As the bench and the bar move towards greater fillment of FRCP 1 and the “just, speedy and inexpensive” determination of all matters, we see an increased focus on attorney accountability with regards to eDiscovery.
Ultimately it comes down to a question of knowledge. As iterated by the New York Rules of Professional Conduct Rule 1.1 - A lawyer should provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Lawyers have always been excellent at adapting to evolving case law, but the recent New York amendments reiterate the fact that lawyers have traditionally been slow to embrace technology. Technology has histori- cally been left to the patent attorneys. However, with this amendment, attorneys dismiss the importance of understanding their clients’ information ecosystems at their own risk.
The key take-away point discovery of any kind, you base with regards to data nologies; don’t just rely on sonnel. You need to know to look for and how to
In the alternative, you may outside expert to assist in ing your client zealously ing something as it does know something. Would lifts yourself in a tort case
here is that if you are involved in must increase your knowledge management and related tech- talking with your client’s IT per- the right questions to ask, issues troubleshoot.
bring a client representative or such discussions. Represent- has as much to do with know- with admitting when you do not you try to learn about hydraulic where your client was injured
when a fork lift dropped a load of bricks? Maybe, and it would be wise to read up on the subject, but you would also consult a mechanical engineer. So, when it comes to eDiscovery issues, where sanctions can in- clude adverse inferences or outright dismissal, do you want to stake your client’s claim on an article you read about preservation obligations and computer forensics, or would you rely on a tested expert with years in the technology trenches? On the other hand, maybe you can just ignore the issue all together…maybe the judge won’t even notice.
Matthew F. Knouff, Esq. is the e-Discovery Counsel for Complete Discovery Source, a full service electronic discovery provider, headquartered in New York City with offices in NY and Washington, DC. He is also a member of the Sedona Conference Working Group on Electronic Document Retention and Production. Ad- ditionally, Counselor Knouff serves on the Board of Directors of the New York County Lawyers’ Assoc., Cy- berspace Law Section. He is on the faculty of the OLP Advance eDiscovery course. Counselor Knouff can be reached at
mknouff@cdslegal.com.
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