A Trial Lawyer's Approach to Ethical Problems in E-Discovery

I gave this presentation at Kroll Ontrack's 2014 eDiscovery Certification Workshop. I explored the ethical challenges facing lawyers involved in e-discovery. I emphasized how trial lawyers' persuasive skills can turn potential e-discovery pitfalls into victories, allowing them to do what they do best: win cases on the merits.

Published in: Law

A Trial Lawyer's Approach to Ethical Problems in E-Discovery from Brendan Kenny

Transcript

• 1. Ethical Challenges of Ediscovery
• 2. In the beginning
• 3. You can’t win on the substance if you lose on the evidence.
• 4. Discussion Overview  The Rules in Relation to Ediscovery  New Technologies & Issues  Parting Thoughts 5
• 5. The Rules in Relation to Ediscovery
• 6. Ethics & Electronic Evidence  Ethical obligations do exist when it comes to ediscovery  Courts are more clearly articulating counsel’s affirmative duty to act competently and diligently  Counsel should expect to be held to a higher standard than ever before 7
• 7. The Model Rules of Professional Conduct 8 1.1 1.6 3.3 Competence Confidentiality Candor 3.4 4.4 8.4 5.6 Non-Lawyer Assistance Fairness Third Persons Integrity
• 8. Amended Ethics Rules 9  In August 2012, The ABA House of Delegates approved recommendations sponsored by the ABA Commission on Ethics 20/20 » Of special interest to ediscovery practitioners is Recommendation 105A, which amends existing rules as follows:  Rule 1.0 – “Writing” now includes an “electronic communication”  Rule 1.1 – Comment [8] adds an attorney’s duty to stay informed about changes in practice and relevant litigation technology  Rule 1.6 – Adds section (c), identifying duty to prevent inadvertent disclosure of confidential client information  Rule 4.4 – Adds “electronically stored information” to provision about sending prompt notice when lawyer receives third party information
• 9. The Model Rules | Competence 1.1 “ „ 10 “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”
• 10. The Model Rules | Competence “ „ 1.1 11 “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant (Cmt. 8) technology…”
• 11. agilebacon.com
• 12. The Model Rules | Competence  Competence in locating, reviewing and producing ESI in litigation and regulatory work is among the greatest challenges for lawyers today  Counsel’s ability to examine and produce ESI is central to managing discovery in the modern age 14
• 13. The Model Rules | Competence Seek outside counsel or hire a consultant when: » Training and experience of your staff or your client’s staff would make you uncomfortable if you had to call them as witnesses » Conflicts of interest might really hurt your case » The current workload of your staff would prevent them from focusing on your case » Your staff lacks the tools and equipment to handle the job 15
• 14. Case Law | Competence In re A & M Florida Props. II 2010 WL 1418861 (Bkrtcpy. S.D.N.Y. Apr. 2010) HELD: WHY: 18  Court found plaintiffs’ counsel “did not understand the technical depths to which electronic discovery can sometimes go”  Counsel has an obligation to search for sources of information to understand where data is stored  Court issued monetary sanctions due to counsel’s failure to speak with key figures at the company
• 15. The Model Rules | Confidentiality “ 1.6 A lawyer shall make reasonable „ 19 efforts to prevent the inadvertent disclosure of, or unauthorized access to, information relating to the representation of a client. Subd. (c) …what efforts are reasonable to prevent disclosure?
• 16. Evidentiary Rules | Confidentiality  Amidst growing data volumes, protecting privilege in the era of electronic discovery is growing increasingly difficult » FRE 502 limits waivers of attorney-client privilege and work product doctrine » Preventing waiver under FRE 502(b): 20 “Reasonable attempts [made] to prevent disclosure” (502(b)(2)) Take “prompt, reasonable steps to rectify error (502(b)(3)) No Waiver Disclosure is Unintentional
• 17. Case Law | Confidentiality Alamar Ranch, LLC v. County of Boise HELD: WHY: 21  Attorney should have been aware client’s employer would be monitoring and accessing e-mail sent to that address since it is now a common practice  Court found privilege was waived regarding e-mails sent via company e-mail addresses using company computers 2009 WL 3669741 (D. Idaho. Nov. 2, 2009)
• 18. Don’t be an unreliable narrator
• 19. The Model Rules | Candor “ 3.3 A lawyer shall not knowingly: Subd. (a) „ 24 (1) Make a false statement of fact or law… (3) Offer evidence lawyer knows to be false
• 20. Case Law | Candor Baez-Eliza v. Instituto Psicoterapeutico de Puerto Rico HELD: WHY: 25  Defendant’s repeated claims of privilege over 10 emails (because the emails disclosed attorney-client consultation) showed “an ill-advised stubbornness” and “a poor understanding of the privilege’s reach.”  Turned discovery “into an all-out war”  Court ordered defendants to pay $1,000 in sanctions for discovery misconduct 2011 WL 2413051 (D.P.R. June 16, 2011)
• 21. The Model Rules | Fairness “ „ 3.4 26 A lawyer shall not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to Subd. (a) do any such act….
• 22. The Authors of Failure
• 23. The Model Rules | Fairness Scott Adams, Inc./Dict. by UFS, Inc. 29
• 24. Case Law | Fairness Sec. Nat’l Bank of Sioux City v. Abbott Labs. HELD: WHY: 30  The judge began that “something is rotten . . . in discovery in modern federal civil litigation” and that “unless judges impose serious adverse consequences,” obstructionist behavior will persist  The lawyer on the case “proliferated hundreds of unnecessary objections and interruptions during the examiner’s questioning.”  Judge orders sanctions for counsel’s bad deposition conduct 2014 WL 3704277 (N.D. Iowa July 28, 2014)
