California Litigation Review
E-Discovery Skills to Satisfy the Ethical Duty of Competence and Avoid Sanctions

By Michael F. Kelleher

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“Not every litigated case involves e-discovery. Yet, in today’s technological world, almost every litigation matter potentially does."
-- Formal Opinion No. 2015-193 of the Standing Committee On Professional Responsibility and Conduct of The State Bar of California

Michael Kelleher

Michael Kelleher is an attorney, litigation consultant and trial technician providing trial graphics, litigation technology and trial strategy consulting at Cogent Legal in Oakland. Michael’s career has included roles as a nuclear submarine officer, a litigation partner at Folger Levin & Kahn LLP, and general counsel to DS-IQ, an advertising technology company. Michael is a member of the Executive Committee of the Litigation Section of the California State Bar. Michael is the editorial consultant on the Matthew Bender Practice Guide: California E-Discovery and Evidence, published by LexisNexis.

In 2015, California attorneys received two reminders about the place of e-discovery competence in the ethical obligations of attorneys. The first was Formal Opinion No. 2015-193 of the Standing Committee On Professional Responsibility and Conduct of the California State Bar ("Committee Opinion"), and the second was the case of HM Electronics, Inc. v. R.F. Technologies, Inc. (S.D.Cal. 2015) 2015 WL 4714908 ("HM Electronics").

The Committee Opinion opines that an attorney may violate ethical duties of competence by failing to understand and perform e-discovery skills. The Committee Opinion set out a list of nine e-discovery tasks that "attorneys handling e-discovery should be able to perform (either by themselves or in ssociation with competent counsel or expert consultants)." In the HM Electronics opinion, Magistrate Judge Dembin cited with approval the Committee Opinion and its list of nine e-discovery skills for competence.

The nine skills from the Committee Opinion are:

  1. Initially assess e-discovery needs and issues, if any;

  2. Implement/cause to implement appropriate ESI preservation procedures;

  3. Analyze and understand a client's ESI systems and storage;

  4. Advise the client on available options for collection and preservation of ESI;

  5. Identify custodians of potentially relevant ESI;

  6. Engage in competent and meaningful meet and confer with opposing counsel concerning an e-discovery plan;

  7. Perform data searches;

  8. Collect responsive ESI in a manner that preserves the integrity of the ESI; and

  9. Produce responsive non-privileged ESI in a recognized and appropriate manner.

This article will first discuss some background about the Committee Opinion and HM Electronics. With that background, the article will then review the nine e-discovery skills and discuss some of the aspects that competent attorneys should consider in handling e-discovery.

The Committee Opinion

The Standing Committee On Professional Responsibility and Conduct issues advisory opinions that discuss a legal issue in the context of a set of hypothetical facts.11

In the Committee Opinion, the Standing Committee addresses the issue of "What are an attorney's ethical duties in the handling of discovery of electronically stored information?" In addressing this issue, the Committee Opinion interprets Rules 3-100 and 3-110 of the Rules of Professional Conduct of the State Bar of California,2 Business and Professions Code section 6068(e),3 and Evidence Code sections 952, 954 and 955.4

The hypothetical facts in the Committee Opinion involve an unprepared Attorney who agrees at a case management conference to entry of a court order providing for an outside Vendor to perform a key word search of Client's network for electronically stored information ("ESI"). Attorney mistakenly believes that a clawback agreement will protect Client and that Client has already provided all the responsive documents. Thus, Attorney agrees to a set of search terms, and allows Opposing Counsel's Vendor to search and produce the ESI to Opposing Counsel with no preparation or later review of the results by Attorney.

Of course, this goes badly. Attorney later faces a sanctions motion from Opposing Counsel because the ESI search reveals that much relevant electronic information had been destroyed by routine processes that were not halted for the litigation. The broad key words used to search the network also uncovered privileged information and valuable proprietary but non-responsive information.

Violation of the Duty of Competence from Attorney’s Own Acts and Omissions

The Committee Opinion starts with the question whether the Attorney violated the duty of competence of Rule 3-110 of the Rules of Professional Conduct by his own acts and omissions. The Committee Opinion observes that a violation of the duty of competency requires more than a single act of negligent legal representation; rather, a violation of the duty of competency requires intentional, reckless or repeated failures.

