Electronically Stored Information: e-discovery and HLG

Electronically stored information (“ESI”) is information that is stored in technology having electrical, digital, magnetic, wireless, optical, electromagnetic or similar capabilities. Electronic Discovery, also known as e-discovery, is the use of legal means to obtain ESI in the course of litigation for evidentiary purposes.

My relationships with California ESI/E-discovery gurus, Jim Hennenhoefer and Gordon Cruse, have provided opportunities to learn about this developing area of the law. Gordon and I are members of the National AAML’s ESI/E-discovery Committee, and we have given presentations on the topic with Texas luminary, Ken Raggio. Ken’s Technology Committee consistently gives excellent talks and demonstrations at the AAML’s annual meetings. Although it’s hard to out-geek these experts, I find it an interesting and important new world that encompasses family law as it does traditional civil litigation.

Until now, California lawyers have had little ESI/e-discovery guidance at the state level. Ideas and legal opinions have issued from other states and from federal law, but none had considered California’s particular ethical rules and standards. Thankfully, the State Bar of California’s Standing Committee on Professional Responsibility and Conduct (“COPRAC”) has now done this. Last week it issued its Formal Opinion No 2015-193.

The Opinion points out that electronic document creation and/or storage, and electronic communications have become commonplace in modern life, and discovery of ESI is now a frequent part of almost any litigated matter. It emphsasizes that attorneys who handle litigation may not ignore the requirements and obligations of electronic discovery.

It acknowledges that, while not every litigated case involves e-discovery, in today’s technological world almost every litigated case potentially does. “The chances are significant that a party or a witness has used email or other electronic communication, stores information digitally, and/or has other forms of ESI related to the dispute.”

Under the Opinion, attorneys handling e-discovery should be able to perform (either by themselves or in association with competent co-counsel or expert consultants) the following:

• Initially assess e-discovery needs and issues, if any;
• Implement/cause to implement appropriate ESI preservation procedures;
• Analyze and understand a client’s ESI systems and storage;
• Advise the client on available options for collection and preservation of ESI;
• Identify custodians of potentially relevant ESI;
• Engage in competent and meaningful meet and confer with opposing counsel concerning an e-discovery plan;
• Perform data searches;
• Collect responsive ESI in a manner that preserves the integrity of that ESI; and
• Produce responsive non-privileged ESI in a recognized and appropriate manner.

Herring Law Group recognizes the risks and responsibilities. We initially assess our cases for ESI/e-discovery issues. We send “ESI hold” letters to opposing counsel when necessary. We think about preserving ESI, whether it might be on servers, in storage, or on personal computers and portable systems.

When necessary, we also retain expert consultants. They can assess our clients’ ESI systems and assist in meeting discovery demands. They can also help us formulate offensive approaches to opponents’ systems and data. On a case-by-case basis, we consider them an important part of our team, as we do other experts like forensic accountants, mental health professionals and vocational evaluators, for instance.