Guest Post on Everlaw: Is An Attorney Responsible for Manually Reviewing Discovery Before Production?

Review-TeamI prepared a guest post for Everlaw’s blog on an attorney’s ethical duty to follow a client’s instruction to manually review documents prior to production.

Is expert testimony required to show a lawyer breached their standard of care or is this issue one a jury can decide on their own?

Check out the case summary and tips on document review at Everlaw:

What is an attorney’s Duty of Loyalty to review discovery documents before producing them to an opposing party? That issue recently arose in a summary judgment battle between a client and his former attorneys.

The Case:

The client claimed that the law firm had committed malpractice because the attorneys failed to review discovery responses before production to the opposing party – after being directed to do so by their client. Things really went wrong when the client was hit with sanctions, and the law firm denied knowledge of certain documents in court. Price Waicukauski & Riley v. Murray, 2014 U.S. Dist. LEXIS 130680 (S.D. Ind.Sept. 18, 2014).

 Continue reading at Is An Attorney Responsible for Manually Reviewing Documents?

eDiscovery Ethics Webinar with Judge Facciola on June 21, 2012 (Hosted by iCONECT)

Approved for one hour of California General CLE Credit. 

The duty of competency requires lawyers to have the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation of their clients.

eDiscovery has challenged many lawyers to provide their clients with competent representation on issues such as the preservation of ESI, effectively conduct Rule 26(f) conferences and devising search terms.

Please join us on June 21st at 9:30am PST/12:30pm EST for a discussion with Magistrate Judge John M. Facciola on the lawyer’s duty of competency in eDiscovery. Our discussion will include:

Ethical issues in the preservation of ESI

Competency & Search Terms

Duty of Candor To The Court

Ethical Challenges in Criminal Cases

Webinar Registration

About Magistrate Judge John Facciola:

John M. Facciola was appointed a United States Magistrate Judge in the District of Columbia in 1997. Prior to being appointed to the bench, he served as an Assistant District Attorney in Manhattan from 1969-1973, and was in private practice in the District of Columbia from 1974-1982. Judge Facciola joined the U.S. Attorney’s Office in 1982 and served as Chief of the Special Proceedings section from 1989 until his appointment as Magistrate Judge. Judge Facciola is a frequent lecturer and speaker on the topic of electronic discovery. Judge Facciola is a member of the Sedona Conference Advisory Board, the Georgetown Advanced E-Discovery Institute Advisory Board and he is also the former Editor in Chief of The Federal Courts Law Review, the electronic law journal of the Federal Magistrate Judges Association. He has recently been appointed to the Board of Directors of the Federal Judicial Center. His most recent publication is with Jonathan M. Redgrave, Asserting and Challenging Privilege Claims in Modern Litigataion: The Facciola-Redgrave Framework, 2009 Fed. Cts. L. Rev. 19 (2009). He received his A.B from the College of the Holy Cross and his J.D. from the Georgetown University Law Center.

eDiscovery Does Not Mean Esoteric Discovery

News Am. Mktg. In-Store Servs., is a breach of contract case involving multiple eDiscovery disputes.  According to the Plaintiff, the Defendant did the following:

Destroyed relevant email evidence, including an email server;

Failed to produce responsive documents in discovery due to the above failure; and

Failed to run appropriate ESI searches on Defendants’ computers.

News Am. Mktg. In-Store Servs. v. Floorgraphics, Inc., 2012 U.S. Dist. LEXIS 76543, at *3 (D.N.J. May 30, 2012).

The Plaintiffs further argued the Defendants needed to produce additional discovery and sanctions were warranted. Additionally, the Plaintiffs sought a neutral computer forensic expert to conduct an evaluation of Defendants’ computer systems. Id.

e-Discovery Mea Culpa

The Defendants countered that no discovery had been destroyed, but admitted that their discovery production was deficient.  News Am. Mktg. In-Store Servs., at *3-4.

The Defendants explained [conceded] that they searched the wrong computers and applied the wrong search terms. News Am. Mktg. In-Store Servs., at *4.

However, the Defendants stated they attempted to correct every deficiency and would continue to do so. Id.

Regarding the “destroyed” email server, the Defendants stated it was a “pass-through” server that had been reformatted.  Id. The Defendants explained the server would push incoming emails through the server to individual computers. Id. According to the Defendants, there was no ESI on this pass-through server. Id.

As part of their mea culpa, the Defendants proclaimed they would make witnesses available to be re-deposed and pay the reasonable attorneys fees for the depositions. Id. Moreover, any motions to compel were premature, because they were producing hundreds of thousands of documents. News Am. Mktg. In-Store Servs., at *5.

The Court’s Findings

The case should be about the merits not some esoteric electronic discovery issue.

Magistrate Judge Mark Falk

The Court’s conclusions on the dispute were direct and to the point:

One, the request to compel discovery is premature. Defendants admit that they used incorrect ESI search terms and did not search all of the appropriate avenues of electronic information. They have represented to the Court that 230,000 documents are in the process of being produced and that the production is being checked and re-checked by Defendants’ computer experts to ensure its accuracy. Thus, there is no basis for an order compelling the production of documents until, at least, Defendants’ production is complete.

Two, it appears that Defendants failed to meet their Federal Rule of Civil Procedure 26(f) ESI obligations at the outset of the case. See Fed. R. Civ. P. 26(f)(3)(C). The briefing discloses that Defendants’ counsel was not aware of the structure of Defendants’ computer systems until recently. It is inappropriate for Defendants to only now—three years after the case was filed and after discovery has closed—investigate their electronic systems.