The Committee Opinion observes that e-discovery is evolving and growing in importance. In 2006, the Federal Rules of Civil Procedure were amended to provide for e-discovery. In 2009, the California Legislature passed California's Electronic Discovery Act with many provisions parallel to the federal rules. The Committee Opinion notes that because there is little case law interpreting the California statute, federal decisions are used to help interpret California law (citing Toshiba America Electronic Components, Inc. v. Superior Court (Lexar Media, Inc.) (2004) 124 Cal. App.4th 762, 770 ("Federal decisions are compelling where the California law is based upon a federal statute or the federal rules.").)

The Committee Opinion states that Attorney in the hypothetical case failed to prepare for e-discovery, and, knowing that he lacked sufficient expertise, failed to bring in an expert as it became clear that e-discovery would be involved in the case. These facts, the Committee Opinion concludes, might implicate a finding of a breach of Attorney's duty of competence.

Attorney’s Failure to Supervise as a Breach of the Duty of Competence

The Committee Opinion next analyzes whether Attorney in the fact pattern failed to meet his duty to supervise. Under rule 3-110, an attorney remains responsible to the court, and must supervise experts or client personnel who assist the attorney. The Committee Opinion observes:

An attorney must maintain overall responsibility for the work of the expert he or she chooses, even if that expert is the client or someone employed by the client. The attorney must do so by remaining regularly engaged in the expert's work, by educating everyone involved in the e-discovery workup about the legal issues in the case, the factual matters impacting discovery, including witnesses and key evidentiary issues, the obligations around discovery imposed by the law or by the court, and of any relevant risks associated with the e-discovery tasks at hand. The attorney should issue appropriate instructions and guidance and, ultimately, conduct appropriate tests until satisfied that the attorney is meeting his ethical obligations prior to releasing ESI. (Committee Opinion, p. 5.)

The Committee Opinion goes on to opine that Attorney may have violated the duty of competency in failing to supervise and direct the IT manager for Client and to supervise the Vendor in the search of the network.

Violation of the Duty of Confidentiality

The Committee Opinion next discusses whether Attorney has violated the "fundamental duty of an attorney . . . '[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.'" (Bus. & Prof. Code, § 6068, subd. (e)(1).)

The Committee Opinion concludes again that the facts could constitute a breach of Attorney's duty to client. The Committee Opinion discusses that Attorney's actions exposed privileged communications and proprietary secrets of Client. Moreover, the "clawback" agreement may not undo the disclosure, because such agreements typically do not address trade secrets and because opposing counsel may argue that the disclosures were not inadvertent as Attorney cooperated in setting the search terms and allowing the search. 5

HM Electronics v. R.F. Technologies

The HM Electronics decision is a report and recommendation for sanctions. In a detailed 78-page slip opinion, Magistrate Judge Dembin ordered sanctions against defendant R.F. Technologies ("RFT"), RFT's CEO, and against RFT's attorney personally and against his law firm. An annotated copy of the opinion and docket sheet is available athttp://kelleher.biz/blog/hmelectronics/.

HM Electronics involved trade libel and related claims about the reliability of plaintiff's headsets for drive-through restaurants. Defendant RFT had created and disseminated a fake report showing maintenance problems with plaintiff's headsets. After plaintiff sued in December 2012, RFT's CEO requested and received a zip file from RFT's head of sales containing all the documents relating to the fake report. However, RFT did not produce this zip file until two and a half years later. RFT did not issue a litigation hold to preserve documents, and in fact, RFT's CEO sent an email to the sales force directing them to destroy all printed and electronic copies of pictures in the fake report. Defendants then provided discovery responses claiming all documents had been produced even though searches of ESI had not even begun. When the ESI was finally searched, over 150,000 pages were withheld without review and without a privilege log because the documents included words such as "confidential," a word used in the footer of every RFT email. Another 375,000 pages were produced after the close of discovery—these pages had been missed when a vendor unplugged a disk drive too soon in transferring files.

