What Does it Mean to Be Technologically Competent in E-Discovery? Observations from a Decade of Trekking in the Search & Document Review Wilderness

Against the backdrop of the past decade's exploding universe of electronically stored information, lawyers practicing in state and federal courts have come to be more aware of the need to confront nontraditional means of searching for relevant evidence in electronic or digital form. In 2013, the American Bar Association added a requirement in a comment to Model Rule 1.1 of the Rules of Professional Conduct, that attorneys keep abreast of changes in the law and its practice "including the benefits and risks associated with relevant technology." Is the model rule as amended applicable to the area of search in e-discovery, and, if so, how narrowly or broadly should it be interpreted for practitioners in a variety of cases ranging from the run of the mill to the complex? In particular, how should this new language in the comment to the ABA Model rule be interpreted when it comes to one of the most rapidly changing areas of e-discovery practice, namely, the use of predictive coding (also referred to as technology-assisted review)?



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