Three, the Court is unable to determine whether information was contained on Defendants’ “reformatted,” “pass through” server. The parties’ positions on this are diametrically different and consist of unsupported conclusions laced with hyperbole.

Four, it is unclear whether ESI allegedly destroyed (or “passed through” Defendants’ server) may be recovered and, if so, the cost of doing so. This important issue is not adequately addressed in the papers.

Five, it is unclear whether the burden and expense of conducting the electronic discovery outweighs the benefit of doing so. See Fed. R. Civ. P. 26(b)(2)(C)(iii). The Court cannot discern from the papers whether a deep forensic search is justified.

Six, the appointment of a neutral computer expert is not called for at this time. In effect, it would transfer the ESI obligations of the parties to the Court. Stated another way, the issues are not sufficiently articulated for the Court to appoint an expert to embark on an unlimited search.

Seven, there is no basis for the Court to consider spoilation sanctions (or any sanctions) until, at least, Defendants complete their discovery production and the questions raised above are answered.

News Am. Mktg. In-Store Servs., at *5-7, (emphasis added).

The Court allowed the Plaintiff to take the 30(b)(6) deposition of the Defendants’ eDiscovery PMK that would be binding on the Defendant. The parties were directed to meet and confer on the deponent. Additionally, the PMK needed to be able to address whether any ESI could be recovered and the specific cost to do so. News Am. Mktg. In-Store Servs., at *7.

In the event there were still eDiscovery disputes after the deposition, the Court stated:

[T]he parties may simultaneously submit letters (double spaced, not to exceed ten pages) explaining the relevance and importance of the discovery and the benefits and burdens associated with the discovery—e.g., whether the costs and effort of securing the discovery is proportional to the expected result. Any letter from counsel must be accompanied by an affidavit from the party’s ESI expert which addresses the technical aspects of the dispute. The ESI expert’s affidavit must discuss the projected costs of proceeding with as much specificity as possible. General, conclusory statements—e.g., “it will be prohibitively expensive”—are unacceptable.

News Am. Mktg. In-Store Servs., at *7-8.

The Court’s opinion sent a very strong message on the discovery disputes between the parties: The case should be about the merits not some esoteric electronic discovery issue. News Am. Mktg. In-Store Servs., at *8 (emphasis added).

The Court was blunt in advising the parties it was “wary of the use of broad and ambiguous electronic discovery requests as a litigation tactic or as a ‘fishing expedition.’” Id. Moreover, the Court stated it was “troubling” for this level of discovery dispute to surface after 18 months of discovery.  Id. Additionally, the Court effectively sent an ethical message to the parties to “proceed in good faith, take reasonable positions, and attempt to resolve their dispute in accordance with the Guidelines For Litigation Conduct.”  News Am. Mktg. In-Store Servs., at *7-8.

The opinion concludes with the warning the Court “not hesitate to award substantial fees to the non-prevailing party or any party found to be proceeding in bad faith.”  News Am. Mktg. In-Store Servs., at *8-9.

Bow Tie Thoughts

I was impressed with Judge Mark Falk’s outlining of case issues and his order. Additionally, the Defendants attempts to correct their mistakes were very respectable.

This opinion highlights multiple eDiscovery issues that are taking place all over the United States: 1) The Duty of Competency in eDiscovery; 2) Providing the Court adequate information to make rulings; and 3) Do not forget the merits of the lawsuit with electronic discovery issues.

The Duty of Competency and eDiscovery has been slowly developing issue since December 2006. There are many attorneys who outright admit they do not understand preservation, review methodologies or discovery productions. One friend recently told me his firm just asks for paper productions because of the lack of knowledge in what to request.

In the current case, the Court stated, “It is inappropriate for Defendants to only now—three years after the case was filed and after discovery has closed—investigate their electronic systems.”  News Am. Mktg. In-Store Servs., at *5-6. Moreover, the Court it was “troubling” to have this sort of discovery dispute after 18 months of discovery. News Am. Mktg. In-Store Servs., at *8.

How can attorneys best meet their duty of competency in eDiscovery? While every client is different, it is important to have a discovery plan from the inception of the case. This may include in-depth client interviews with the parties, custodians, and IT staff (to name a few), to learn how the client uses technology. How does their email system work? Do they text or iMessage?  What sorts of computers do they use? Any tablets? Voicemail? Any personal devices used for business?

I believe the Duty of Competency requires attorneys to either understand their client’s technology themselves or at a minimum, hire a consultant to help the attorneys navigate the issues. Without such investigation, it is difficult to meet one’s ethical duty of candor to the court on the facts of the lawsuit and provide competent representation of their clients.

As to the second issue, lawyers cannot simply walk into court and tell a judge, “Your Honor, it’s expensive.”  The first questions from the Court will be “why and how much.” The answer cannot simply be “Because it is.”

Attorneys need to argue ESI is not reasonably accessible because of undue burden or cost (Fed. R. Civ. P. 26(b)(2)(B)) or that the burden and expense of conducting the electronic discovery outweighs the benefit of doing so (Fed. R. Civ. P. 26(b)(2)(C)(iii)), with specific information, most likely from an eDiscovery expert or IT professional.

The unofficial standard for demonstrating undue burden or expense might be from Judge Facciola’s United States ex rel. McBride v. Halliburton Co., 2011 U.S. Dist. LEXIS 6412, 1-2 (D.D.C. Jan. 24, 2011) opinion: “In excruciating, but highly educational and useful, detail.”

