Competence Is Not a Delegable Duty

The phrase “discovery of electronically stored information (“ESI”)” is intimidating for most of us.  But we can’t avoid it. “Not every litigated case ultimately involves e-discovery; however, in today’s technological world, almost every litigation matter potentially does.” [1] When faced with a request for production of documents seeking ESI, it may be tempting to delegate the duty of obtaining and producing ESI to an outside consultant, such as a computer forensic “expert.”  A case out of the North Carolina Business Court provides a warning against such an approach.[2]

Before the court was defendants’ motion for an order compelling the return of privileged documents. In response to plaintiffs’ request for production of documents, defendants hired an outside consultant to obtain, process and search defendants’ emails for responsive documents. The record indicated the computer expert had never provided any forensic computer services in the context of a lawsuit.

After acquiring the data, the computer expert prepared a document set using the search terms provided by plaintiffs. The document set was put on a hard drive and produced to plaintiffs. The record indicated defendants did not review the document set for privileged documents except for a limited effort to segregate communications with defense counsel.

Defendants argued any disclosure of attorney-client privileged information was inadvertent, and plaintiffs had an obligation to return the documents. Plaintiffs argued any disclosure of attorney-client privileged information should be considered intentional rather than inadvertent because the defendants had purposely made a “document dump.” Alternatively, plaintiffs argued even if the disclosure was inadvertent, the privilege had been waived.

The court passed on the “intentional” vs. “inadvertent” question because it believed there had been a privilege waiver whether the production was intentional or inadvertent. The court found a waiver of attorney-client privilege because it could not conclude defendants had taken reasonable efforts to protect against a waiver in advance of the production of documents.  The record indicated defendants had produced the hard drives prepared by their outside consultant with no review or sampling or other quality assurance effort to assess whether the consultant’s efforts had succeeded in eliminating privileged communications. Defendants admitted they had relied exclusively on their outside consultant to filter out documents potentially subject to the attorney-client privilege. Rejecting such blind reliance, the court said it did not believe counsel could altogether delegate the need to guard against production of privileged information to an outside consultant.

N.C. Rules of Prof’l Conduct Rule 1.1: COMPETENCE states: “Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” While the digital world may be foreign to many lawyers, our duties of competence and diligence require that we not blindly delegate the seemingly mysterious world of discovery of ESI to others.