The American Bar Association (ABA) recently announced changes to its Model Rules of Professional Conduct that are designed to address digital age challenges associated with practicing law in the 21st century. These changes emphasize that lawyers must understand the ins and outs of technology in order to provide competent representation to their clients. From an eDiscovery perspective, such a declaration is particularly important given the lack of understanding that many lawyers have regarding even the most basic supporting technology needed to effectively satisfy their discovery obligations.
With respect to the actual changes, the amendment to the commentary language from Model Rule 1.1 was most significant for eDiscovery purposes. That rule, which defines a lawyer’s duty of competence, now requires that attorneys discharge that duty with an understanding of the “benefits and risks” of technology:
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.
This rule certainly restates the obvious for experienced eDiscovery counsel. Indeed, the Zubulake series of opinions from nearly a decade ago laid the groundwork for establishing that competence and technology are irrevocably and inextricably intertwined. As Judge Scheindlin observed in Zubulake V, “counsel has a duty to effectively communicate to her client its discovery obligations so that all relevant information is discovered, retained, and produced.” This includes being familiar with client retention policies, in addition to its “data retention architecture;” communicating with the “client's information technology personnel” and arranging for the “segregation and safeguarding of any archival media (e.g., backup tapes) that the party has a duty to preserve.”
Nevertheless, Model Rule 1.1 is groundbreaking in that it formally requires lawyers in those jurisdictions following the Model Rules to be up to speed on the impact of eDiscovery technology. In 2012, that undoubtedly means counsel should become familiar with the benefits and risks of predictive coding technology. With its promise of reduced document review costs and decreased legal fees, counsel should closely examine predictive coding solutions to determine whether they might be deployed in some phase of the document review process (e.g., prioritization, quality assurance for linear review, full scale production). Yet caution should also be exercised given the risks associated with this technology, particularly the well-known limitations of early generation predictive coding tools.
In addition to predictive coding, lawyers would be well served to better understand traditional eDiscovery technology tools such as keyword search, concept search, email threading and data clustering. Indeed, there is significant confusion regarding the continued viability of keyword searching given some prominent judicial opinions frowning on so-called blind keyword searches. However, most eDiscovery jurisprudence and authoritative commentators confirm the effectiveness of keyword searches that involve some combination of testing, sampling and iterative feedback.
Whether the technology involves predictive coding, keyword searching, attorney client privilege reviews or other areas of eDiscovery, the revised Model Rules appear to require counsel to understand the benefits and risks of these tools. Moreover, this is not simply a one-time directive. Because technology is always changing, lawyers should continue to stay abreast of changes and developments. This continuing duty of competence is well summarized in The Sedona Conference Best Practices Commentary on the Use of Search & Retrieval Methods in E-Discovery:
Parties and the courts should be alert to new and evolving search and information retrieval methods. What constitutes a reasonable search and information retrieval method is subject to change, given the rapid evolution of technology. The legal community needs to be vigilant in examining new and emerging techniques and methods which claim to yield better search results.
While the challenge of staying abreast of these complex technological changes is difficult, it is certainly not “mission impossible.” Lawyers untrained in the areas of technology have often developed tremendous skill sets required for dealing with other areas of complexities in the law. Perhaps the wise but encouraging reminder from Anthony Hopkins to Tom Cruise in Mission Impossible II will likewise spur reluctant attorneys to accept this difficult, though not impossible task: “Well this is not Mission Difficult, Mr. Hunt, it's Mission Impossible. Difficult should be a walk in the park for you.”