The Ethics of e-Discovery: What "Competence" Means (Update)

Electronically stored information (ESI) is everywhere. Not surprisingly, ESI is a common feature of civil litigation and disputes and misunderstandings arise on a daily basis about discovery of ESI. Model Rule of Professional Conduct 1.1 speaks of the competence of lawyers and, as amended in 2012, requires lawyers to be aware of the benefits and risks of technology. What does it mean for an attorney to be competent in terms of ESI? What conversations should they have with their client and opposing counsel in order to frame and respond to discovery requests? How should an attorney undertake a search for ESI or describe how they want it produced? What should an attorney do to protect against inadvertent production of privileged information or work product? This program will explore these and other questions through in the context of e-discovery and Rule 1.1.

Learning Objectives:

1. Discuss the implications of MRPC 1.1 in terms of ESI in litigation
2. Appreciate the skills and knowledge that a competent attorney should have to use ESI in litigation
3. Recognize means by which necessary skills and knowledge may be acquired
4. Assess the possible consequences of a failure to be competent when dealing with ESI in litigation