ethics of e-discovery kevin brown - mclean …...– e.g., frcp 26(g)(2)’s requirement to conduct...

Ethics of E-Discovery

Copyright 2012, State Farm Mutual Automobile Insurance Company.

Kevin S. BrownState Farm Mutual Automobile Insurance Company

April 19, 2016

PurposeTo discuss e-discovery implications of relevant Illinois Rules of Professional Conduct and case law.

To help attorneys become aware of these ethical issues and to avoid Rules violations.


Illinois Rules of Professional ConductRule 1.1Rule 1.6Rule 1.13Rule 3.3Rule 3.4Rule 4.4Rule 5.1Rule 8.4


Rule 1.1: CompetenceA lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

-Illinois Rule 1.1Competence


Duty of Competence• Competence in locating, reviewing, and

producing electronically stored information in litigation is one of the greatest challenges today for attorneys

• Counsel’s obligation to understand its client’s computer systems, examine and produce its information is key to managing discovery in litigation today (whether dealing with e-mail, databases, network share data, or other loose electronic files)


Qualcomm• Every attorney’s worst e-discovery nightmare• Qualcomm v. Broadcom Corp., 2008 WL 66932 (S.D.

Cal. 2008)• $8.5M in sanctions• 6 attorneys originally found in bad faith for failing to turn

over to Broadcom THOUSANDS of significant emails in this high stakes patent infringement trial

• Judge referred the attorneys, defense counsel and in-house counsel, to Bar Association for disciplinary action

• First mention of emails was during cross-examination of Qualcomm witness


Qualcomm• Post-trial search of Qualcomm’s computer files

yielded 200,000 pages of emails that eluded company’s outside lawyers

• In-house procedures found to be flawed

• Judge found all attorneys’ “lack of candor” atrocious

• Judge blamed outside counsel for acquiescing in the “inadequate” corporate repository plan and search


Qualcomm & Rule 1.1 Learnings

1. There’s no substitute for e-discovery due diligence.2. Understand your client’s computer system – learn about

its email system, where laptops are, what databases are used, how information is preserved.

3. Supervising counsel should take responsibility for verifying necessary discovery completed.

4. Be very clear on which attorneys are handling preservation, collection, production.

5. Communicate!


Rule 1.6: Confidentiality

A lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer…

- Comment 16


Duty of Confidentiality: Privilege Issues

• Protecting privilege in the e-discovery age is increasingly difficult given the volume of data

• Counsel should always enter into a clawback agreement– Prevent inadvertent production of privileged or

confidential information– Clawback vs. quick peek

• Be aware of FRE 502(d) and (e)• Coburn Group, LLC v. Whitecap Advisors, LLC, 640 F.

Supp. 2d 1032 (N.D. Ill. 2009)– Email containing work product was inadvertently

disclosed within the meaning of Fed.R.Evid.502. Return of email was ordered.


Rule 1.13 Organization as Client(b) If a lawyer for an organization knows [associated person with organization] is engaged in action, intends to act or refuses to act in a matter…that is a violation of a legal obligation to the organization, or…is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization.


Rule 1.13: Organization As Client

• Although not specifically stated, electronic discovery failures can be presumed to be:

– “A violation of a legal obligation to the organization” that is “likely to result in substantial injury to the organization”

• Courts will levy sanctions against corporations for improper discovery practices

– Sanctions are increasing both in frequency and severity– 7th Circuit Pilot Program courts expect cooperative

discovery efforts (General Principle 1.02)• E-discovery failures may create criminal exposure

– Philips Electronics N.A. Corp. v. BC Technical, 2011 WL 677462 (D.Utah, Feb. 16, 2011)

– Victor Stanley v. Creative Pipe, 2010 WL 3530097 (D. MD. Sept. 9, 2010)


Rule 1.13 Challenges• Common organizational challenges:

– E-discovery can be difficult, and key technical people may be unwilling to perform needed work

– Similarly, it may not be in Information Technology’s best interest to do what is most beneficial to the organization

• In these cases, how can you best advise the organization to avoid harm to the client?

• The organization can choose to accept civil litigation risk, but this should be done at the right level and only after proper advising


Rule 3.3: Conduct Before a Tribunal

(a) A lawyer shall not knowingly:(1) make a false statement of fact or law……(3) offer evidence lawyer knows to be false…(7) engage in other illegal conduct or conduct in violation of these rules


Rule 3.3: Conduct Before a Tribunal

Illustrative e-discovery cases:• Qualcomm (“Attorneys’ ethical obligations do not

permit them to participate in an inadequate document search and then provide misleading and incomplete information to their opponents and false arguments to the court.”)

• Bray & Gillespie Management LLC v. Lexington Ins. Co., 259 F.R.D. 591 (M.D.Fla.,2009) (sanctioning outside counsel for incorrectly representing to the court that metadata was redacted because of the high cost of necessary privilege review (that had already been conducted!))


