Technical Competence, the eDiscovery Edition

As lawyers, we are expected to be technically competent – something I’ll call “general technical competence”. For those of us handling eDiscovery at any stage of an investigation or dispute, the expectation is heightened; this is the arena of “eDiscovery technical competence”.

But what does “technical competence” mean? What does it mean when eDiscovery is added to the mix? And how do we get there?

The Expectation of Technical Competence

Bar Associations

Most US bar associations expect lawyers to be technically competent. They do not differentiate, as I have above, between general technical competence and eDiscovery technical competence.

Model Rule 1.1 of the ABA Model Rules of Professional Conduct states that “[a] lawyer shall provide competent representation to a client.” In 2012, in Comment 8 to Rule 1.1, the American Bar Association formally expanded the rule to include technical competence, adding the highlighted language:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject. (Emphasis added.)

Comment 8 came from ABA Commission on Ethics 20/20. The Commission was created in 2009 by the ABA president. The Commission reviewed the Model Rules and the US system of lawyer regulation in the context of advances in technology and global legal practice developments. Following its review, it proposed a series of recommendations. These were adopted by the ABA House of Delegates.

Bar associations in 40 states have adopted Comment 8 in some form. (For an interactive map and list, go to the Tech Competence page that Bob Ambrogi maintains.) Ten states have yet to adopt any form of the comment. Those states are Alabama, Georgia, Maine, Maryland, Mississippi, Nevada, New Jersey, Oregon, Rhode Island, and South Dakota.

Three jurisdictions have taken another step and require that lawyers get continuing legal education in technology. Florida lawyers must earn three hours of technology CLE over three years. In North Carolina, lawyers must complete one hour of technology training each year. Lawyers in the Virgin Islands need to earn at least two technology CLE credits (50 minutes each) every two years.

Courts

Federal and state courts in the United States and their counterparts in many other countries typically expect general technical competence from lawyers. They expect lawyers (or those working on their behalf) to communication effectively with clients via electronic systems such as email; prepare documents such as pleadings and contracts in electronic form as opposed to, for example, only on paper; file materials with the courts electronically; appear in court electronically via Zoom and other platforms; and so on.

Those courts often also expect lawyers to have at least a basic level of eDiscovery technical competence. Courts and court systems convey these expectations in various ways. At an individual level, a court might enter an order requiring that opposing lawyers agree upon a protocol to use as they or those working on their behalf find, preserve, work with, and produce ESI.

At a systemic level, mechanisms such as rules set forth judicial expectations or requirements. The Federal Rules of Civil Procedure (FRCP) provide a good example. Two sets of major revisions were made to these rules, the first set in 2006 and the second in 2015, specifically to address eDiscovery. Before the 2006 update, there was debate as to whether the Rules even allowed for the discovery of data. The 2006 amendments tackled the discovery of “electronically stored information” head on, with revisions and additions to Rules 16, 26, 33, 34, 37, and 45, as well as Form 35. The 2015 amendments picked up where the earlier ones left off, focusing early case management, proportionality, and preservation. There revisions should make at least one thing clear: lawyers need to know how to deal with ESI.

Clients

Clients run the gamut, as do their expectations. At one end of the spectrum, for many clients the technological competence of their lawyers probably is not a topic they have ever contemplated. A client might be interacting with the legal system for the first time, or the client might have a matter where very little evidence is needed. Here, expectations of technical competence, general or eDiscovery, may be low.

At the other end of the spectrum are clients that know the legal system only too well, such as companies in industries where lawsuits are all too often an inherent part of what those companies must deal with. Large pharmaceutical companies, major financial institutions, and similar organizations routinely expect a high degree of general and eDiscovery technical competence from their lawyers.

What Constitutes General Technical Competence?

There is no one-size-fits-all answer to the question of what constitutes adequate general technical competence. What is clear is that lawyers are expected to be able to complete their routine tasks – which vary from one lawyer to the next – through the effective use of technologies commonly deployed by their colleagues undertaking the same or similar tasks.

