.App.4th 989, and People v. Goldsmith (2014) 59 Cal.App.4th 258).

Authentication:

Evidence Code 1552 – Printout presumed accurate representation.

Evidence Code 1553 – Applies 1552 to videos and digital media.

Authentication of CGI
This figure shows recent cases that provide guidance on computer generated information, including People v. Beckley (2010) – regarding MySpace, People v. Valdez (2011) – regarding MySpace, Juror Number One v. Superior Court (2012) – regarding Facebook, and In re KB (2015) – regarding Instagram.
Image description added by Fastcase.

Settlement Application

The potential for settlement should be evaluated at all stages of the litigation. To this end, it is mandatory that parties engage in efforts to “meet and confer” to resolve issues including case management. Although often viewed as merely related to matters governed by Federal Rules of Civil Procedure, the requirement to meet and confer regarding ESI is not exclusive to Federal litigation. Specifically, CRC rule 3.724 imposes a duty for attorneys in all areas of civil litigation to meet and confer regarding ESI.

In our next issue of the eTBL, we will discuss and present various practice aids and tips to help make your practice ESI competent, compatible and compliant.

About the Authors

Cari M. Pines is a Certified Family Law Specialist and a principal at Pines Law Group in Encino, California. Cari is an Officer for the Family Law Section of the Los Angeles County Bar Association and is the former Chair for the Family Law Section of the San Fernando Valley Bar Association. She currently serves on the Board of Directors for the Association of Certified Family Law Specialists and on the Board of Levitt & Quinn Family Law Center, a nonprofit provider of family law legal services in Los Angeles. Although Cari’s private practice is dedicated to the practice of family law, her particular area of specialization is family law disputes that are impacted by a child’s special needs. Most recently, Cari has focused her efforts on educating family law practitioners about the rapidly evolving impact of electronics and social media on family law matters presenting seminars and authoring articles about ESI and digital evidence.

Kevin J. Mooney is a Certified Family Law Specialist with the family law firm of Minyard Morris in Newport Beach, California. Mr. Mooney is a graduate of both the Georgetown Law eDiscovery Training Academy and the Michael Arkfeld Professional Education Course on eDiscovery and Digital Evidence, 2015, earned his J.D. from Pepperdine University School of Law in 1997, Master of Public Administration from California State University Northridge in 2007 and Master of Business Administration from California Lutheran University in 2012. Mr. Mooney has presented extensively and authored articles and publications on the topics of Electronically Stored Information and eDiscovery in Family Law.