When it comes to litigation, having a good attorney is of the utmost importance. Obvious – right? Right. Presumably, a “good” attorney will be well versed in all of the areas (evidentiary or argumentative) that might surface during a modern court case. While electronic data discovery isn’t exactly “new,” it is an area of knowledge to which some lawyers have failed or struggled to adapt. Be it their choice of ignorance, a distaste for anything digital, or merely the time-barrier associated with attaining the necessary knowledge, some attorneys aren’t prepared to handle cases that revolve around e-discovery.
In this post, we’ll highlight three traits to look for in your e-discovery attorney. While this is by no means an exhaustive list, it should get you started on your quest for finding a qualified representative.
1. Knowledge of Electronic Discovery Rules
There are countless rules that attorneys must abide by when representing their clients. Be it the presentation of evidence, the calling of witnesses to the stand, or objections to the opposing attorney, there are certain rules that must be followed. Presumably, most lawyers know and adhere to these rules. It’s how we keep order in our courtrooms (most of the time).
When addressing electronic discovery, a lawyer must be aware of the federal, state, and local rules that pertain specifically to the discovery of electronically stored information (ESI). At the federal level, it is incredibly important that your attorney has a comprehensive understanding of the Federal Rules of Civil Procedure. This is something that you’ll want to check for upfront. There are also a number of courts for which local e-discovery rules have been implemented. If your case is being tried in an area where local rules have been implemented, it’s important that your attorney is aware of and understands these rules.
2. General Competence in Representation
Whether strict local guidelines for e-discovery are in place or not, it is important that your attorney displays a general competence and honest effort when representing your case. When choosing your e-discovery lawyer, make certain that he or she has the knowledge and skills necessary to carry out (or delegate) the discovery of electronic information. Failure on his or her part to do so in a timely fashion could very well cost you the case.
Katherine Maynard makes a great point in her article on the ethical obligations arising in electronic discovery court cases:
“It is hard to imagine that in this age of technology – where the average person processes about 100 emails per day and more than ninety percent of the information in the world is being generated in electronic format – a lawyer could adequately represent her client in litigation on most subject matters without requesting or producing some form of electronically stored information.”
Now, this isn’t to say that ESI will come up in every single case, but it is, for the most part, true. Katherine goes on to point out that, even when the lawyers of both parties agree that ESI doesn’t need to come up in the court proceeding, their responsibility to represent their clients to the fullest should be at least questioned.
3. Adherence to the Ethics of E-Discovery
In general, this means that your lawyer is not only aware of the rules that govern electronic data discovery in litigation, but also intends to abide by them in representing your case. This, of course, should be true of all attorneys, not just those dealing with e-discovery. With regards to our focus, though, ethics implicates the responsibility to preserve electronically stored information, the respect for third parties that might be involved in a discovery request, and the fair treatment of the opposing counsel. A lack of respect on the part of your attorney for any one of these responsibilities will likely create bigger problems down the road.