Writing in 2014 about the lawyer’s ethical duty of competence, Andrew Perlman, the Chief Reporter of the ABA Commission on Ethics 20/20, noted that:

The advice to keep abreast of relevant technology is vague, and the Commission intended for it to be so. The Commission understood that a competent lawyer’s skillset needs to evolve along with technology itself. After all, given the pace of change in the last twenty years, the specific skills lawyers will need in the decades ahead are difficult to imagine.

A quotation from the Commission cited in ABA Formal Ethics Opinion 483, Lawyers' Obligations After an Electronic Data Breach or Cyberattack (October 2018) provides a little more clarity, focusing on the need to understand basic features of relevant technology:

The Commission concluded that, in order to keep abreast of changes in law practice in a digital age, lawyers necessarily need to understand basic features of relevant technology and that this aspect of competence should be expressed in the Comment. For example, a lawyer would have difficulty providing competent legal services in today’s environment without knowing how to use email or create an electronic document.

More recently, in The Fate of Comment 8: Analyzing a Lawyer's Ethical Obligation of Technological Competence, published by the University of Cincinnati Law Review in 2022, Lisa Rosenof remarked that “The ABA’s standard in Comment 8 provides no boundaries or roadmap to follow in determining whether a lawyer has breached this ethical duty of technological competence.” The author offered some useful definitions:

• Competence generally: “Competent representation requires the ‘legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.’”
• Technological competence: “Competence is ‘the mental ability to understand problems and make decisions.’ Moreover, technology is ‘modern equipment, machines, and methods based on contemporary knowledge of science and computers.’ When taken in conjunction, technological competence can be defined as ‘the mental ability to understand problems and make decisions in regard to modern equipment, machines, and methods based on contemporary knowledge of science and computers.’”
• Relevant technology: Defined via examples of areas where courts have imposed a duty of technological competence – electronic filing, case management systems, online legal research, eDiscovery, social media, and metadata.

In an earlier 2014 article, Technology and Ethics, divorce attorney Lee Marlow listed some of the “relevant technology” used by lawyers:

• Law practice tools including practice management software and digital dictation software
• Legal and factual research tools such as Westlaw, Lexis, and Google
• Communications tools like email, text messaging, and social media
• Discovery tools for preservation of digital evidence and access to electronically stored information
• Video technology for depositions, conferences, and investigations
• Courtroom technology such as trial presentation software and evidence display technology

What Constitutes eDiscovery Technical Competence?

Here, too, there is not a one-size-fits all answer. Reasonable expectations vary greatly, depending on the client, matter, and a host of other considerations.

At a minimum, lawyers should understand the applicable rules. A lawyer handling civil matters in Federal court should know the basics of what the FRCP requires when it comes to eDiscovery. That lawyer should understand the basics of the eDiscovery process or be able to reasonably rely on guidance from someone who does. If concepts such as preservation, review, and production of ESI are foreign and help is not available, the lawyer should and may be required to relinquish the matter.

How Does a Lawyer Become – or Stay – Technically Competent?

Fortunately, resources to help lawyers improve their eDiscovery technical competence abound.

Often help is just a literal or figurative door away. Another lawyer in your firm may have the expertise you lack. Your firm might have an eDiscovery practice or litigation support department ready and waiting to assist you.

If you already use an eDiscovery provider, folks at that organization can help. eDiscovery providers offer a wide range of educational resources from CLEs to individualized training to side-by-side, on-the-job assistance. If you don’t currently use an eDiscovery provider or are contemplating a change, there is a whole world of providers eager to demonstrate why you should use them.

Bar associations and other CLE providers can be your friends. In-person and on-line CLE offerings abound. Many of these are just an hour long and can serve as a good introduction to a topic. Some offerings are part of larger event such as Legalweek, ILTACON, or the University of Florida Levin College of Law Annual E-Discovery Conference. – events with multiple days of sessions drawing thousands of attendees.

Vender-neutral certifications are available. ACEDS – the Association of Certified E-Discovery Specialists – offers its flagship CEDS Certification, a new CEDS Canada certification, and ACEDS Team Training.