Rule 3.4: FairnessPreservation of Discoverable Documents & Data

(a) A lawyer shall not:(1) … 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….

- Illinois Rule 3.4 Fairness to Opposing Party and Counsel


Duty to Preserve

• “It is well established that the duty to preserve evidence arises when a party reasonably anticipates litigation.”

– Pension Comm. Of the Univ. of Montreal PensionPlan v. Banc of Am. Sec., LLC, 2010 WL 184312(S.D.N.Y. Jan. 15, 2010).

• “[O]nce a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents.”

– Zubulake v. UBS Warburg LLC (“Zubulake IV”), 220 F.R.D. 212 (S.D.N.Y. 2003)).


Rule 3.4: FairnessUnobstructed Process & Access to Evidence

(a) A lawyer shall not:(a)unlawfully obstruct another party’s

access to evidence….

-Illinois Rule 3.4 Fairnessto Opposing Party and Counsel


Rule 3.4: FairnessNon-Frivolous Litigation Tactics

A lawyer shall not:(d) 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….

-Illinois Rule 3.4 Fairness to Opposing Party and Counsel


How to Be Fair Under Rule 3.4:7th Circuit E-Discovery Pilot Program

• Governs how to handle E-discovery

• Goals: FRCP 1 via cooperation and proportionality

• Requires:– Competent understanding of party’s own ESI– Competent general understanding of ESI obligations and

issues– Early and meaningful discussion of preservation, search, and

production of ESI– Proportional ESI requests and responses

• http://www.ilcd.uscourts.gov/Statement%20-%20Phase%20One.pdf


Rule 4.4: Respect for Rights of Third Persons

(a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.

(b) A lawyer who receives a document relating to the representation of the lawyer's client and knows that the document was inadvertently sent shall promptly notify the sender.



Stengart v. Loving Care Agency, Inc., 2010 WL 1189458 (N.J. 2010) implicated this rule• In employment action, defendant hired

forensic expert to retrieve data from employer-provided laptop computer

– Successful retrieval of data, including that found in temporarily-stored Internet cache files

– This location included emails from password-protected, web-based email account

• The court ruled the lawyer’s failure to promptly notify its adversary constituted a violation of RPC 4.4(b)



What about “friending”?• 4.4(a) “In representing a client, a lawyer shall not …

use methods of obtaining evidence that violate the legal rights of such a person.”

• Friending can range from true name and full disclosure of litigation-related interest to subterfuge.

– Outright lying would violate Rules 4.1 and 8.4(a)(4)– Truthful but incomplete disclosure might (e.g., New York

City Bar Opinion 2010-2 or might not (e.g., Philadelphia Bar Opinion 2009-02) be permissible

• Be very careful especially that informal discovery efforts do not violate ever-expanding privacy rights of individuals


Rule 5.1: Supervision

(a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.

(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.

- Illinois Rule 5.1 Responsibilities of Partners, Managers, and Supervisory Lawyers


Rule 5.1: Supervision

• E-discovery is different than traditional discovery in two general ways:

– More complicated and prone to mistakes– Increased sanctions (likelihood and severity) for

failures• These differences render it unreasonable to

delegate e-discovery matters completely to junior lawyers or legal assistants

– How much involvement / oversight is required is highly fact-dependent

• Again, Qualcomm is instructive– “Supervised” or “supervision” mentioned 12 times in

the 48-page January 2008 Order


Rule 8.4: Misconduct

It is professional misconduct for a lawyer to:…

(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

(d) engage in conduct that is prejudicial to the administration of justice.


Rule 8.4: Misconduct• Failure to properly conduct e-discovery violates discovery

rules– e.g., FRCP 26(g)(2)’s requirement to conduct a “reasonable

inquiry” before signing discovery• Numerous cases have held egregious e-discovery abuses to

threaten the integrity of the judicial process:– Philips Electronics N.A. Corp. v. BC Technical, 2011 WL

677462 (D.Utah, Feb. 16, 2011)– Victor Stanley v. Creative Pipe, 2010 WL 3530097 (D. MD.

Sept. 9, 2010) – Doppes v. Bentley Motors, Inc., 94 Cal. Rptr. 3d 802 (Cal.

App. 4 Dist. 2009)• Rule 8.4 prohibits a lawyer from “engag[ing] in conduct that

is prejudicial to the administration of justice.”• So e-discovery failures can lead to ethics exposure in

addition to severe civil sanctions.


Summary

• Legal and ethical standards require lawyers to:– Learn about applicable e-discovery standards (e.g.,

procedural rules, 7th Cir. PP, Sedona)– In specific cases, really understand (or associate

yourself with someone who does) relevant ESI– Have timely discussions with opposing counsel

about ESI issues, specifically including preservation– Avoid e-discovery gamesmanship with opposing

counsel and the court• Failure to meet e-discovery obligations can give

rise to ethics exposure as well as civil sanctions– Competence, cooperation, and candor are key


Questions and Contact Information

Questions?

Kevin S. [email protected]

309-766-2743
