It is a basic tenet of professional responsibility that lawyers obtain sufficient proficiency to ensure competent representation of their clients. The challenge in today's world of Big Data and corporate globalization and outsourcing of IT infrastructure is that the level of technological proficiency required is not always clear. Understanding your obligations and establishing defensible processes will be necessary to fully demonstrate competence in discovery should an issue arise.

Ethical and Procedural Framework

Federal Rule of Civil Procedure 34 requires a party to “produce documents as they are kept in the usual course of business or to organize and label them to correspond to the categories in the request.” In practice, this requires counsel to establish and supervise the process through which all responsive nonprivileged documents are produced on a timely basis. Easy enough, right?

Well, the recently enacted amendment to Model Rule of Professional Conduct 1.1 throws a bit of a monkey wrench into that plan. It states that “competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Comment 8 to the rule clarifies that “to maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”