Judges want to have enough information that they can make the right decision. While there will be attorneys simply proclaiming searching a hard drive is expensive, the better litigation practice is to have a well documented affidavit outlining the process and cost to search for specific ESI.

Finally, Judge Falk’s statement The case should be about the merits not some esoteric electronic discovery issue,” should go on t-shirts at e-Discovery conferences. It is easy to become enamored with search technology, collection methodologies and every other eDiscovery issue. However, every eDiscovery issue should be framed around the facts of the lawsuit, the causes of action and be relevant to competently move the case forward. The technology exists to enable lawyers to practice law, not to overshadow the merits of the case.

Espresso, WiFi, & Confidentiality with a Twist of Lemon

Many attorneys, as with a large contingent of the general public, do not possess much, if any, technological savvy. Although the Committee does not believe that attorneys must develop a mastery of the security features and deficiencies of each technology available, the duties of confidentiality and competence that attorneys owe to their clients do require a basic understanding of the electronic protections afforded by the technology they use in their practice. If the attorney lacks the necessary competence to assess the security of the technology, he or she must seek additional information or consult with someone who possesses the necessary knowledge, such as an information technology consultant.

California State Bar Professional Responsibility and Conduct Formal Opinion No. 2010-179, page 5.

Some associate attorney went out for coffee and got a lot more than an espresso with a twist of lemon.

California attorneys now need to consider 6 factors before enjoying a mocha and sending work emails on a firm issued laptop while on a coffee shop’s WiFi service according to the California State Bar Professional Responsibility and Conduct Formal Opinion No. 2010-179. 

The Opinion addressed whether an attorney violates their duties of confidentiality and competence when transmitting or storing confidential information that might be susceptible to third parties. Opinion No. 2010-179. In short, an associate attorney sending work emails from Starbucks on her laptop. And since the lawyer lives in the 21st Century with a monthly billable hour requirement, she takes her laptop home every night to do legal research on her cases using her wireless Internet connection. 

The Opinion rationally discussed an attorney’s ethical duty to preserve client confidences.  For example, if a lawyer is on an airplane and working on a computer, they should turn the screen, so the person sitting next to them cannot see it.  Opinion No. 2010-179, fn 9. 

Fear of hacking  while on a wireless network is real.  For example, Firefox can be hacked by the add-on Firesheep.  This hacking add-on “adds a sidebar to Mozilla’s Firefox browser that shows when anyone on an open network — such as a coffee shop’s Wi-Fi network — visits an insecure site. ‘Double-click on someone [in the sidebar] and you’re instantly logged on as them.’” See, New Firefox add-on hijacks Facebook, Twitter sessions, Last Visited on 11/04/2010

As Opinion No. 2010-179 highlights, lawyers have an express duty to “[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” Opinion No. 2010-179, page 2, citing (Bus. & Prof. Code, § 6068, subd. (e)(1).)

Furthermore, California Rules of Professional Conduct, Rules 3-110(A) “prohibits the intentional, reckless or repeated failure to perform legal services with competence.” Opinion No. 2010-179, page 2.   

Moreover, “’competence’ may apply to an attorney’s diligence and learning with respect to handling matters for clients.” Opinion No. 2010-179, page 2, citing Rules Prof. Conduct, rule 3-110(B).

The Opinion outlined the following six factors before using wireless communications:

1) The level of security attendant to the use of that technology, including whether reasonable precautions may be taken when using the technology to increase the level of security;

2) The legal ramifications to a third-party who intercepts, accesses or exceeds authorized use of the electronic information;

3) The degree of sensitivity of the information;

4) The possible impact on the client of an inadvertent disclosure of privileged or confidential information or work product;

5) The urgency of the situation; and

6) The client’s instructions and circumstances, such as access by others to the client’s devices and communications.

Opinion No. 2010-179, page 1.

The Committee ultimately found the following: 

“[D]ue to the lack of security features provided in most public wireless access locations, Attorney risks violating his duties of confidentiality and competence in using the wireless connection at the coffee shop to work on Client’s matter unless he takes appropriate precautions, such as using a combination of file encryption, encryption of wireless transmissions and a personal firewall.”

Opinion No. 2010-179, page 7.

The Opinion stated that using a public wireless network might violate a lawyer’s ethical obligations, because of the “sensitivity” of the case.  Id.

The Committee also stated that using a personal wireless network to work from home would not violate a lawyer’s ethical duties, provided the network is configured with “appropriate security features.” Id. 

Translated: You might need your coffee to go, but working from home on the weekends should be ok.  

Bow Tie Thoughts

People are used to having wireless technology, especially as we become more “App” and “Cloud” dependant.  However, attorneys must always be aware of their ethical duties as they look to use new technologies.

Accessing email from a coffee shop is one thing, but there could be greater issues if an attorney is doing document review on a hosted review platform.  While document review can be extremely painful and working at a coffee shop a welcome break, attorneys should be very mindful where they are accessing “stored confidential information” on a public wireless network to avoid discovery and attorney work product from being hacked.

Going Too Far with a Litigation Hold: Do Not Secretly Copy the Adverse Party’s Data

In a business divorce, the Plaintiffs received a litigation hold notice from the Defendants.  The Plaintiffs then secretly copied computer files from the Defendants’ data center in Oakland, California through their virtual private network (VPN) connection to the data center.  Joseph Oat Holdings, Inc. v. RCM Digesters, Inc., 665 F. Supp. 2d 448, 452 (D.N.J. 2009).

