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