5. Judging Professional Competence and Conduct
a. Due Diligence by Attorney
i. United States v. Two Bank Accounts courts did not show leniency to pro se party for discovery.
b. Searching for Evidence
i. FRCP 26(a)(1) must provide description by category or location of all ESI within possession and control that can support claim.
1. FRCP 26(b)(2) can withhold ESI if no longer reasonably
accessible because of undue burden or cost.
ii. Zubulake – must continue diligent search throughout case – ongoing regular steps.
i. FRCP 26(g) after reasonable inquiry:
1. Disclosure complete and correct when made.
2. Discovery request, response or obj.
i. Nonfrivolous argument
ii. Not for any improper purpose
3. Increase cost
iii. Not unreasonable or burdensome considering
1. Needs of case
2. Prior discovery
3. Amount in controversy
4. Importance of issues
i. Limit scope if duplicative
ii. Award expenses to opponent
iii. If discovery order not obeyed under FRCP 37(b)(2)(A):
1. Facts est. as proven
2. Can’t support or oppose certain claims or defenses or
introduce matters into evidence.
3. Strike claims or defenses.
4. Delay proceedings until order obeyed.
5. Dismiss action
6. Default judgment
8. Pay expenses, including attorney fees
iv. Failure to disclose new information as required by FRCP 26.
v. Failure to provide ESI as result of routine, good faith operation of electronic system – FRCP 37(e) sanctions not imposed.
vi. Failure to do Meet & Confer – FRCP 37(f) can impose sanction for the assessment of costs.
e. In re Seroquel Products Liability Litigation, the court held that a party is responsible for the errors of its vendors.
f. Inherent Power Sanctions
i. Simple negligence =didn’t take reasonable steps to preserve ESI.
ii. Reckless conduct
iii. Bad Faith
g.Coleman Holdings v. Morgan Stanley – burden of proof was shifted on to MS on fraud issue when they failed to disclose the thousands of backup tapes were not searched; jury awarded $850 punitive damagers.
h.Nursing Home Pension Fund v. Oracle – Oracle CEO willfully destroyed emails and other evidence; jury instructed to infer that the evidence was unfavorable
i. Qualcomm Inc. v. Broadcom
i. Attorneys learned of 21 relevant emails but did not produce.
ii. Qualcomm tried to blame outside counsel, but court noted it had ability to do discovery in-house.
iii. Ct. orders $8.5M sanction in excess of legal fees, and referred lawyers to Bar for disciplinary action.
j. Model Rule 1.1 lawyer must provide competent representation
i. Must be knowledgeable of e-discovery issues or bring someone in who is.
k.Model Rule 3.4 can’t obstruct access or alter, destroy, or conceal from duty to preserve throughout process
i. Bratka v. Anheuser-Busch lawyer must oversee employees to ensure compliance.
l. The Model Rules do not address whether your attorney can use privileged evidence accidentally received from the other side in court. State rules are split on how to handle it.
m. The New York County Lawyers Association has a formal opinion (No. 730) that a lawyer refrain from reviewing inadvertently disclosed information that is subject to privilege or protection.
n.ABA Formal Opinion 06-442 using embedded data in ESI is not unethical for an attorney. Disclosing attorney must scrub metadata or have entered into c/b agreement.
o.NY Ethics Comm. Opinion 749 attys should not use technology to examine and trace email and other ESI
p.18 U.S.C. 1503 destroying ESI in criminal matter can be an obstruction of justice.