Here is a quick take away: This was a bad idea.  Don’t play spy as your litigation hold strategy. 

Even though the Plaintiffs dodged some violations, secretly copying data from a party as a preservation procedure is riddled with risk. 

The Plaintiffs’ actions erupted with in-depth analysis on whether the California Computer Data Access and Fraud Act was violated by this “litigation hold” tactic. Joseph Oat Holdings, Inc., at *451. 

While there are other points of law at issue in this detailed opinion shortly addressing conversion, Federal and New Jersey law, this article will focus on the California Computer Data Access and Fraud Act analysis. 

The Facts & Procedural History: A Litigation Hold Too Far

Two business partners in the biological sciences industry decided to end their business relationship after 18 “stormy” months.  Joseph Oat Holdings, Inc. at *451.

The Plaintiffs, without either the Defendant’s permission or knowledge, accessed and copied over 150,000 files at the Defendant’s data center.  Joseph Oat Holdings, Inc. at *454. 

Many of the files were created after the parties ended their joint venture.  Id.

The data was accessed after the Plaintiffs had a right to do so, because the property rights had reverted to the Defendants.  Joseph Oat Holdings, Inc. at *455. 

There was evidence the Plaintiffs also deleted files and changed administrative passwords.  Joseph Oat Holdings, Inc. at *455. 

The Plaintiffs named their data acquisition project the “Information Copy Project.”  Joseph Oat Holdings, Inc. at *454.  They were able to keep the project secret for a year.  Id.

The Plaintiffs’ computers had desktop shortcuts to the “Information Copy Project” files, allowing quick access to the electronically stored information.  Joseph Oat Holdings, Inc. at *454-455. 

The Plaintiffs claimed they were just preserving electronically stored information and had permission to do so because the Defendants sent a “litigation hold.”  As such, they did not violate the California Computer Data Access and Fraud Act (or other laws) for their “preservation” actions.  Joseph Oat Holdings, Inc. at *455. 

And with that, the “litigation hold” defense to secretly accessing and copying a data center was born. 

The Defendants referred to the Plaintiffs’ preservation actions as an “after-the-fact concoction to justify their illegal actions.” Joseph Oat Holdings, Inc. at *452. 

The Magistrate Judge found that the Plaintiffs’ secretive conduct in discovery was “troubling,” however, found that the data was copied to seek a business advantage, not a litigation advantage.  Joseph Oat Holdings, Inc. at *453.  As such, the proper remedy was for the Plaintiffs to pay the Defendants’ costs, but not attorneys’ fees.  Id. 

Dueling Summary Judgments

The District Court addressed the data acquisition issues in the parties’ dueling motions for partial summary judgment.

The Defendants went on the offensive in their partial summary judgment motion, arguing the Plaintiffs violated the California Computer Data Access and Fraud Act.  The key issue was whether the Plaintiffs “knowingly and without permission accessed, and/or copied, and/or deleted defendants’ computer files.” Joseph Oat Holdings, Inc. at *454. 

The California Computer Data Access and Fraud Act (California Penal Code § 502), states in relevant part:

[A]ny person who commits any of the following acts is guilty of a public offense:

(1) Knowingly accesses and without permission alters, damages, deletes, destroys, or otherwise uses any data, computer, computer system, or computer network in order to either (A) devise or execute any scheme or artifice to defraud, deceive, or extort, or (B) wrongfully control or obtain money, property, or data.

(2) Knowingly accesses and without permission takes, copies, or makes use of any data from a computer, computer system, or computer network, or takes or copies any supporting documentation, whether existing or residing internal or external to a computer, computer system, or computer network. ..

(4) Knowingly accesses and without permission adds, alters, damages, deletes, or destroys any data, computer software, or computer programs which reside or exist internal or external to a computer, computer system, or computer network. . . .

(6) Knowingly and without permission provides or assists in providing a means of accessing a computer, computer system, or computer network in violation of this section.

(7) Knowingly and without permission accesses or causes to be accessed any computer, computer system, or computer network.

 Joseph Oat Holdings, Inc. at *454. 

The Plaintiffs’ key defense was that they had “permission” to access the data because of the litigation hold letter from the Defendants to preserve “…all recorded information…”  Joseph Oat Holdings, Inc. at *455.

The Plaintiffs further argued they were motivated to preserve the electronically stored information out of fear the Defendants would “recklessly destroy electronic information by attempting to unilaterally sever the joint system,” thus they “began to make a backup copy of the data that was on the joint server in Oakland.” Joseph Oat Holdings, Inc. at *455.

The Plaintiffs mounted a “should have expected” argument, claiming that since the Defendants’ attorneys knew there was an active VPN connect, the defense attorneys “should have expected” the Plaintiffs to copy the data.  Id.

No “Litigation Hold” Shield

There is no “litigation hold” defense shield for secretively copying data.  The Plaintiffs’ arguments were rejected twice by the Magistrate Judge and by the District Court.  Joseph Oat Holdings, Inc. at *455.

The Court noted that the Plaintiffs maintained desktop shortcuts to the files, which severely undercut any notion of preservation.  Joseph Oat Holdings, Inc. at *455-456.  Preserving data requires it is being saved and unaltered for litigation.  The very fact there were desktop shortcuts on the Plaintiffs’ computers highlighted the data could be accessed and used by a party.  That is simply not preservation for litigation.  

