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California Lawyers have eDiscovery duty

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California leading the way for Legal Ethics that include #eDiscovery standards.

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Finally, California’s long-awaited opinion on the legal and ethical duties of attorneys in eDiscovery has been finalised. Though not groundbreaking, the opinion takes into account the modern standard of technology and longevity of established legal ethics, balancing them with the complex and ever-changing nature of electronic Discovery in legal, business and social contexts.

The Opinion (Committee on Professional Responsibility and Conduct Formal Opinion No. 2015-193) clearly states that an attorney without the technical know-how and capabilities of adequately managing and retrieving digital, online and electronically stored information party to pending or potential litigation must seek the adequate assistance -prior- to the discovery process. Though not every case will involve the technical elements of eDiscovery and electronic evidence, a compliant attorney must analyse the potential for technical implications and discovery prior to engagement in discovery proceedings, taking into account the two sides of the dispute, how the discovery will be conducted and if they are capable of retaining, managing, presenting the evidence or should seek guidance or more information.

The Opinion itself states that: On a case-by-case basis, the duty of competence may require a higher level of technical knowledge and ability, depending on the e-discovery issues involved in a matter, and the nature of the ESI. Competency may require even a highly experienced attorney to seek assistance in some litigation matters involving ESI. An attorney lacking the required competence for e-discovery issues has three options:

(1) acquire sufficient learning and skill before performance is required;

(2) associate with or consult technical consultants or competent counsel; or

(3) decline the client representation.

Lack of competence in e-discovery issues also may lead to an ethical violation of an attorney’s duty of confidentiality.
This creates a greater onus on attorneys, heightens the stakes in ethical compliance and malpractice standards, but also creates a far better standard of security and obligation in eDiscovery proceedings. Technical compliance and know-how need not be expensive thanks to the vast developments in legal tech, and so attorneys should utilise this technology to assist the speed of the discovery process and to protect themselves from not obliging with legal and ethical standards and duties of care.

Role of WebPreserver

WebPreserver is an innovative eDiscovery tool, essential for the effective and easy creation of evidence from social media and preservation of digital content for litigation purposes; an essential cost and time effective tool for legal professionals, litigation support and law enforcement officials.

With the easy installation of a Plug-in and single-click capture technology, WebPreserver software creates snapshots of evidence from any content place in the internet and stores them in PDF and WARC formats for use in litigation. Digital content is authenticated in line with Federal Rules of Evidence, the E-Sign Act and other standards of compliance by way of a digital e-signature and automated time-stamp.

Not only is strong, reliable evidence created form online content, WebPreserver software also provides secure resources for the archiving, preservation and sharing of this content. Once a Snapshot is created, it can be downloaded or stored on our online platform and shared with clients and colleagues in personal folders, with the additional features of keyword tagging.

Ensure that when engaging in litigation you maintain a high standard of records management and technical compliance; WebPreserver is a simple but effective means of doing this. Avoid sanctions and additional administrative and Discovery costs with the proper utilisation of this leading eDiscovery software.

The information and materials on this blog are provided for general and informative purposes only and are not intended to be construed as legal advice. Content on this blog is not intended to substitute the advice of a licensed attorney, as laws are subject to change and vary with time, from jurisdiction to jurisdiction. Content on this blog may be changed without notice and is not guaranteed to be complete, correct or up-to-date.

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