Ethical Challenges of Ediscovery

In the beginning

You can’t win on the substance if you lose on the evidence.

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Discussion Overview

The Rules in Relation to Ediscovery

New Technologies & Issues

Parting Thoughts

The Rules in Relation to Ediscovery

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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

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1.1

1.6

3.33.

44.4

8.4

(as they relate to ediscovery)The Model Rules of Professional Conduct

Competence Confidentiality Candor

Fairness Third Persons Integrity

5.6

Non-Lawyer Assistance

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Amended Ethics Rules

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

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“ „

The Model Rules | Competence

1.1

“A lawyer shall provide competent representation to a client.

Competent representation requires the legal knowledge, skill,

thoroughness and preparation reasonably necessary for the

representation.”

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“ „1.

1

“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

technology…”(Cmt. 8)

The Model Rules | Competence

agilebacon.com

http://www.youtube.com/watch?v=GzYl8OtoiBc&t=8m53s

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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

The Model Rules | Competence

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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

The Model Rules | Competence

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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

HELD: WHY: Court issued

monetary sanctions due to counsel’s failure to speak with key figures at the company

In re A & M Florida Props. II2010 WL 1418861 (Bkrtcpy. S.D.N.Y. Apr. 2010)

Case Law | Competence

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“ „1.

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A lawyer shall make reasonable 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?

The Model Rules | Confidentiality

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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):

Evidentiary Rules | Confidentiality

“Reasonable attempts [made] to prevent disclosure”

(502(b)(2))

Take “prompt, reasonable

steps to rectify error (502(b)(3))

No WaiverDisclosure is

Unintentional

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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

HELD: WHY: Court found

privilege was waived regarding e-mails sent via company e-mail addresses using company computers

Alamar Ranch, LLC v. County of Boise2009 WL 3669741 (D. Idaho. Nov. 2, 2009)

Case Law | Confidentiality

Don’t be an unreliable narrator

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3.3A lawyer shall not knowingly:

Subd. (a)

The Model Rules | Candor

(1) Make a false statement of fact or law…

(3) Offer evidence lawyer knows to be false

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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”

HELD: WHY: Court ordered

defendants to pay $1,000 in sanctions for discovery misconduct

Baez-Eliza v. Instituto Psicoterapeutico de Puerto Rico

Case Law | Candor

2011 WL 2413051 (D.P.R. June 16, 2011)

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3.4A 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

do any such act….Subd. (a)

The Model Rules | Fairness

The Authors of Failure

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Scott Adams, Inc./Dict. by UFS, Inc.

The Model Rules | Fairness

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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.”

HELD: WHY: Judge orders

sanctions for counsel’s bad deposition conduct

Sec. Nat’l Bank of Sioux City v. Abbott Labs.

Case Law | Fairness

2014 WL 3704277 (N.D. Iowa July 28, 2014)

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3.4A 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)

The Model Rules | Fairness

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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”

HELD: WHY: 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

Case Law | Fairness

2010 WL 4222922 (S.D. Ill. Oct. 20, 2010)

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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”

HELD: WHY: Court declined to

compel discovery or grant a hearing

B & B Hardware, Inc. v. Fastenal Co.

Case Law | Fairness

2011 WL 2115546 (E.D. Ark. May 25, 2011)

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4.4A 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 shall promptly notify the sender. Subd.

(b)

The Model Rules | Rights of Third Persons

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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

HELD: WHY: 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)

Stengart v. Loving Care Agency, Inc.2010 WL 1189458 (N.J. Mar. 30, 2010)

Case Law | Rights of Third Persons

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5.3With 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

obligations of the lawyerSubd. (a)

The Model Rules | Non-lawyer Assistance

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5.3Where 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 between the client and the lawyer(Cmt. 4)

The Model Rules | Non-lawyer Assistance

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8.4It is professional misconduct for a

lawyer to:

The Model Rules | Integrity of the Profession

(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

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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”

HELD: WHY: Dismissal was the

only viable sanction

Aliki Foods, LLC v. Otter Valley Foods, Inc.2010 WL 2982989 (D. Conn. July 7, 2010)

Case Law | Integrity of the Profession

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“Defendants’ first spoliation efforts corresponded with the beginning of litigation” and “Defendants’ misconduct affected the entire discovery process since the commencement of this case.”

HELD: WHY: Court awarded

$1,049,850.04 in attorney’s fees and costs as a sanction for discovery abuse

Victor Stanley, Inc. v. Creative Pipe, Inc.Case 8:06-cv-02662-MJG (D. Md. June 15, 2011)

Case Law | Integrity of the Profession

New Technologies & Issues

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“ „[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)

Social Networking & Blogs

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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

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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 granted an adverse inference instruction.2013 WL 1285285

Case No. CL.08-1S0

Case Law | Social Networking & Blogs

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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

Parting Thoughts

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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

Brendan M. KennyBlackwell Burke P.A.(612) 343-3211bkenny@blackwellburke.comwww.linkedin.com/in/brendanmkenny Twitter: @KennyBrendan

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