• 25. The Model Rules | Fairness “ „ 3.4 33 A lawyer shall not, in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent efforts to comply with a legally proper discovery request by an opposing party….” Subd. (d)
• 26. Case Law | Fairness HELD: WHY: 35  The attorneys filed over 14 discovery-related motions and engaged in incessant “accusation-laced, uncivil correspondence”  The attorneys consciously made the litigation as “time-consuming, difficult, unpleasant, and expensive as possible”  Two defense attorneys were held personally liable in the amount of $3,750 each, to be paid without reimbursement from the law firms or clients. Alford v. Rents 2010 WL 4222922 (S.D. Ill. Oct. 20, 2010)
• 27. Case Law | Fairness B & B Hardware, Inc. v. Fastenal Co. HELD: WHY: 36  Plaintiff failed to abide by local rule requiring attorneys to meet and confer in good faith before filing motion to compel  Parties were acting “like armed combatants,” not “highly skilled professionals”  Court declined to compel discovery or grant a hearing 2011 WL 2115546 (E.D. Ark. May 25, 2011)
• 28. The Model Rules | Rights of Third Persons “ „ 4.4 37 A lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent Subd. (b) shall promptly notify the sender.
• 29. Case Law | Rights of Third Persons Stengart v. Loving Care Agency, Inc. HELD: WHY: 38  Relying on company policy, defendant’s accessed the plaintiffs’ personal Yahoo! emails sent to her attorney on her work-issued laptop  Attorneys did not set aside the arguably privileged messages and failed to notify the plaintiff or seek court permission for use  Court determined attorneys’ retention of a computer forensic expert to retrieve the privileged e-mails and the subsequent use of those e-mails violated Rule 4.4(b) 2010 WL 1189458 (N.J. Mar. 30, 2010)
• 30. The Model Rules | Non-lawyer Assistance “ „ 5.3 39 With respect to [employed/associated non-lawyers], a partner… in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional Subd. (a) obligations of the lawyer
• 31. The Model Rules | Non-lawyer Assistance “ „ 5.3 40 Where the client directs the selection of a particular non-lawyer service provider outside the firm, the lawyer ordinarily should agree with the client concerning the allocation of responsibility for monitoring as (Cmt. 4) between the client and the lawyer
• 32. The Model Rules | Integrity of the Profession “ „ 8.4 41 It is professional misconduct for a lawyer to: (a) violate the Rules of Professional Conduct (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation (g) knowingly fail to comply with a final court order
• 33. Case Law | Integrity of the Profession Aliki Foods, LLC v. Otter Valley Foods, Inc. HELD: WHY: 42  Plaintiff’s “flagrant defiance” of numerous court orders and warnings, intentional destruction of computers and hard drives, and blatant disregard of discovery obligations resulted in a “tremendous waste of resources”  Dismissal was the only viable sanction 2010 WL 2982989 (D. Conn. July 7, 2010)
• 34. Case Law | Integrity of the Profession Victor Stanley, Inc. v. Creative Pipe, Inc. Case 8:06-cv-02662-MJG (D. Md. June 15, 2011) HELD: WHY: 43  “Defendants’ first spoliation efforts corresponded with the beginning of litigation” and “Defendants’ misconduct affected the entire discovery process since the commencement of this case.”  Court awarded $1,049,850.04 in attorney’s fees and costs as a sanction for discovery abuse
• 35. New Technologies & Issues
• 36. Social Networking & Blogs “ „ 45 [I]t should now be a matter of professional competence for attorneys to take the time to investigate social networking sites -Griffin v. State, 192 Md. App. 518, 535 (2010)
• 37. Social Networking & Blogs Use of social networking sites and blogs creates potential for ethical violations or disciplinary action for misconduct » Raises confidentiality, integrity and propriety issues » Attorneys cannot “friend under false pretenses” to gain access to profiles and information otherwise kept private 46
• 38. Case Law | Social Networking & Blogs Case No. CL.08-1S0 47 Lester v. Allied Concrete Gatto v. United Air Lines, Inc. In a wrongful death case, lawyer and litigant sanctioned for lawyer’s instruction to paralegal to “clean up” litigant’s Facebook page. Attorney directly sanctioned for $522,000; client for $180,000. In a wrongful death case, the plaintiff deactivated his Facebook during litigation. Because the information was potentially relevant to damages, the court 2013 WL 1285285 granted an adverse inference instruction.
• 39. Cloud Computing  Cloud computing raises legal ethics issues, particularly around competence and confidentiality of information as information stored in the cloud is outside the lawyer’s control, and is often in numerous locations, including different countries  Lawyers must ensure steps are taken to safeguard security and confidentiality of client information 48
• 40. Parting Thoughts
• 41. Parting Thoughts  The connection between ediscovery and current ethics rules is arguably growing stronger with each case issued  To ensure you are upholding the oath integral to the legal profession, develop a stronger understanding of ediscovery and its interplay with ethical obligations 50
• 42. PLEASE DON’T HESITATE TO CONTACT ME Brendan M. Kenny Blackwell Burke P.A. (612) 343-3211 bkenny@blackwellburke.com www.linkedin.com/in/brendanmkenny Twitter: @KennyBrendan