Plaintiffs moved for Rule 37 sanctions, and Magistrate Judge Dembin added his own motion on behalf of the court on Rule 26(b)(3) sanctions for improper discovery certifications. On the eve of the sanctions hearing, the case settled, but the hearing went forward because plaintiffs did not withdraw their Rule 37 motion and because the court's own decision to impose Rule 26 sanctions proceeds despite any settlement.

HM Electronics ordered sanctions on five grounds:

  1. Rule 26(g)(3) sanctions for discovery responses that defendants knew were false, and that the attorneys should have discovered were false had they undertaken a reasonable inquiry.

  2. Rule 37 sanctions against RFT, its attorney and its law firm for failing to craft and implement a litigation hold or communicate the need to preserve relevant documents.

  3. Rule 37 sanctions against RFT because documents were destroyed after RFT's CEO sent an email to its sales force directing them to "destroy" documents relevant to the lawsuit.

  4. Rule 37 sanctions against RFT, its attorney and its law firm for allowing the lawyers and vendor to withhold over 150,000 pages of ESI from production without further review and without a privilege log based on limiting search terms such as the word "confidential."

  5. Rule 37 sanctions against RFT, its attorney and its law firm for failing to produce 375,000 pages of ESI until well after close of discovery due to failure to perform quality control checks or to supervise their e-discovery vendor.

Nine Ethical Duties

1. Initially assess e-discovery needs and issues

The failures of counsel in both the Committee Opinion and the HM Electronics decision start with a failure to plan for e-discovery:

Depitcts the timeline of e-discovery. December 4, 2012, Complaint filed. Deccember 6, 2012 RFT CEO gets zip from Sullivan. December 19, 2012, RFT CEO destroy email. August 26, 2013, HME requests documents. September 9, 2013, Appearance of O'leary for RFT. October 18, 2013, RFT doc & rog response. November 1, 2013 RFT starts gethering ESI. November 25, 2013, RFT begins hard copy doc production. December 12, 2013, supplemental RFT response.  December 2013 to February, 2014, Assurance of complete production. March 2014, RFT's ESI vendor to search 300 GB. April 14, 2014, Zip produced at Sullivan deposition. September 3, 2014, RFT declearation, seach with Boolean limiters. September to November 2014, RFT production 150,000 pages of confidential documents withheld. January 6, 2015, plaintiff's motion for Rule 37 sanctions. January to Aprikl, 2015, Post-discovery document dump of 375,000 pages. April 2015, RFT zip produced with missing files. July 24, 2016, court's own motion regarding Rule 26g3 sanctions. August 4, 2014, settleme3nt pending, trial off calendar. August 5, 2015, sanction hearing.  August 7, 2015, sanction order.
Figure 1: Timeline of HM Elctronics v. RFT
  • In the Committee Opinion, Attorney arrives at the case management conference without having
    considered e-discovery, and is forced into agreeing to an order allowing broad searches of his Client's network.

  • In HM Electronics, defendants' counsel never advised defendants to preserve ESI, and did not start to gather ESI for 11 months after the complaint. Before defendants had searched their ESI (other than the CEO's initial gathering of an unproduced zip file), defendants began making unequivocal and false statements in response to discovery. For example, as shown in the timeline below, before they had searched ESI, defendants claimed to have no documents about repair frequency on plaintiff's headsets, a central issue in the trade libel lawsuit.

  • Counsel must talk to clients to understand how their clients and other parties use email, spreadsheets, word processing, the internet, texting, databases and other forms of ESI that might relate to the lawsuit.

2. Implement/cause to implement appropriate ESI preservation procedures

In planning and preparing for e-discovery, an attorney must focus on how ESI should be preserved, a process often referred to as a "litigation hold." Identifying the proper scope of ESI to be preserved and implementing a plan to preserve it can be complicated, and counsel should consider engaging expert help to assist.

Both the Committee Opinion and the HM Electronics decision discuss failures to preserve ESI. In the hypothetical facts of the Committee Opinion, "Attorney hires an e-discovery expert ("Expert"), who accesses the data, conducts a forensic search, and tells Attorney potentially responsive ESI has been routinely deleted from Client's computers as part of Client's normal document retention policy, resulting in gaps in the document production." In HM Electronics, counsel failed to instruct the client to preserve documents because the client's CEO assured counsel that the client did not "delete documents in the normal course of business."