As the Court explained:

The duty to preserve evidence for litigation is just that–for preservation of documents as they existed at the commencement of litigation. Further, that duty is to preserve one’s own documents. It is not to serve as a method by which to create an accessible database of an adversary’s proprietary information.

Joseph Oat Holdings, Inc. at *456.

The Court further stated that a preservation letter from an opposing party does not give “a party carte blanche authority to secretively copy computer files located on the adversary’s computer server.”  Joseph Oat Holdings, Inc. at *456. 

The Court went on to explain that if there truly was a fear of the destruction of evidence, the Plaintiffs should have sought relief from the Court, most logically in the form of a preservation order on a expedited basis.  Joseph Oat Holdings, Inc. at *456.  Since the lawsuit was already underway and the offending party was the Plaintiff, they had the means and ability to seek judicial relief from the Court.  Id.

No Litigation Privilege Protection

The Plaintiffs claimed their conduct in copying the data in secret was protected by the litigation privilege.  Joseph Oat Holdings, Inc. at *456. 

The Litigation Privilege protects attorneys and litigations with an “absolute privilege to statements or communications made…in the course of judicial and quasi-judicial proceedings.”  Joseph Oat Holdings, Inc. at *456, FN 5. 

The Plaintiffs argued that Litigation Privilege protected them for their secretive data copying, because, “[c]ommon sense and fairness dictate that a litigant should be permitted to discharge their e-discovery duties without the fear of being subjected to additional causes of action.” Joseph Oat Holdings, Inc. at *456. 

The short answer is “NO” to this argument.  As the Plaintiffs’ actions were found not to be done for litigation purposes, the litigation privilege was not applicable.  Joseph Oat Holdings, Inc. at *457. 

One probably can argue data preservation is not a communication made in the course of a judicial proceeding and would further be inapplicable on those grounds. 

The California Computer Data Access and Fraud Act

The Court held the Plaintiffs violated the California Computer Data Access and Fraud Act. Joseph Oat Holdings, Inc. at *457.  

The Court held that the “unauthorized copying of a competitor’s proprietary information was ‘wrongful’ as defined by the statute and the California legislature,” pursuant to subsection (1) of the Computer Data Access and Fraud Act.  Joseph Oat Holdings, Inc. at *458.   

The Court found that after the end of the joint venture that “no rational factfinder could conclude that plaintiffs had permission to copy the files of a completely separate and unrelated entity, and particularly a competitor,” pursuant to subsection (2) of the statute.  Joseph Oat Holdings, Inc. at *458.   

The Defendants’ Relief for Violation of the California Computer Data Access and Fraud Act

The Court ordered the Plaintiffs to return all copies of the data after the ending of their joint venture.  The Plaintiffs were also barred from using the data “in any manner.”  Joseph Oat Holdings, Inc. at *460.    However, there was no injunction issued for the “pre-divorce” data.  Id. This data had been produced in discovery by the Defendants to the Plaintiffs.  Id. 

Bow Tie Thoughts

When it comes to the preservation of evidence, here are some basic actions:

  1. Send a written litigation hold to your client once litigation is reasonably anticipated.   
  2. Discuss with your client possible data storage locations that can be subject to the law suit.
  3. Send a preservation letter to your opponent.
  4. Discuss at a meet and confer the preservation of electronically stored information, including custodians and data locations.
  5. If at any point there is a real threat that the opposing party’s data will be lost, seek the Court’s assistance for a preservation order or a temporary restraining order to cease the actions threatening the loss of electronically stored information.  Due to the transitory nature of some data, an expedited order might be necessary. 

The temptation to play spy and secretly copy your adversary’s data is fraught with risk.  There are different Federal and State laws that prohibit the unauthorized access of computer systems.  There is no “litigation hold” exception to these laws and it is doubtful that a colorable argument can be made with the “litigation privilege” to usurp these data protection laws. More importantly, a lawyer has an ethical duty not to advise a client on how to commit a crime. 

The moral of the story is simple: If there is truly the risk of data destruction, seek the help of the Court.

Proving Conspiracies with Electronically Stored Information

There is no shortage of people utilizing technology to facilitate illicit or questionable actions.  Below are two recent examples.

Price Fixing Conspiracy

In In re Static Random Access Memory Antitrust Litigation, the Plaintiffs alleged the Defendants engaged in a ten year conspiracy to fix and maintain artificially high prices for Static Random Access Memory (SRAM).  In re Static Random Access Memory Antitrust Litig., 2009 U.S. Dist. LEXIS 110407 (N.D. Cal. Nov. 25, 2009). 

For those not familiar with SRAM, it is a memory device that cannot retain data without a power supply.  In re Static Random Access Memory Antitrust Litig., at *28.  SRAM is used in many electronic devices, including the following: 

(1) The communications market in cell phones and Voice Over Internet Protocol (VOIP) technology;

(2) The computer market in servers, mainframes, high-end computer workstations, and personal digital assistants (PDAs) and smart phones; and

(3) The networking communications market in routers, switches, proxy and gateway devices, modems, storage area networks and firewalls.

In re Static Random Access Memory Antitrust Litig., at *28. 

The Plaintiffs claimed the Defendants, who controlled sixty to seventy percent of the market share of total SRAM sales, engaged in price fixing through email, phone and in person communications.  In re Static Random Access Memory Antitrust Litig., at *28-29.

