Philip Favro

The nature of a lawyer’s duty of competence has been the subject of debate ever since the ABA revised its definition of competence almost four years ago to require lawyers to understand “the benefits and risks associated with relevant technology.” Since that time, much ink has been spilled advocating the importance of technological competence for lawyers, particularly in the area of eDiscovery.

A high-profile trial involving technology titans Oracle and Google taking place in San Francisco this month spotlights the strategic importance of privilege reviews for litigation attorneys. As detailed in a recent article published by Big Law Business, arguably the most important piece of evidence in Oracle America v. Google is an internal company email that Google originally claimed as privileged.

One of the most critical issues that attorneys must address in litigation is the need to protect their work product. Despite the importance of this issue, some lawyers have forgotten the basic elements of the work product doctrine. They might remember Hickman v. Taylor[1] from law school, together with Justice Jackson’s famous injunction against preparing a case “on wits borrowed from the adversary.” Probe more deeply into nuanced issues such as the discovery of fact or opinion work product, however, and the answers may not come so readily.

Those with an interest in civil discovery have been closely following the development of case law interpreting the recently enacted amendments to the Federal Rules of Civil Procedure. This attention is understandable given the apparent impact the rules amendments are having in discovery practice. From the focus on proportional discovery under FRCP 26(b)(1) to the modified sanctions framework created by FRCP 37(e), the amendments are causing counsel and clients to rethink existing litigation readiness practices so they are better prepared to discharge their discovery duties.