Figure 2, Timeline. December 4, 2012, complaint filed. December 6, 2012, RFT CEO gets zip from Sullivan. December 19, 2012, RFT CEO destroy email. August 2013, HME requests documents. Note: Request Number 28 sought documents regarding "opinions, statements, andor declarations regarding the repair frequency of any HME Drive-Thru Headset Production. September 9, 2013, Appearance of O'Leary for RFT. October 18, 2013, RFT doc and reg response. November 1, 2013, RFT starts gathering ESI. December 12, 2013, supplemental RFT response. NOTE: 12/12/13 supplemental response: "Responding Party has no documents responsive to this request." December 2013 to February 2013, assurances of complete production. March 2014 RFT's ESI vendor to search 300 GB.
Figure 2: Assertions Before Search of ESI that Documents Did Not Exist (HM Electronics v. RFT)

Preserving ESI for litigation requires that attorneys communicate with client custodians and secure their agreement to preserve ESI. In Cedars-Sinai Med. Ctr. v. Superior Court (1998) 18 Cal.4th 1, 12 the California Supreme Court stated that "a lawyer customarily instructs the client to preserve and maintain any potentially relevant evidence" to avoid sanctions and to avoid the possibility of "discipline, including suspension and disbarment, for participating in the suppression or destruction of evidence." (Citing Bus.& Prof. Code, § 6106 ("The commission of any act involving moral turpitude, dishonesty or corruption . . . constitutes a cause for disbarment or suspension."); § 6077 (attorneys subject to discipline for breach of Rules of Professional Conduct); Rules Prof. Conduct, rule 5-220 ("A member shall not suppress any evidence that the member or the member's client has a legal obligation to reveal or to produce.").)

A party, or anyone who anticipates being a party, to a lawsuit has a duty to not destroy evidence. (Zubulake v. UBS Warburg LLC (S.D.N.Y. Oct 2003) 220 F.R.D. 212, 217.) A litigant "is under a duty to preserve what it knows, or reasonably should know, is relevant in the action, is reasonably calculated to lead to the discovery of admissible evidence, is reasonably likely to be requested during discovery and/or is the subject of a pending discovery request." (Ibid.)\

Counsel and client should consider how broadly to gather data and from what sources. For example, counsel should consider whether gathering and preservation can reasonably be limited to a set of key custodians and their data locations. Early in the case before all the issues are known, counsel should consider gathering data more broadly without applying any particular search filter limitations so that data will have been gathered and preserved even if the scope of the case later expands with new issues. Counsel must work to implement a reasonable and defensible plan to preserve a set of the necessary ESI.

Counsel must also understand the business processes of a client and how those processes may destroy ESI that should be preserved. For example, does the client have a data retention policy that automatically deletes emails after a certain time period? Potentially relevant ESI should be protected from such procedures by gathering and segregating the ESI, or by suspending the operation of the autodelete rule.

Counsel should also consider whether and how data must be preserved if a client's employees depart. Many companies delete an employee's emails and image over a departed employee's computer. Counsel should understand these processes and make sure the policies are altered as necessary to preserve relevant ESI.

Counsel should also consider writing a preservation demand to opposing counsel early in the case so that preservation obligations are understood and can be agreed upon or resolved early before the court.

3. Analyze and understand a client’s ESI systems and storage

An attorney needs to work with the client to investigate the facts and understand where relevant ESI of the parties and non-parties would be stored. This inquiry will likely uncover overlapping sources of duplicate ESI. For example, duplicate copies of a witness's email may be stored on an email server, individual computers and mobile devices with local email copies, and network backup systems. Counsel must understand with the help of the client and perhaps an expert whether any of these sources may be disregarded in search because they are duplicative or because the cost of searching them makes it unreasonable in light of the issues in the case. Counsel must also consider that seemingly "duplicate" copies of ESI may nevertheless hold important and relevant information: for example, a recipient's email may have metadata reflecting whether an email was received, opened and/or responded to.

4. Advise the client on available options for collection and preservation of ESI

Both the Committee Opinion and the HM Electronics decision illustrate the consequences when counsel does not actively work with a client to develop a system to collect and preserve ESI.

