Technology Competence in eDiscovery: Master the Fundamentals

In the rapidly evolving world of legal technology, maintaining a high level of technical competence is more than just a professional advantage—it’s an ethical obligation for attorneys. Imagine trying to navigate uncharted waters without a compass. That’s what it feels like to practice law today without a solid grasp of technology.

As technology continues to reshape the legal landscape, particularly in areas like eDiscovery, mastering the fundamentals isn’t just optional—it’s essential. The complexity and constant change in legal tech can seem daunting. Staying ahead of these developments is our ethical responsibility, allowing us to provide competent representation and uphold our profession’s integrity—and we’ll show you how it’s not that daunting at all!

In this article, we’ll look at the ethical duty of technology competence and explain what it means in practice. We’ll then consider a few of the ways that lawyers go astray in modern eDiscovery before turning to five actionable steps you can take to keep up with rapidly evolving technology.

The Duty of Technological Competence

The American Bar Association (ABA) Model Rules of Professional Conduct start by establishing a baseline for legal services. Rule 1.1 states that “A lawyer shall provide competent representation” by bringing to bear “the legal knowledge, skill, thoroughness, and preparation reasonably necessary” to zealously represent that client.

Competence has never been static; no lawyer expects to coast through their career on the knowledge they accumulated in law school. Legal frameworks constantly evolve, morphing and shifting each time a statute or regulation is amended or each time a precedential court releases an opinion. Those changes reflect broader shifts in our society and the world itself.

Lawyers are adept at adapting to these changes. They continuously update their legal competence by reading case law updates, monitoring legislative changes, researching new fact patterns, participating in continuing legal education, and following trusted sources.

But the law isn’t the only thing that’s changing in our hyper-speed world. That’s why Comment 8 to Rule 1.1 advises lawyers that as they “keep abreast of changes in the law and its practice,” they should also stay up to date on “the benefits and risks associated with relevant technology.”

Of course, the ABA’s Model Rules aren’t binding—but 40 states have adopted the requirement of technology competence into their ethical rules, which govern lawyers who practice in those jurisdictions.

What does it mean to be technologically competent? In the context of eDiscovery, the California model spells out nine component skills. On taking a new case, counsel should be willing and able to do the following tasks:

1. Initially assess the case’s eDiscovery needs and identify any issues
2. Implement appropriate preservation procedures for ESI or ensure that another has implemented those procedures
3. Analyze and understand the client’s ESI systems and storage
4. Advise the client on available options for collecting and preserving ESI
5. Identify and interview custodians of potentially relevant ESI
6. Prepare for and engage in competent and meaningful conferences with opposing counsel concerning eDiscovery
7. Perform searches for relevant data
8. Collect responsive ESI in a manner that preserves its integrity, including its metadata
9. Produce responsive nonprivileged ESI in a recognized and appropriate manner

That all seems straightforward enough. So, why has technological competence tripped up so many lawyers, especially in the realm of eDiscovery?

Technology Has Changed, But the Fundamentals of eDiscovery Haven’t

It would be easy to assume that it’s the vast complexity of modern technology that makes eDiscovery so difficult. New data sources and file formats emerge every day. Shadow IT lurks in every organization. Ephemeral data crops up—and then disappears without a trace.

Some eDiscovery shortcomings arise from a failure to recognize or understand sophisticated new technology, of course. But more often it’s the fundamentals of eDiscovery, not the advanced technical details, that land lawyers in hot water.

For example, according to a 2019 survey of over 250 federal district court and magistrate judges, lawyers frequently fail to prepare for Rule 26(f) conferences. Rather than proactively studying their ESI or mapping out the necessary scope of eDiscovery, they “act first and confer later,” which often means they waste time collecting the wrong ESI.

Few have said it better than U.S. District Judge Iain D. Johnston in DR Distribs., LLC v. 21 Century Smoking, Inc., 513 F. Supp. 3d 839 (N.D. Ill. 2021), where the “fundamental” yet “cataclysmic” failures of former defense counsel contributed to the spoliation of volumes of evidence. In that case, counsel failed to conduct custodian interviews, failed to implement any legal holds or ensure that their client had implemented such holds, and failed to collect ESI by relying entirely on their client to do so.

But, as egregious as these failures were, Judge Johnston was quick to point out that:

The issues in this case are issues that vex federal trial court judges nationally. Attorneys’ failures to understand their client’s data and eDiscovery practices, search for data appropriately or diligently, search the data itself appropriately or diligently, deliver complete productions, act timely or act at all, comply with court orders, and understand eDiscovery itself or turn to someone who does for assistance are all failures that federal trial court judges identify as requiring corrective action.

Even then, these complaints weren’t new. In 2010, Donald Lundberg wrote, “It is no longer amateur hour. It is way too late in the day for lawyers to expect to catch a break on eDiscovery compliance because it is technically complex and resource-demanding.”

The take-home message is that attorneys need both. They must remember to leverage their fundamental skills in every case, even when the technical details threaten to become overwhelming. And they must incorporate technological updates into the systems they already use to keep up with changes in the law.

5 Tips for Keeping Abreast of Changes in Technology

Boost your technology competence by mastering these five practices.

1. Commit to ongoing education about technology. Attend conferences or CLEs on the latest legal technology. Don’t fall prey to defeatist thinking like “lawyers just aren’t good with technology.” You learned the law. You can learn enough about the fundamentals of eDiscovery technology to meet your duty of technology competence.
2. Admit what you don’t know. Technology changes even faster than the law. As you interview custodians and explore data sources, you should expect to encounter unfamiliar data types. The question is, what will you do when you realize you’re out of your depth?
3. Work with experts who can shore up your weaknesses. There’s more to outsourcing than just knowing who to call. You need to proactively collaborate with IT experts and eDiscovery vendors so you know who’s doing what and what it all means—and so you can add to your mental map and be better prepared for the next time you encounter a novel situation.
4. Keep up with industry press for new case references and examples. You need to keep up with legal technology the same way you monitor changes to case law and regulations. Regularly read reputable legal technology blogs, journals, and news sites to stay informed about recent technological advancements, challenges, and best practices. Fresh case studies and examples can guide your approach to new and complex eDiscovery scenarios.
5. Check out new legal and consumer tech. Exploring new technologies as a consumer can significantly enhance your eDiscovery capabilities. Don’t overlook everyday technologies that you may be able to adapt for legal purposes. For instance, the more you understand emerging social media platforms and communication tools, the better you’ll be able to anticipate issues and manage ESI from those sources. Additionally, experimenting with new software and applications can give you insights into potential uses and limitations, allowing you to stay ahead of the curve and anticipate the next big shift in eDiscovery technology.

Don’t Let a Lack of Technology Competence Hinder Your eDiscovery

As a lawyer, you’ve conquered countless high-level skills, from analyzing fact patterns and looking for weaknesses in an argument to evaluating data sources and integrating a range of authorities into a single unified framework—and when you smell change on the wind, you can turn on a dime and update that framework to reflect the next new regulation or court ruling.

Now all you need to do is apply those capabilities to the task of staying abreast of changes in technology.

When you commit to maintaining technological competence, you’ll find it easier to keep your bearings in this rapidly shifting world—and you’ll be able to consistently leverage the fundamentals that make you an excellent lawyer.

Start learning more about eDiscovery today with our practice guide, The Evolving Duty of Technology Competence.

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