I had the honor of speaking at the 2014 Arkansas State Bar Annual meeting on eDiscovery Ethics and new trends in eDiscovery in Hot Springs, Arkansas. I had an amazing time and greatly appreciated the hospitality of the Arkansas Bar Association.
My new Ethics seminar is a Star Trek themed presentation based on the Ingenuity 12 LLC v Doe case, that also covered the evolving rules of attorney and judicial ethics on social media; how to conduct a reasonable inquiry with ESI; the duty of candor to the Court; compliance with Rule 11 in an age of Terabytes; Production obligations under FRCP 26(g); and the duty of confidentiality and computer security. It was also a ton of fun.
My two sessions were attended by 150-200 attorneys in the convention center exhibit hall. We also covered the proposed California ethics opinion on eDiscovery competency, which will require attorneys to be competent in the following areas:
Initially assess eDiscovery needs and issues, if any;
Implement appropriate ESI preservation procedures, including the obligation to advise a client of the legal requirement to take actions to preserve evidence, like electronic information, potentially relevant to the issues raised in the litigation;
Analyze and understand a client’s ESI systems and storage;
Identify custodians of relevant ESI;
Perform appropriate searches;
Collect responsive ESI in a manner that preserves the integrity of that ESI;
Advise the client as to available options for collection and preservation of ESI;
Engage in competent and meaningful meet and confer with opposing counsel concerning an eDiscovery plan; and
Produce responsive ESI in a recognized and appropriate manner.
Proposed Formal Opinion Interim No. 11-0004 (ESI and Discovery Requests) (State Bar of California).
This proposed opinion has teeth, because lawyers who are not competent in eDiscovery should either learn how to handle eDiscovery issues, associate with those who are, which can be retaining an expert, or decline representation. Given the fact virtually all civil litigation has data of some kind in it, the third option could end careers.
“Tweeting Discovery,” my second session, explored recent social media/eDiscovery issues. The material also covered two of the new and proposed statutes limiting the use of Drones by law enforcement. The Drone limitations would prohibit law enforcement to use Drones to gather evidence, images, sounds, or data. The key exceptions would be in a high risk of terrorist attack, finding a mission person, preventing imminent loss of life, or a search warrant (limited in scope to only person subject to the search), and data retention rules. See, 2013 ILL. ALS 569 and 2013 Bill Text NC H.B. 312.
I want to thank the Arkansas Bar Association for their hospitality. I had a corner suite in the Arlington Hotel, which included a Washington, DC, theme, complete with a large sitting room and conference room. Truly a lot of fun. I even took a moment to enjoy the suite and record this promo video for The Legal Geeks submission to the Geekie Awards:
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.