In the Committee Opinion, the Attorney failed to work with his Client before the meet and confer to identify and preserve relevant ESI. At the meet and confer, the Attorney compounded the error by agreeing to Vendor's direct access to Client's computer systems without Attorney first reviewing the information on that system.

In the HM Electronics decision, defendants' counsel never advised defendants to preserve ESI, and the collection and search of ESI were late and haphazard with significant gaps.

How to collect potentially relevant ESI can also present challenges. Is forensic gathering of data by an expert necessary (e.g., in a trade secret case where records of file access times may be needed) or will search and gathering by individual custodians be sufficient? Because these types of decision are subject to later challenge by opposing counsel, counsel should consider trying to reach agreement or a court order on the scope of discovery.

5. Identify custodians of potentially relevant ESI

Particularly when corporations are involved in a lawsuit, conversations about ESI will often need to
involve multiple custodians.

The HM Electronics decision illustrates that counsel cannot rely only on communications with just a single contact at a corporate client, but must engage in at least a sampling of documents and interviews with other witnesses with knowledge.

The HM Electronics decision states:

"Instead of familiarizing himself with his client's ESI and embracing transparency and collaboration in the discovery process, lead counsel chose to sign false discovery responses without making any efforts to assure that the responses accurately reflected the Defendant's documents. [¶] It was also not reasonable to sign discovery responses denying the existence of documents based solely on Defendant Noorian's word. While the Advisory Committee Notes on Rule 26(g) do provide that "the attorney may rely on assertions by the client" in making a reasonable inquiry, that is true only "as long as that reliance is appropriate under the circumstances." FED. R. CIV. P. 26, subdivision (g) Advisory Committee Notes (1980 Amendment). Asking Mr. Noorian and accepting his response without asking other employees or collecting or sampling documents was not reasonable. . .. The attorneys should have asked . . . (all of whom were high level employees privy to responsive emails) whether they knew of the existence of documents. The attorneys could have identified these custodians by virtue of their positions, even without the benefit of reviewing any of the responsive documents. Even if Defendant Noorian lied to his attorneys or forgot about the existence of documents, a reasonable inquiry made to any of these other custodians would have revealed the existence of responsive documents." (HM Electronics, supra, 2015 WL 4714908 at p. *15)

Counsel should also pay attention to the administrative challenges of implementing a litigation hold. Counsel should typically instruct a client in writing as to the need to preserve ESI, and make sure that custodians understand and will comply. In Zubulake v. UBS Warburg LLC (S.D.N.Y. 2004) 229 F.R.D. 422, 439, one of a set of leading e-discovery opinions, the court summarized the communications necessary with custodians of ESI:

"In sum, counsel has a duty to effectively communicate to her client its discovery obligations so that all relevant information is discovered, retained, and produced. In particular, once the duty to preserve attaches, counsel must identify sources of discoverable information. This will usually entail speaking directly with the key players in the litigation, as well as the client's information technology personnel. In addition, when the duty to preserve attaches, counsel must put in place a litigation hold and make that known to all relevant employees by communicating with them directly. The litigation hold instructions must be reiterated regularly and compliance must be monitored. Counsel must also call for employees to produce copies of relevant electronic evidence, and must arrange for the segregation and safeguarding of any archival media (e.g., backup tapes) that the party has a duty to preserve."

6. Engage in competent and meaningful meet and confer with opposing counsel concerning an e-discovery plan

In California state court, Rule of Court 3.724(8) requires that the attorneys meet and confer at the outset of the case regarding:

(8) Any issues relating to the discovery of electronically stored information, including:

(A) Issues relating to the preservation of discoverable electronically stored information;

(B) The form or forms in which information will be produced;

(C) The time within which the information will be produced;

(D) The scope of discovery of the information;

(E) The method for asserting or preserving claims of privilege or attorney work product, including whether such claims may be asserted after production;

(F) The method for asserting or preserving the confidentiality, privacy, trade secrets, or proprietary status of information relating to a party or person not a party to the civil proceedings;

(G) How the cost of production of electronically stored information is to be allocated among the parties;

(H) Any other issues relating to the discovery of electronically stored information, including developing a proposed plan relating to the discovery of the information.