The recent opinion certified the case as a class action.  This will be an interesting case to watch for the technology involved and what emails appear as evidence supporting the Plaintiff’s claims. 

Another Text Message Helping Prove a Drug Dealing Conspiracy

In a factually protracted drug enforcement case, the Court found enough circumstantial evidence to support the Defendant’s conspiracy conviction. United States v. Alejandro, 2009 U.S. App. LEXIS 25271, 7-8 (5th Cir. Tex. Nov. 17, 2009)

One trial exhibit was a text message that stated: “Pat knows where I can find a dub?” Alejandro, at *7.

The Court went on to define “Pat” was short for Patrick, the Defendant’s first name.  Additionally, the Court explained “dub” was a code word for $200 worth of crack. Alejandro, at *7.

While there was other evidence, such as drug scales and a co-conspirator’s purse with a large amount of cocaine, the text message obviously was damaging evidence.  Alejandro, at *7.

Bow Tie Thoughts

Civil discovery and criminal prosecutions will continue to find text messages, emails or social networking status messages as the smoking gun evidence.  Lawyers must consider the broader scope of discovery that includes these highly transitory forms of electronically stored information.

Attorney Client Text Messages or Texting & Depositions Don’t Mix

A child was injured at an Old Navy store (a subsidiary of the Gap) on a clothing rack, and naturally, a lawsuit followed in Federal Court based on Diversity Jurisdiction. Wei Ngai v. Old Navy, 2009 U.S. Dist. LEXIS 67117 (D.N.J. July 31, 2009).

The Plaintiffs deposed the Gap’s General Liability Claims Manager via video deposition on the chain of custody of the clothing rack. Ngai, 2.

The witness was in Sacramento, California, Defense attorneys in Fort Lee, New Jersey and Pro Hac Vice in Southfield, Michigan.  Ngai, 2.

The deponent and their Pro Hac Vice attorney were only visible from the chest up and their hands were not visible.  Ngai, 2.

However, the Pro Hac Vice attorney and the deponent had very busy hands texting each other.  Before the deposition, the two sent 11 text messages between themselves.  Ngai, 4.

TextingDuring the one hour and twelve minute deposition, the attorney and client exchanged 5 more text messages.  Ngai, 3.  Below is the timing of the messages: 

FROM TO TIME
PHV counsel Deponent 3:05:26 PM
PHV counsel Deponent 3:24:18 PM
PHV counsel Deponent 3:26:30 PM
Deponent PHV counsel 3:28:38 PM
Deponent PHV counsel 3:28:54 PM

Ngai, 4.

Then there was perhaps one of the worst sending errors text message history: The Pro Hac Vice attorney sent a text to the PLAINTIFF attorney saying, “[you] [are] doing fine.”  Ngai, 2. 

The Plaintiff’s attorney suspected shenanigans, requested the defending attorney preserve his text messages from the deposition.  Ngai, 2.

As one would expect, the Pro Hac Vice attorney claimed the text messages were all sent during a break.  However, the Court stated the record showed that only one break was taken, at an unknown time.  Ngai, 5.  Moreover, the NJ attorneys reported that the deponent was visible the entire deposition, minus the deponent and NJ attorneys going off camera to phone the Pro Hac Vice attorney.  Ngai, 5.

The Fallout Begins…

Pro Hac Vice attorney informed the court by letter of the text message incident and claimed the text messages were protected by the attorney-client privilege.  Ngai, 6.  Deciding to fall on his own sword, the Pro Hac Vice attorney attempted to withdraw from representing the Defendant.  Ngai, 6.

The Plaintiff opposed the Pro Hac Vice attorney’s withdrawal, claiming the withdrawal would delay the trial. Ngai, 6.  The Plaintiff requested all non-attorney-client privileged documents that supported the Pro Hac Vice attorney’s withdrawal.  Ngai, 6. 

The Court granted the withdrawal and ordered the Defendant to either produce the text message attachment provided to the Court or explain why the Attorney-Client privilege should not be pierced.  Ngai, 6-7.

Privileged Text Messages?

 The Defendant argued against producing the transcript of the text messages because:

(1) The communications are protected by the attorney-client privilege and work product rule;

(2) The crime fraud exception does not apply because the communications were not in furtherance of a crime;

(3) The “at issue” exception does not apply because the communications do not refer to the client’s state of mind or any other relevant issue in the case;

(4) There is no Rule of Professional Responsibility that compels this discovery; (5) the communications have no effect on the case; and

(6) The court rules provide that inadvertent disclosures must be returned to the sender. Ngai, 7.

The Plaintiff in turned argued that the text messages were not protected by the Attorney-Client Privilege.  Ngai, 7-8.

New Jersey Attorney-Client Privilege Standards

The attorney-client privilege statute states “communications between lawyer and his client in the course of that relationship and in professional confidence, are privileged, and a client has a privilege (a) to refuse to disclose any such communication, and (b) to prevent his lawyer from disclosing it . . . .” Ngai, 8-9, citing N.J.S.A. 2A:84A-20.

One key test for sending an Attorney-Client communication is between the attorney and their client for legal advice with the expectation that its content remain confidential.” Ngai, 9-10, citations omitted.

The disclosure of these communications “to or in the presence of third-parties destroys the confidential nature of the communication and therefore such communications are not privileged.” Ngai, 10, referencing Aysseh v. Lawn, 186 N.J. Super. 218, 222, 452 A.2d 213 (Ch. Div. 1982).

