At some point, perhaps soon, it may be malpractice if litigators do not ask for and obtain digital data from opposing counsel. An article by Patrick F. Dorrian, Jurists Offer Perspective, TIps on Electronic Discovery in the November 2003 issue of Metropolitan Corporate Counsel examines this and other questions about electronic discovery.

Dorrian reports on a recent conference where Judge Loretta Preska spoke. She wrote the opinion in an influential case on discovery (Metropolitan Opera Ass’n v. Local 100, Hotel Employees and Rest. Employees Int’l Union, 212 F.R.D. 178 (SDNY 2003)). Dorrian writes:

“Responding to a question, Judge Preska explained that it is ‘hard to say’ whether an attorney’s failure to seek electronic discovery in a case could support a finding of legal malpractice. ‘The rules talk about the production of relevant information,” she said, “so we seem to create the burden to seek e-data.” While noting that the increased costs associated with electronic discovery ‘have changed the game,’ she added that she ‘can’t imagine how counsel who is responsible cannot seek relevant electronic information.'”

Twenty years ago, not all lawyers performed online legal research. Today, many lawyers and judges would consider that omission malpractice. If history and common sense is a guide, a similar rule is likely to apply to electronic evidence discovery.