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Ethical Challenges of Ediscovery

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

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

Discussion Overview
 The Rules in Relation to Ediscovery
 New Technologies & Issues
 Parting Thoughts
5

The Rules in Relation to Ediscovery

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

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

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

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.”

“
„
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…”

 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

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

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

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?

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

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)

Don’t be an unreliable narrator

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

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)

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….

Scott Adams, Inc./Dict. by UFS, Inc.
29

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)

“
„
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)

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)

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)

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.

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)

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

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

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

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)

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

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)

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

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.

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

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

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

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