Just When Were the Communications Made?

The Court held the text messages made BEFORE the deposition were privileged, which the possible exception of the last message, which the Court did not explain in depth.  Ngai, 11-12.

The Court explained the pre-deposition text messages related to the upcoming deposition, including “words of encouragement,” that attorney and client would have before a legal proceeding.  The Court characterized these text messages as furthering the client’s legal interest and were thusly protected.  Ngai, 11-12.

Texting During the Deposition or “No Note Passing”

The text messages sent during the deposition were not privileged.  Ngai, 12.

Federal Rule of Civil Procedure Rule 30(c) states that “depositions are to be conducted in the same manner as trial examination.”  Ngai, 12.

Rule 30 does not allow a lawyer and witness to have a discussion during trial or deposition testimony because, “once a deposition begins, the right to counsel is somewhat tempered by the underlying goal of our discovery rules: getting to the truth.”  Ngai, 13. 

The Court stated, “The goal of obtaining the facts of a case is defeated when the lawyer and not the witness is answering questions or influencing the answers to them.”  Ngai, 13. 

During a deposition if there is an “off-the record” discussion other than discussing the assertion of a privilege, the exchange is not privileged and “deposing attorney is [] entitled to inquire about the content thereof.”  Ngai, 13. 

passing notes in classThe Court stated the Pro Hac Vice attorney violated Federal Rule of Civil Procedure Rule 30 by texting during the deposition.  Ngai, 14.  The Court equated the conduct with passing notes to the client that included instructions “intended to influence the fact finding goal of the deposition process.” Ngai, 15.

The Court found no “it was on a break” defense for the text messages.  Ngai, 15-16.  A deposing attorney may question a deponent to determine if any witness coaching occurred.  Ngai, 16.  Additionally, Rule 30 only allows discussions pertaining to privileged issues.  Ngai, 16.  Finally, there was no evidence the text messages were actually sent during a break.  Ngai, 16.

Bow Tie Thoughts

If it had not been for the Pro Hac Vice attorney sending a text to the Plaintiff’s attorney, no one would have known of this impermissible (and ethically questionable for arguably witness coaching) conduct.  It will be a sad day for our system if deposing attorneys need to include a “no texting” provision to deposition admonitions.

Discovery is Not a Video Game: There are No Cheat Codes around Discovery Deadlines

iStock_000004542139XSmallHochstein v. Microsoft Corp., involves litigation over the Xbox video game system.  The Court issued an Order for discovery to close on October 31, 2008.  Hochstein v. Microsoft Corp., 2009 U.S. Dist. LEXIS 44879, 3 (E.D. Mich. May 21, 2009).  This obviously required production of any documents or ESI the parties intended to use at trial by the discovery cutoff date. 

Microsoft tried a “cheat code” around the discovery deadline by producing additional documents through the deposition of their expert witness and related reports.  Microsoft also produced over 140,000 marketing documents, two months before trial, without an index.  Hochstein, 4.

Federal Rule of Civil Procedure Rule 26 does not allow gamesmanship.  The Court cited a Court of Appeals decision, which stated:

This case aptly demonstrates the pitfalls of playing fast and loose with rules of discovery. Conclusory expert reports, eleventh hour disclosures, and attempts to proffer expert testimony without compliance with Rule 26 violate both the rules and principles of discovery, and the obligations lawyers have to the court. Exclusion and forfeiture are appropriate consequences to avoid repeated occurrences of such manipulation of the litigation process. Hochstein, 3-4, citing Innogenetics v. Abbot Laboratories, 512 F.3d 1363, 1376 n.4 (Fed. Cir. 2008).

The Court held admitting the late discovery production would be prejudicial to the Plaintiffs.  Pursuant to Federal Rule of Civil Procedure 37(c), the Court excluded the late production, specifically barring Microsoft from “introducing the late-produced discovery into evidence either directly or through their expert’s report or deposition.”  Hochstein, 5.  The expert’s report and deposition were to be redacted to remove any reference to the late produced discovery.  Id.

Microsoft also produced over 140,000 marketing documents to the Plaintiff, effectively two months before trial.  Hochstein, 9.  Adding insult to the 5 week late production, the Defendants did not produce an index with the 143,733 documents.  Hochstein, 9.

The Defendants were ordered to produce an index for the document production.  Additionally, Microsoft was barred from using the marketing documents against the Plaintiff or contesting admissibility.  Microsoft could use responsive documents in the event the Plaintiffs used marketing documents in their case-in-chief.  Hochstein, 9-10.

GirlGamer-GameOverGame Over

Federal Rule of Civil Procedure Rule 26 does not have a “cheat code” of “Up-Up-Down-Down-A-B-A-B.” 

Cases that go on for years with a soon approaching trial date will not have judges who willingly allow late productions that prejudice opposing parties.  Additionally, those producing discovery without an index are not fully using litigation support software or processing applications.

Measure for Measure: Sexting, District Attorneys and Restraining Orders

Parenting has never been easy.  Since cell phones starting having cameras, parents have had to talk to their teenage children about the dangers of “sexting.” For those who have never heard of this practice, it is taking photos of a sexual nature and sending them via text message.  There is no shortage of cases with youth under 18 being charged as sex offenders for this practice. 

The proper legal deterrent for “sexting” is the subject of debate.  Some people think charging 15 year olds as felony sex offenders is the appropriate deterrent, with serious ramifications on college selection, job applications and just moving for at least a decade.  Some take a “do nothing” approach.  Others are looking for a middle ground.  It is only a matter of time before state legislatures take this issue up to determine the appropriate legal deterrent for “sexting.” 

