Based on a hypothetical situation in which an attorney – mistakenly believing that the existing clawback agreement is broader than it is and would allow recovery of inadvertently produced material – agrees with opposing counsel that his client’s database could be searched with search terms that the opposing counsel suggests. Attorney does not review material before it is produced to opposing party. Unfortunately among the produced material the opposing party receives privileged information that reveal that client has not stopped his regular routine of document destruction (i.e., litigation hold not in place.) The proposed opinion states that attorney in the hypothetical breaches his duty of competence in properly dealing with e-discovery, his duty of confidentiality (by failing to protect privileged information), and again his duty of competence (by not suggesting his client to institute a litigation hold).
The draft opinion concludes that
“a lack of technical knowledge in handling e-discovery may render an attorney ethically incompetent to handle certain litigation matters involving e-discovery…It might also result in violation of the duty of confidentiality, the duty not to suppress evidence, and/or the duty of candor to the Court, notwithstanding a lack of bad faith conduct.”
See draft opinion at http://www.calbar…
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