Similarly, federal courts in California require e-discovery planning for the Fed. R. Civ. Proc. 26(f) conference. (See, e.g., Northern District of California E-Discovery ESI Guidelines, available at http://www.cand.uscourts.gov/eDiscoveryGuidelines.)

7. Perform data searches

Both the Committee Opinion and the HM Electronics decision highlight the importance of proper searching to e-discovery competence. Moreover, both authorities make clear that even when counsel delegates search to a client and/or vendor, counsel must remain involved in a supervisory role to make sure the search is done correctly without errors.

For example, the Attorney in the hypothetical of the Committee Opinion does not understand or investigate the large scope of data that will be revealed by the broad search terms he agreed to use. Counsel agreeing to search terms for a set of client data should test those search terms with the help of a vendor. Those search term tests often reveal unexpected problems with search terms (e.g., the terms are too broad and pull up many unrelated documents).

Attorney also allowed direct access by the Opposing Counsel's Vendor to the Client's computer network. As the Committee Opinion observes, such direct access raises confidentiality concerns, and is not routine: "Special issues may arise with any request to secure direct access to electronically stored information or to computer devices or systems on which it resides. Protective orders should be in place to guard against any release of proprietary, confidential, or personal electronically stored information accessible to the adversary or its expert." (Committee Opinion at p. 5, fn. 8, citing The Sedona Principles Addressing Electronic Document Production (2nd Ed. 2007), Comment 10(b).)

Another search/supervision problem in HM Electronics occurred because a vendor failed to search and produce 375,000 documents because a drive was disconnected prematurely in transferring data. The HM Electronics judge found that counsel should have discovered this error earlier because the volume and nature of data from other sources should have alerted counsel to the problem.

The preferred methods for searching ESI depend upon many factors, including the form of the ESI (e.g., database or email or digital photos) and the volume of the ESI and the expertise needed to perform an adequate search. While counsel may sometimes delegate a search to client personnel, such delegation can be hazardous if the client is too narrow in the search and responsive documents are missed. Thorough searching can be complicated and beyond the ability of most clients. For example, a text search in Outlook for responsive email will miss scanned images attached to emails because those images often do not have searchable text.

8. Collect responsive ESI in a manner that preserves the integrity of the ESI

The mode of collecting ESI can alter the ESI's "metadata," and counsel should understand this and guard against it as necessary.

Metadata is the information that a computer operating system or program creates in order to store, track and access a particular computer file. For example, the electronic form of an email is stored with fields of information identifying the sender, the recipient, and the date and time the information was sent. As another example, an electronic version of a Microsoft Word may include data as to when it was created, last opened and edited, and even edits in "track changes" mode.

Some means of gathering or producing ESI alter and/or fail to preserve ESI. A simple example is that printing out emails takes away the ability to sort those emails by date or sender and removes the ability to search those emails. (For these reasons, printing ESI for production is seldom acceptable.)

Not all metadata is necessary for every case, and preserving metadata can be complicated and expensive. Thus, counsel that believes that some metadata is necessary should attempt to agree in a meet and confer about what metadata is needed, and specify the desired metadata in its document requests.

A common agreement is that email is produced with metadata fields of sender, recipient, subject, and other emails fields in a database load file accompanying images of the email. These load files allow the emails to be searched and sorted in a litigation document database (e.g., Concordance, Relativity, CaseMap, etc.) in a manner similar to what was available on the original email system. Another common agreement is that spreadsheets are produced in native electronic form so that formulas can be viewed and understood.

9. Produce responsive non-privileged ESI in a recognized and appropriate manner

As discussed above, the parties should meet and confer regarding the form of production of ESI. (Rule of Court 3.724(8).) California's Electronic Discovery Act allows a party to request a form of production of ESI. The responding party may comply with the form requested, or if the parties do not agree on a form, the responding party may "produce the information in the form or forms in which it is ordinarily maintained or in a form that is reasonably usable." (Cal. Code Civ. Proc. § 2031.280(d)(1).)

