Welcome to Module 1-N.

Ken Withers on Discovery and Cooperation, the Sedona Cooperation Proclamation, and the California Bar Ethics Opinion Setting Forth Nine Minimum e-Discovery Skills That All Attorneys Should Know

ken_withers_hatKen Withers is another sage of Sedona who likes to wear cowboy hats. He works full time for The Sedona Conference where he is the Director of Judicial Education and Content. Ken has more experience teaching judges e-discovery than anyone else in the world.

In this video Ken tells students how to properly present discovery issues to a judge that cannot be resolved with opposing counsel. He also provides wise advice to law students on how to prepare for the challenges they will face in their career. He advises on how to handle older generations of lawyers who may not understand technology and the new cooperative approach. After this exclusive interview with Ken, we briefly review the The Sedona Conference® Cooperation Proclamation. Finally in this important class we consider California Rule Formal Opinion on Ethics No. 2015-193. The opinion lists nine essential e-discovery skills that all attorneys should have.Videos by Ralph Losey will discuss this opinion and the nine skills.


Cooperation Proclamation

To supplement Ken’s talk, take a look at the full language of The Sedona Conference® Cooperation Proclamation. The cooperative model Sedona promotes follows the new rules and encourages parties to reach agreement and specify plans. Here is the introduction from the Cooperation Proclamation:

The costs associated with adversarial conduct in pre-trial discovery have become a serious burden to the American judicial system. This burden rises significantly in discovery of electronically stored information (“ESI”). In addition to rising monetary costs, courts have seen escalating motion practice, overreaching, obstruction, and extensive, but unproductive discovery disputes – in some cases precluding adjudication on the merits altogether – when parties treat the discovery process in an adversarial manner.

The Sedona Proclamation goes on to explain how cooperative discovery is not only an economic imperative, but also an ethical one, and that Cooperation in discovery is consistent with zealous advocacy.


California Bar Formal Opinion on Ethics No. 2015-193 Setting Forth Nine Minimum e-Discovery Skills

The California Bar issued an important ethics ruling in mid-2016 that all lawyers should know about. The State Bar of California Standing Committee on Professional Responsibility and Conduct Formal Opinion No. 2015-193 (final version August 2016). The key component of the Opinion is the list of nine tasks that an attorney should either be able to do, or, if they cannot, to associate with other legal counsel who does. Below is the language from the Opinion that describes these tasks followed my video explanation of the knowledge required to competently perform them. The video is divided into four parts with some intentional overlap for emphasis.

Just a few years ago this kind of knowledge was considered arcane and was only known by e-discovery specialists. Now the California Bar has taken a bold leap forward to make this knowledge required for all attorneys who litigate in California. The California Bar has thus raised the bar of competence for everyone by making this an ethical imperative in their state. Note, that as footnote seven to the Opinion makes clear, this is not intended to be an exhaustive list. For instance, attorneys must also know how to properly obtain an opposing party’s ESI.

California Formal Opinion on Ethics No. 2015-193 (final version August 2016), at pages 3-4:

Attorneys handling e-discovery should be able to perform (either by themselves or in association with competent co-counsel or expert consultants) the following:

1.Initially assess e-discovery needs and issues, if any;

2.Implement/cause to implement appropriate ESI preservation procedures;

3.Analyze and understand a client’s ESI systems and storage;



4.Advise the client on available options for collection and preservation of ESI;

5.Identify custodians of potentially relevant ESI;


6.Engage in competent and meaningful meet and confer with opposing counsel concerning an e-discovery plan;

7.Perform data searches;


8.Collect responsive ESI in a manner that preserves the integrity of that ESI; and

9.Produce responsive non-privileged ESI in a recognized and appropriate manner. FN7

FN 7 – This opinion focuses on an attorney’s ethical obligations relating to his own client’s ESI and, therefore, this list focuses on those issues. This opinion does not address the scope of an attorney’s duty of competence relating to obtaining an opposing party’s ESI.


SUPPLEMENTAL READING:  Find and study at least two articles by Ken Withers that you have not seen before. You will like them. Write up a summary for your later reference. Study the Sedona Conference® Cooperation Proclamation Also read the full text of the California Bar Formal Opinion on Ethics No. 2015-193. Look for and read a few articles and commentary of this opinion.

EXERCISE. Search the Sedona Conference website and figure out how many judges have now formally endorsed the Cooperation Proclamation. What are the names of the judges in your home state that have adopted the Cooperation Proclamation? Also search to see what articles have been written on the Proclamation from experts inside out outside of The Sedona Conference.

Students are invited to leave a public comment below. Insights that might help other students are especially welcome. Let’s collaborate!

Copyright Ralph Losey 2017

Friend of AI. Tech lawyer by day since 1980 with special skills and experience using legal technology, especially AI. Also an Arbitrator (AAA) and legal tech writer. By night an electronic meditation musician-composer since 1973 using computers and synthesizers.

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