Reprinted with permission from the Defense Research Institute (DRI). All rights reserved.

I. Introduction

Responding to a simple request for production today can conceivably require an attorney to be part IT professional and part bloodhound. It has become almost impossible to respond to a discovery request without at least some command of the electronic data held by even the least technologically sophisticated clients. At the very least, as one court stated, attorneys are "increasingly behooved" to become familiar with the discovery of a client's electronically stored information. Jones v. Goord, No. 95 Civ. 8026, 2002 U.S. Dist. LEXIS 8707, at *17 (S.D.N.Y. May 16, 2002) ("As electronic mechanisms for storing and retrieving data have become more common, it has increasingly behooved courts and counsel to become familiar with such methods, and to develop expertise and procedures for incorporating 'electronic discovery' into the familiar rituals of litigation."). The ethical obligations associated with electronic discovery have clearly gone beyond simply being "behooved" to learn more about electronic discovery, but the extent of these obligations is not yet fully defined. At a minimum, the requirement to represent clients competently today means lawyers must address technology as a routine part of litigation. Thus, electronic discovery presents new challenges and raises new questions in connection with the ethical standards applied to the practice of law.

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