The concept of "reasonably usable" includes the issue of whether the information remains in a searchable and equally functional form as produced. For example, Excel spreadsheets may have formulas embedded in the electronic format, and those formulas are usually hidden in the print version of a sheet. When a request has been made for Excel documents in native form, courts will often require production in that form. (See, e.g., Mitsui O.S.K. Lines v. Seamaster Logistics (N.D. Cal. Oct 12, 2011) 2011 US Dist LEXIS 117922 ("it is therefore improper to take an electronically searchable document and either destroy or degrade the document's ability to be searched"); see also Matthew Bender Practice Guide: California E-Discovery and Evidence §§ 9.47-9.56.)

Endnotes

1 The Committee Opinion states: "This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the State Bar of California. It is advisory only. It is not binding upon the courts, the State Bar of California, its Board of Trustees, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar."  (State Bar Formal Opinion No. 2015-193, p. 7.) ("Committee Opinion.") Back

2 Rule 3-110 of the Rules of Professional Conduct provides:

Rule 3-110 Failing to Act Competently

(A) A member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence.

(B) For purposes of this rule, "competence" in any legal service shall mean to apply the 1) diligence, 2) learning and skill, and 3) mental, emotional, and physical ability reasonably necessary for the performance of such service.

(C) If a member does not have sufficient learning and skill when the legal service is undertaken, the member may nonetheless perform such services competently by 1) associating with or, where appropriate, professionally consulting another lawyer reasonably believed to be competent, or 2) by acquiring sufficient learning and skill before performance is required.

Rule 3-100(A) of the Rules of Professional Conduct provides:

Rule 3-100 Confidential Information of a Client

(A) A member shall not reveal information protected from disclosure by Business and Professions Code section 6068, subdivision (e)(1) without the informed consent of the client, or as provided in paragraph (B) of this rule. Back

3 Business and Professions Code section 6068(e)(1) provides it is a duty of a member: "To maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client." Back

4 Evidence Code sections 952, 954 and 955 provide for the attorney client privilege:

952. As used in this article, "confidential communication between client and lawyer" means information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship.

954. Subject to Section 912 and except as otherwise provided in this article, the client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer if the privilege is claimed by: (a) The holder of the privilege; (b) A person who is authorized to claim the privilege by the holder of the privilege; or (c) The person who was the lawyer at the time of the confidential communication, but such person may not claim the privilege if there is no holder of the privilege in existence or if he is otherwise instructed by a person authorized to permit disclosure. The relationship of attorney and client shall exist between a law corporation as defined in Article 10 (commencing with Section 6160) of Chapter 4 of Division 3 of the Business and Professions Code and the persons to whom it renders professional services, as well as between such persons and members of the State Bar employed by such corporation to render services to such persons. The word "persons" as used in this subdivision includes partnerships, corporations, limited liability companies, associations and other groups and entities.

955. The lawyer who received or made a communication subject to the privilege under this article shall claim the privilege whenever he is present when the communication is sought to be disclosed and is authorized to claim the privilege under subdivision (c) of Section 954. Back

5 As explained in the Matthew Bender Practice Guide: California E-Discovery and Evidence, "Clawback agreements are often used in large-scale document matters in which the sheer number of items makes inadvertent production likely. . . . Under the prototypical clawback agreement, the producing party agrees to conduct the best privilege review it can, given the time constraints of the matter and the bulk of materials to be reviewed and produced. Privileged documents that are inadvertently disclosed are returned to the producing party." (Matthew Bender Pract. Guide at § 3.14.)

Section 2031.285 of the California Code of Civil Procedure is often referred to as a statutory "clawback" because it provides that a party that produced ESI that is subject to a claim of privilege or work product may notify the receiving party. After such a notice is given, the receiving party may not use the information unless the receiving party challenges the legitimacy of the claim of protection and the court resolves the challenge in the receiving party's favor. In federal court, Federal Rule of Civil Procedure 26(b)(5)(B) provides a similar mechanism for resolving claims of inadvertent production. Additionally, Federal Rule of Evidence 502 provides limitations on waiver for the disclosure of privileged or work product materials. For inadvertent disclosures, the rule provides that the disclosure does not operate as a waiver when (1) the disclosure is inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error.reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error. Back