2. ESI BASICS
ESI – Electronically Stored Information
• Email
• Excel Spreadsheets
• Word Documents
• Powerpoint Presentations
• Anything stored in electronic format
• Text Messages
• Instant Messaging
Native Files – documents stored in the format they normally are held in
(ie - .msg, .docx, .png), verses PDF
3. DUTY OF COMPETENCY
UNETHICAL TO TAKE CASES WHEN ATTORNEY/PARALEGAL IS NOT COMPETENT IN
THE MATTER, INCLUDING EDISCOVERY
California State Bar Proposed Formal Opinion Interim NO. 11 -0004
“An attorney’s obligations under the ethical duty of competence evolve as new
technologies develop and then become integrated with the practice of law. Attorney
competence related to litigation generally requires, at a minimum, a basic
understanding of, and facility with, issues relating to e-discovery, i.e., the discovery
of electronically stored information (“ESI”). 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 given matter and the nature of the
ESI involved. Such competency requirements may render an otherwise highly
experienced attorney not competent to handle certain litigation matters involving
ESI.
4. DUTY OF COMPETENCY
KNOW WHEN TO CALL AN ESI VENDOR FOR CONSULTATION
An attorney lacking the required competence for the e-discovery issues in the case at issue
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 can also
result, in certain circumstances, in ethical violations of an attorney’s duty of
confidentiality, the duty of candor, and/or the ethical duty not to suppress evidence.”
6. SOCIAL MEDIA IN DISCOVERY
Litigation Hold & Preservation
• Duty to address social media within litigation hold
• Identify all social accounts with client for preservation
• Identify all “handles”
• Identify all email addresses associated with accounts
• Does the company utilize instant messaging services for interoffice communication?
• Begin collection
7. SOCIAL MEDIA IN DISCOVERY
Preservation
Painter v. Atwood, D.D.S., No. 12-1215, 2014 WL 1089694, at *8 (D.
Nev. Mar. 18, 2014)
• sanctions imposed on the plaintiff where she intentionally deleted certain Facebook posts relevant to
her allegations of sexual harassment and employment conditions after retaining counsel and filing
litigation
Hawkins, 2073 WL 6050324, at *2
• sanctions imposed on the plaintiff who deleted private Facebook messages and other Facebook
content after filing suit where his mental state was relevant to his discrimination case)
Katiroll Co. v. Kati Roll & Platters, Inc., No. 10-3620, 2017 WL
3583408, at *4 (D.N.J. Aug. 3, 2011)
• sanctions imposed on the defendant for changing his Facebook profile photograph where his previous
photograph reflected allegedly infringing trade dress
9. SOCIAL MEDIA IN DISCOVERY
*Metadata not intact for keepvid for created date
10. SOCIAL MEDIA IN DISCOVERY
Investigation
• May only access public portions of parties’ social media pages
• If friend request, must indicate nature of investigation and
representation
• Searching on LinkedIn, must move profile view to anonymous
• Twitter – cannot be logged into account, only public view of profiles
Rule 41 for the Model Rules of Professional Conduct – false statement
or failing to disclose a material fact to third person
12. CHAIN OF CUSTODY
UNETHICAL NOT TO PROPERLY TRACK CHAIN OF CUSTODY FOR ESI
United States v. O’Keefe, 2008 WL 449729 (DC February 18, 2008)
• “A piece of electronically stored information, without any indication of its creator,
source, or custodian may not be authenticated under Federal Rule of Evidence 901.”
Tracking through Document Management Programs: Relativity, Concordance,
Summation, etc.
Tracking old school way – excel spreadsheet, utilize freeware such as “FolderPrint Plus”
to map network drive, apply bates stamping to natives with “Bulk Rename Utility”
14. TECHNOLOGY HARDWARE ETHICS
• NO MORE FREE, UNPROTECTED WIFI!!
• Do not share your home wifi with others (neighbors,
etc.) if you plan to do work at home
• Log out of your computer each night and out of all
your programs.
• Lock cellphones and tablets with security code if work
product is accessible
• Security Breach Procedure for Firm – integrate into fee
agreement
15. RESOURCES
Women in eDiscovery is an organization that
primarily provides educational opportunities
regarding technology in the legal industry to
its members.
Next Meeting:
Wednesday, June 10th at 12:00 pm
Sheppard Mullin – Downtown Office
501 W. Broadway, Suite 1900
San Diego, CA 92101
16. RESOURCES
San Diego ESI Forum is a group
dedicated to educating the bar
about electronic discovery issues
for both civil and criminal
attorneys working under state and
federal laws.
Next Meeting:
“Trends in Technology”
Thursday, June 18th at 12:00 pm
U.S. District Court, Southern
District
333 West Broadway, Jury Annex
San Diego, CA 92101
17. RESOURCES
The Sedona Conference® (TSC) is a
nonprofit, 501(c)(3) research and
educational institute dedicated to the
advanced study of law and policy in the
areas of antitrust law, complex litigation,
and intellectual property rights.
Access their journal & opinions online at
https://thesedonaconference.org/
18. RESOURCES
SDPA MCLE on ESI
Wednesday, June 17th
6:30 – 7:30 p.m.
Register on our website at
www.sdparalegals.org
Members: Free│Non-Members: $10
