While technology may sometimes daunt even the most experienced and knowledgeable litigator, the impact of technology on the demands and realities of discovery cannot be ignored or minimized. Many jurisdictions and courts are now explicitly requiring lawyers to have sufficient learning and skill regarding electronic discovery (e-discovery) and electronically stored information (ESI) or, in the alternative, to associate with competent lawyers who do. This article highlights a recent California Bar opinion and focuses, looking forward, on the ethical duties implicated by e-discovery with respect to New York lawyers.

Listing Skills

The California Bar recently released an opinion concerning the ethical obligations of attorneys with respect to e-discovery and ESI.¹ Pointing out that in today's world, every litigation matter potentially involves e-discovery, the opinion centered on the duty of competence, as well as confidentiality and the supervision of subordinate lawyers. Among the skills listed by the California Bar that an attorney handling e-discovery should be able to perform are:

(i) initially assessing e-discovery needs and issues, if any;