A Lawyer’s Obligation to be Technologically Competent – Part 3

February 01, 2019

This is Part 3 in a multi-part blog discussing various critical requirements that can serve as the road map to allow a lawyer to fulfill his/her duty of technological competence. [Click here to read Part 1 and here to read Part 2]..

After you have assessed the discovery needs and issues in a given matter, and you have implemented appropriate preservation mechanisms, an advisable next step is to analyze and understand your client’s electronic information systems and the ways in which that data is stored.

Because each organization implements its own combination of hardware (enterprise servers, local desktops, departmental servers, hand-held devices) and software (the Microsoft Suite, Salesforce Business, Zoho One), this may be a good time to consult with a technical expert.  Indeed, if the client has an in-house IT team, it is critical to coordinate efforts with that team.  They will be able to educate you on what data exists, where it resides, and for what period of time.  This information will allow the attorney to assess the ESI that exists in the context of the legal scope and likely discovery obligations.  It may also be worth the expense of retaining a third-party vendor depending on the circumstances of the case, and the client’s in-house abilities.  If you don’t fully understand the systems in place, the way in which data is stored in those systems, and for how long, you run the risk of overlooking sources of potentially relevant ESI.  You also run the risk of committing to your adversary to produce data that, for example, has not existed for the last 6 months because of the client’s auto-deletion policy.