The case Miiller v. Skumanick, 2009 U.S. Dist. LEXIS 27275 (M.D. Pa. Mar. 30, 2009) is the story of a temporary restraining order being issued against a District Attorney from charging multiple teenage girls for felony child pornography from texting.  A preliminary injunction hearing is schedule for June 2, 2009.

Thoughts on being a District Attorney

To be fair to District Attorneys, I think the DA in this case is the exception and not the norm.   Being a DA has to be hard.  The job can be demanding and stressful in protecting communities from crime.  I remember a DA joking to us in law school that new all DA’s get a concealed weapons permit and a bullet proof vest. 

Many states have also adopted the Model Rules of Professional Conduct Rule 3.8 for prosecutors, which states in relevant part:

Rule 3.8 Special Responsibilities Of A Prosecutor

The prosecutor in a criminal case shall:

(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;

(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;

(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;

(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense…

Factual Overview: Threat of Prosecution from the District Attorney

The District Attorney in Miiller sent letters to the parents of 20-some students who had been identified in cell phone photos.  Three of the students (later Plaintiffs) had photos of themselves in bras and the other in a swim suit. 

The DA’s letter promised child pornography charges would be dropped against the youth if they completed a 6 to 9 month “re-education” program (which was reduced to 5 weeks) and drug testing.  Those who did not attend the “re-education” program and drug testing would be charged as sex offenders.  Miiller, 4. 

The District Attorney held a meeting at the Wyoming County Courthouse with everyone who received the letter.  This meeting consisted of a threat to prosecute the teenage girls in the photos unless they submitted to 1) probation, 2) paid a $100 program fee and 3) completed the “re-education” program. 

The “re-education” program was to instruct the girls on their inappropriate behavior and to “gain an understanding of what it means to be a girl in today’s society, both advantages and disadvantages,” and “identify non-traditional societal and job roles.” They were also required to write a paper on their actions and how they were wrong.  Miiller, 5-6. 

“These are the rules. If you don’t like them, too bad”

Parents understandably questioned the District Attorney on his methods.  One of the girls at issue had photos of herself in a bathing suit.  When questioned by the father how swim suit photos were child pornography, the DA explained the youth had posed “provocatively.”  When questioned on who decided what was “provocative” the DA told the father, “[T]hese are the rules. If you don’t like them, too bad.”  Miiller, 5.  The District Attorney also told the questioning parents he could charge their children with child pornography during the meeting, as obvious leverage for the parents and youth to consent to the “re-education” program.  Id.

When the parents of the other Plaintiff challenged the District Attorney’s child pornography definition, the DA claimed the youth had no right to a jury trial in Juvenile Court, even with felony child pornography charges. 

The Civil Lawsuit (Or, this is the US Constitution, if you don’t like it, too bad)

The parents of the three Plaintiffs did not give in to the District Attorney’s threatened prosecution of their children.  The Plaintiffs brought a 1983 action base on 1) retaliation in violation of plaintiffs’ First Amendment right to free expression, because the photographs did not violate any obscenity law; 2) retaliation in violation of plaintiffs’ First Amendment right to be free from compelled expression, specifically having to write a paper about their actions; 3) retaliation against the parents for exercising their Fourteenth Amendment substantive due process right as parents to direct their children’s upbringing, as evidenced by the “re-education” program material.  Miiller, 10-11. 

The Temporary Restraining Order

A temporary restraining order is an “extraordinary remedy” that requires a Court to evaluate: 

(1) Whether the moving party has shown a reasonable probability of success on the merits;

(2) Whether the moving party will be irreparably injured by denial of the relief;

(3) Whether granting preliminary relief will result in even greater harm to the nonmoving party; and

(4) Whether granting the preliminary relief will be in the public interest. Miller, 13, citing Crissman v. Dover Downs Entertainment Inc., 239 F.3d 357, 364 (3d Cir.2001).

The Plaintiffs met all of the requirements for a retraining order against the District Attorney.  Moreover, the Court outlined the state law definition of “prohibited sexual act,” which did not include “provocative” poses.  Miiller, 25-26.  One can wonder if the District Attorney over-stepped his ethical duties as a prosecutor, if he was threatening prosecution not supported by probable cause, let alone advising the accused youth of their right to counsel. 

In reviewing the sub-requirement that the Plaintiffs’ Constitutionally protected activity caused the retaliation, the Court noted that the District Attorney’s threat to charge the youth with felony child pornography was “not a genuine attempt to enforce the law, but instead an attempt to force the minor plaintiffs to participate in the education program.” Additionally, the continued threat of prosecution for not participating in the “re-education program” indicated that the charges were “retaliation for their refusal to engage in compelled speech.”  Miller, 24-25.

What is the Appropriate Deterrent?

The actions of the District Attorney in Miiller were extreme.  It will be interesting to see if the preliminary injunction is granted on the June 2, 2009 hearing.  Judging by the tone of the Court Order, I would think so. 

Cases such as Miiller may prompt state legislatures to determine the appropriate punishment for a teenager sending or receiving sexually suggestive photos from other teenagers.  Some states may find the current child pornography laws are sufficient, because the threat of having to register as a sex offender is a high deterrent.  Other states may try finding a lessor punishment. 

In the meantime, parents should have very frank discussions with their children about responsibility and consequences.