Metadata, Transparency, Outsourcing & Lawyering.
eDiscovery Class
March 29, 2010
1
The FactsMARKINS has been a practicing attorney since
October, 2001. MARKINS was employed as an
associate attorney at the law firm of Huddleston
Bolen, LLP (“Huddleston”)
The Facts
His wife, also an attorney, was similarly employed at
the law firm of Offutt, Fisher & Nord (“OFN”).
The Facts In late October or early November of 2003,
MARKINS began accessing his wife's OFN e-mail
account without her permission or knowledge.
MARKINS testified that the purpose of reading his
wife's e-mails was to secretly monitor her activities
because he believed she had become involved in an
extramarital affair with an OFN client.
The Facts MARKINS further testified that, initially, he
improperly accessed only his wife's account and later,
that of another attorney, an OFN partner. Eventually,
however, MARKINS’ curiosity got the better of him,
and he began accessing the e-mail accounts of seven
other OFN attorneys.
The Facts
The password to his wife's e-mail account was her
last name. Similarly, the passwords to the e-mail
accounts of all OFN attorneys was the individual
account holder's last name.
The Facts When an OFN attorney began to suspect that her e-
mail account had been improperly accessed, OFN
launched an investigation. From the investigation, it was
learned that on numerous occasions from sometime prior
to November 7, 2003, until March 16, 2006, MARKINS
gained unauthorized access to OFN e-mail accounts from
three IP accounts:
The Facts
These accounts included MARKINS’ Huddleston IP
account; MARKINS’ residential IP account; and the IP
account at the Hampton Inn in Beckley, West Virginia,
where MARKINS had been monitoring a trial in which
both Huddleston and OFN clients were being represented.
The Facts
It is undisputed that MARKINS improperly accessed
the e-mail accounts of OFN attorneys on more than 150
occasions.
The Facts The confidential client information that had been
accessed by MARKINS , a large mass tort case that was in
litigation during the time period at issue. Both law firms
represented co-defendants in that litigation. In March,
2006, MARKINS, along with other lawyers whose firms
were involved in the mass litigation, was monitoring the
trial from the Hampton Inn in Beckley, West Virginia.
The Facts While monitoring the proceedings, MARKINS gained
unauthorized access into various OFN e-mail accounts
from the Hampton Inn's IP account. Huddleston's mass
tort client had a contractual relationship with and a claim
for indemnity against OFN's client. Though the claim was
not then being litigated, the information included in the
firm's e-mail system would have been “helpful” to
Huddleston's client.
The Facts Since MARKINS’ misconduct was reported by the
Charleston Gazette newspaper and the Associated Press,
OFN “has suffered further damage to its image and
reputation.” One of the firm's clients expressed “serious
concerns” about the security breach and about whether
MARKINS improperly accessed important information
concerning that client.
The Facts
This client has put the firm on notice of a potential
claim for damages against it. The Firm anticipates that
similar concerns will be expressed by other clients in the
future and that the negative ramifications and stigma of
MARKINS’ misconduct will be felt for many years.
Questions
Who are the potential plaintiffs?
Questions
When should MARKINS’ law firm
issue a litigation hold?
Questions
In the Rule 26(f) conference, what, if
anything, should MARKINS’ law firm
keep the other side from learning
about the law firm’s information or
systems? Why?
Questions
What kind of metadata would be
important in this case?
Questions
Would MARKINS’ law firm want to
collect and process its own electronic
discovery? Why?
Questions
How would the law firm representing
MARKINS and his firm go about
outsourcing the eDiscovery?
Questions
What issues are involved in selecting
an eDiscovery Vendor?
Questions
What issues are involved in selecting
an eDiscovery Vendor?
Reputation
Bench Strength
Costs
Questions
Other outsourcing issues:
Questions
What kind of ethical and liability
issues do you see in this case?
The CaseSupreme Court of Appeals of
West Virginia.
LAWYER DISCIPLINARY BOARD, Petitioner
v.Michael P. MARKINS, a Member of the West
Virginia State Bar, Respondent.No. 33256.
Submitted April 1, 2008.Decided May 23, 2008.
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