Court Says Attorneys Must Understand eDiscovery

Sunday, 12 September 2010

Matthew F. Knouff, Esq.

eDiscovery Counsel, Complete Discovery Source

The Uniform Rules for the New York State of Trial Courts Rules §202.10(b) and §202.70(g) (Rules of Practice for the Commercial Division), were recently amended and published on Aug. 18 2010 and attorneys must take immediate steps to address the new requirements.

The amendment to §202.12(b) deals with the appearance by counsel at a preliminary conference, namely, where eDiscovery is going to be involved in the matter. The amendment states:

Where a case is reasonably likely to include electronic discovery, counsel for all parties who appear at the preliminary conference must be sufficiently versed in matters relating to their clients' technological systems to discuss competently all issues relating to electronic discovery; counsel may bring a client representative or outside expert to assist in such e-discovery discussions.

Similarly the amendment to §202.70(g) of the Uniform Rules (Commercial Division) states:

(b) Consistent with the requirements of Rule 8(b), counsel for all parties who appear at the preliminary conference shall be sufficiently versed in matters relating to their clients' technological systems to discuss competently all issues relating to electronic discovery. Counsel may bring a client representative or outside expert to assist in such discussions.

Attorneys taking on cases without adequate knowledge of eDiscovery issues has been a sore spot for the bench for quite some time. Judges have learned that eDiscovery ignorance is an enormous strain on FRCP; and one need only say Qualcomm or Morgan Stanley to send shivers down the spine of even the most seasoned practitioner. However, despite massive sanctions, libraries of CLEs and best-practices webinars, the bar has been progressing at a snail’s pace when it comes to educating themselves about handling electronically stored information in litigation. As the bench and the bar move towards greater fulfillment of FRCP 1 and the “just, speedy and inexpensive” determination of all matters, we see an increased focus on attorney accountability with regards to eDiscovery.

Ultimately it comes down to a question of knowledge. As iterated by the New York Rules of Professional Conduct Rule 1.1 - A lawyer should provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Lawyers have always been excellent at adapting to evolving case law, but the recent New York amendments reiterate the fact that lawyers have traditionally been slow to embrace technology. Technology has historically been left to the patent attorneys. However, with this amendment, attorneys dismiss the importance of understanding their clients’ information ecosystems at their own risk.

The key take-away point here is that if you are involved in discovery of any kind, you must increase your knowledge base with regards to data management and related technologies; don’t just rely on talking with your client’s IT personnel. You need to know the right questions to ask, issues to look for and how to troubleshoot.

In the alternative, you may bring a client representative or outside expert to assist in such discussions. Representing your client zealously has as much to do with knowing something as it does with admitting when you do not know something. Would you try to learn about hydraulic lifts yourself in a tort case where your client was injured when a fork lift dropped a load of bricks? Maybe, and it would be wise to read up on the subject, but you would also consult a mechanical engineer. So, when it comes to eDiscovery issues, where sanctions can include adverse inferences or outright dismissal, do you want to stake your client’s claim on an article you read about preservation obligations and computer forensics, or would you rely on a tested expert with years in the technology trenches? On the other hand, maybe you can just ignore the issue all together…maybe the judge won’t even notice.

About the Author:

Matthew F. Knouff, Esq. is the eDiscovery Counsel for Complete Discovery Source, a full service electronic discovery provider, headquartered in New York City with offices in NY and Washington, DC. He is also a member of the Sedona Conference Working Group on Electronic Document Retention and Production. Additionally, Counselor Knouff serves on the Board of Directors of the New York County Lawyers' Assoc., Cyberspace Law Section. He is on the faculty of the OLP Advanced eDiscovery course. Counselor Knouff can be reached at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .