What The ABA's Competency Rules Mean For eDiscovery

15 June 2022 by Anith eDiscovery competency ABA

Takeaway: The American Bar Association’s Modern Rules of Professional Conduct specify that attorneys must represent their clients competently. And with the rise of eDiscovery, this means knowing the potential and limits of any software you’re evaluating. Luckily, the best eDiscovery applications are easy to use, with software designers handling all the complicated technology behind the scenes. And this makes it much easier for you to keep up with even the most rapidly evolving technology.

The American Bar Association emphasizes how important it is for attorneys to represent their clients competently.

The ABA’s Modern Rules of Professional Conduct (Rule 1.1 in particular) emphasize that attorneys must represent their clients competently. Specifically, they need to have the ‘legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.’

Traditionally, this rule has been easy to interpret. Attorneys just needed the right legal experience and training.

In the past, Rule 1.1 meant ‘having the requisite knowledge and skill in a particular matter.’ And this depended on how complex/specialized the matter was, the attorney’s general/specialized experience, and how much time they had to study/prepare for a particular matter. Note that these ‘must haves’ are all connected to legal skills. For example, an attorney would signal competence by spotting a situation’s proper legal perspective, analyzing precedence, evaluating evidence and legal drafts, etc.

eDiscovery changes this, though, because it involves technology – something that redefines what preparedness means.

Rule 1.1 emphasizes how important it is for attorneys to know how to use the best methods and tools to represent their clients properly. And with the rise of eDiscovery, this means understanding the basics of all the technology involved – especially with major litigation and complex transactions. Clients universally expect this type of technological competence.

For example, here are 6 things that go into making a competent eDiscovery review.

These instances explore how eDiscovery forces us to re-envision the ABA’s Rule 1.1.

1. You’ll need to collect files systematically.

Clients usually have gigabytes of data spread across multiple cloud services, making it easy to overlook vital files when collecting all this data. The solution is to develop a systematic process to locate and collect these files – especially when clients don’t send them in on time. Here’s where eDiscovery collection services can help because they let clients authorize you to download files directly from their cloud services. So, you’ll be able to simultaneously download data from a range of cloud platforms like Microsoft Outlook, Gmail, Yahoo!, Dropbox, Google Drive, and OneDrive. Learn more about collecting eDiscovery files remotely.

2. You’ll need to store the collected files somewhere secure.

eDiscovery services used to offer only on-premises storage solutions. And this meant buying new hardware and software to power these setups. Nowadays, though, the best services store your data in the Cloud (a global network of advanced computer servers), which means you outsource all the technical aspects of data storage. Other people handle the hardware and software while you access your storage simply by logging in via your eDiscovery browser. Best of all, cloud storage is virtually limitless, so it’s easy to get more storage space for rapidly-growing cases. And since the servers are shared by businesses worldwide, the pricing is surprisingly cost-effective.

3. You’ll need to preserve vital file metadata.

Metadata is contextual information about a file, like who created it, when they created it, when it was last opened, etc. It’s a digital footprint tracking a document’s history, so it’s critical to preserve it. But metadata is extremely easy to destroy (e.g., you can change the ‘last viewed’ metadata entry just by opening a file the wrong way), so you’ll need eDiscovery software that can protect all your case metadata. Learn more about protecting metadata.

4. You’ll need to invest in software with reliable data protection.

Cloud storage comes with multiple built-in security fail-safes. But your eDiscovery software will need separate security measures, too. For instance, many applications come with multi-factor authentication (MFA), meaning that you’ll need more than one piece of verification information when logging in. Typically, this means entering a password and an authentication code (sent via SMS or an ‘authenticator’ app like Google Authenticator). (Learn how eDiscovery applications set up MFA.) Similarly, the best eDiscovery applications come with multiple user permissions, allowing you to restrict data access depending on a user’s clearance levels. For instance, Level 1 users might only be able to search and review data, while Level 4 users can also upload/modify/delete data.

5. You’ll need the right eDiscovery review tools.

Most cases involve thousands of files, so you’ll need the right tools to review them competently. This includes having automatic OCR (to convert scanned documents into machine-readable text), a powerful search engine (to pull up hard-to-find files and keywords), a tagging tool to categorize files, a redaction tool to withhold sensitive information, and a production tool to prepare your files for court.

6. You’ll need to be careful about outsourcing eDiscovery reviews.

The ABA’s competence requirements apply to anyone who works on your case – including outside counsel. That’s why ‘managed document reviews’ can be tricky. (This is where you hire a group of add-on attorneys to review eDiscovery documents, freeing up your in-house team to work on tasks with a higher rate of return.) You’ll want to ensure your add-on review team is qualified and experienced enough to pass your competency standards while staying cost-effective. And choosing the right eDiscovery software helps here because the best ones connect you with reliable review teams that have years of specialized experience. Learn more about managed reviews.

But staying up to date with the latest technology doesn’t have to be complicated if you choose the right eDiscovery software.

An extension of Rule 1.1 is that attorneys need to ‘keep abreast of changes in law and its practice, including the benefits and risks associated with relevant technology.’ And here’s the main reason why the software you choose matters. The better eDiscovery applications are intuitive and easy to use, with back-end teams handling all technical issues. This intuitiveness means that future software versions might get more technical behind the scenes but will keep the same simple user experience. So, you can become competent at using this type of software just by trying out its various features. You won’t need to read a complicated manual or watch dozens of ‘how-to’ videos. Learn more about simple eDiscovery.

Next-generation eDiscovery applications have other things going for them, too.

The best eDiscovery services aren’t just about keeping you tech-competent. Take GoldFynch, for example. We designed it specifically for small and midsize firms, giving it the following key features.

It costs just $27 a month for a 3 GB case: That’s significantly less than most comparable software. With GoldFynch, you know what you’re paying for exactly – its pricing is simple and readily available on the website.
It’s easy to budget for. GoldFynch charges only for storage (processing files is free). So, choose from a range of plans (3 GB to 150+ GB) and know up-front how much you’ll be paying. You can upload and cull as much data as you want, as long as you stay below your storage limit. And even if you do cross the limit, you can upgrade your plan with just a few clicks. Also, billing is prorated – so you’ll pay only for the time you spend on any given plan. With legacy software, pricing is much less predictable.
It takes just minutes to get going. GoldFynch runs in the cloud, so you use it through your web browser (Google Chrome recommended). No installation. No sales calls or emails. Plus, you get a free trial case (0.5 GB of data and a processing cap of 1 GB) without adding a credit card.
It’s simple to use. Many eDiscovery applications take hours to master. GoldFynch takes minutes. It handles a lot of complex processing in the background, but what you see is minimal and intuitive. Just drag-and-drop your files into GoldFynch, and you’re good to go. Plus, you get prompt and reliable tech support.
Access it from anywhere, and 24/7. All your files are backed up and secure in the Cloud.

Want to find out more about GoldFynch?

Try GoldFynch for Free Schedule a Demo