By Helen Geib, QDiscovery
There is a fast growing trend in the states to explicitly recognize that a lawyer’s ethical responsibilities include technological competence. In 2012, the ABA amended the comments to Model Rule of Professional Conduct 1.1 governing a lawyer’s duty of competence to his or her client to specify that the duty includes keeping abreast of “the benefits and risks associated with relevant technology.” Over half the states have now adopted this rule change, and many have also issued technology-related ethical opinions in the areas of eDiscovery and cybersecurity. Florida’s recent adoption of a mandatory technology CLE requirement is likely to prove another bellwether.
Technology has a particularly prominent role in eDiscovery. A basic familiarity with the sources and types of Electronically Stored Information (ESI) is foundational technological knowledge for litigators. It’s necessary in conducting custodian interviews and creating a data map during the identification stage, in negotiating a discovery plan and in developing a defensible strategy for preservation and collection. Efficient and cost-effective review relies on matching the right advanced analytics tools to the different types of ESI included in the collection.
Litigators should have a working knowledge of the eDiscovery options and challenges associated with the seven main categories of ESI.
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