On November 1, 2011, the Judicial Improvements Committee of the Southern District of New York ("JIC") – chaired by prominent e-discovery judicial thought-leader US District Court Judge Shira Scheindlin – implemented a new Pilot Program that expressly imposes, among other things, a duty of competence in complex cases involving issues of electronic discovery.
This order, which can be found here, is anticipated to be in place for 18 months. Section 2 of the Submission requires counsel to certify e-discovery competence:
(2) Competence. Counsel certify that they are sufficiently knowledgeable in matters relating to their clients’ technological systems to discuss competently issues relating to electronic discovery, or have involved someone competent to address these issues on their behalf.
This codifies an expectation of knowledge that will encourage attorneys to be proactive in educating themselves on the rules governing e-discovery and how to address these technological challenges. In a podcast conducted by ESIBytes, Maura Grossman, Counsel at Wachtell, Lipton, Rosen & Katz and a member of the SDNY’s Judicial Improvements Committee, provided this commentary:
"Counsel is expected to be sufficiently knowledgeable to be able to have a meaningful discussion about the items that are on this form. So, by the time of the 26(f) conference, they should have a basic understanding of their client's IT infrastructure, what steps have been taken to preserve potentially relevant ESI, at least some thoughts about how to identify potentially relevant ESI, for example the applicable sources, the custodians, data ranges and so forth, what is or isn't reasonably accessible, and what form they want to produce or receive the ESI in."
In addition to the 31-member Judicial Improvements Committee who helped implement this Pilot Program, other influential members of the judiciary not directly involved in this pilot, including US Magistrate Judge Frank Maas (SDNY), have similarly affirmed a duty of competence in e-discovery. Judge Maas, speaking at Legal Tech NY on February 1, 2012, highlighted the importance of competence and the regularity by which litigators are negligent in their duties: "I do get all the time very distinguished looking lawyers in my courtroom who say 'Your Honor, I just don't get this e-discovery stuff.' And basically, in the age where all data is electronic, I ask them to tell me if they have the competency to represent their client… It happens at least once a month in some way. And so I do think [a duty of competence] is kind of established."
Judge Scheindlin sums up the hoped-for impact of the Submission: “The hope is to inspire courts around the country.”
The author thanks Cardozo Law School student Andrew Cohen for his contributions to this blog post.
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