How Reveal Helps

We at Reveal can help as well. Reveal offers training and certifications through Reveal Academy.

Reveal offers a number of online certification courses for each of the major functions of both Reveal and Brainspace. Get certified on the most advanced AI powered end-to-end eDiscovery solutions in the industry. These offerings include:

• Reviewer Certification Bundle. Reveal has launched a new way to get certified beginning with the Reviewer Certification Bundle. This bundle includes a set of courses designed to get you trained on how to review documents in Reveal. Once you complete all the courses in the bundle, you're automatically eligible to take the Reviewer Certification Exam to earn your professional certification.
• Reveal Processing Certification. The Reveal Processing Certification course teaches you the fundamentals of data processing in Reveal from project setup to data export. You will learn how to create new projects and design project templates. In addition, you’ll get trained on how to setup custodians, process data, and manage processing exceptions. You’ll also learn how to build a dtSearch index to cull data using keyword searches and metadata filters. The course will conclude with a demonstration of how to generate processing reports and perform data exports.
• AI Modeling Framework Certification. The AI Modeling Framework Certification course teaches you Reveal's standard approach for building reusable AI models for your Model Library. In this course, you'll learn the standard methodology used by Reveal's industry leading data science team to create reusable AI models.
• Brainspace Analyst Certification. This online Brainspace certification teaches you how to use all of the major features of Brainspace as well as training you on the standard use cases and their associated workflows. All users should obtain this certification as it provides the foundational knowledge needed to harness the power of Brainspace.
• Brainspace Specialist Certification. This online Brainspace certification course teaches you how to manage Datasets, Connectors, user permissions and perform basic troubleshooting of the Brainspace environment. Users that typically manage the process of loading data into Brainspace are encouraged to obtain this certification.
• Brainspace AI Model Building Certification. The Brainspace AI Model Building Certification course teaches you how to build custom AI models within Brainspace. You'll learn how to carefully select training data using a combination of features including Brainspace's transparent Concept Search and interactive data visualizations.
• Brainspace Sales Certification. This online Brainspace certification course teaches you how to explain the value proposition of Brainspace to a prospect, customer, or decision maker. This course provides an overview of the current market challenges and how Brainspace solves those challenges along with a review of our standard use cases and key features.

We also now offer a series of free non-certification courses that train you on specific feature sets and product use cases. These courses are approximately 20 to 30 minutes long and include knowledge checks to reinforce what you’ve learned. These courses include:

• Getting Started. This course trains you on the fundamentals of the entire Reveal 11 solution including environment setup/configuration, processing, review, analytics, and document productions. Learn how it all fits together in this chronological overview of Reveal 11.
• Environment Setup Basics. Learn the basics of setting up your new Reveal Instance. Get trained on how to setup your Reveal SaaS environment from creating your first company to setting up your first project. This course is applicable for both Reveal 10 and Reveal 11.
• Environment Access. This course will train you on how to access your Reveal Cloud environment which includes your Reveal Processing instance. In addition, you'll learn how to install S3 and set up your S3 Buckets for data staging.
• User Permissions. This course will train you on how to setup user permissions including Roles, Role Groups, and Teams. Learn how to control what actions users can take and what users can see within Reveal.
• Tag Management. This course will train you on how to create and configure tags in Reveal. In addition, you will learn how to build tagging rules to control user coding behavior.
• Basic Processing. This course trains you on the fundamentals of Reveal processing which include how to create and run a processing job, how to monitor processing jobs for errors, how to resolve file level exceptions, OCR, and how to generate processing reports.
• Basic Review. This course teaches you the basics of document review in Reveal. Learn about the primary review screens, how to check in/out batches, how to code documents, and apply redactions and annotations.
• Search & Filter. Learn about the various keyword search and metadata filter options available within Reveal. This course will teach you how to create both simple and complex keyword searches. You also learn how to create metadata filters for your projects.

Want to Build Your eDiscovery Technical Competence?

If you want to build your eDiscovery Technical Competence – or learn more about Reveal and its offerings, contact us.