Discovery Ethics Course Plan

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1 The Ethics of Pre-Trial Discovery Discovery Ethics Course Plan I. Pre-Trial Discovery II. General Ethical Rules and Personal Mores Governing Discovery III. Ethical Considerations for Obtaining Informal Discovery Through Social Media IV. Document Retention and Destruction Policies in the Course of Litigation Modern Ethical Training, LLC 2 I. Pre-Trial Discovery 1

2 Discovery Can Begin Before the Filing of a Lawsuit In fact, the rules governing the ethics of lawyers sometimes require that discovery begin before a law suit is filed. Modern Ethical Training, LLC 4 Case Study: Solar Panel Litigation Your client Beatrice of the New Hampshire based company, Beatrice Engineering Biomaterials (BEB), wants you to file a lawsuit against Ariel, an ex-employee engineer who started her own company in Arizona. Your client insists that Ariel must be stealing our trade secrets and infringing our patents. Ariel spent 10 years at BEB developing PolysiliconX, BEB s main product which enhances the efficiency of solar panels, estimated to be a $155 billion global market in Beatrice has no direct evidence of this but she insists it must be the case as there is no other conceivable way Ariel could attract investment and she was behaving very oddly in their last months at BEB with lots of secret conversations on her cell phone. She wants you to file the suit immediately. Do you file the lawsuit? Does it matter that Beatrice cannot offer any proof about her allegations or that Ariel has not made public what her company would be doing? Modern Ethical Training, LLC 5 Federal Rules of Civil Procedure Rule 11 By presenting to the court a pleading, written motion, or other.an attorney certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information. Modern Ethical Training, LLC 6 2

3 Pre-Lawsuit Options ü 11(3) Allows lawyers to look for evidentiary fishing expedition. However, there must be some reasonable basis for belief. Not clear here you can even begin a suit and start fishing. ü Find out more information about Ariel s company before filing. ü Interview employees at BEB. ü Find out about Ariel s potential clients. ü Hire an investigator. ü Send Ariel a reminder of her confidentiality agreement with BEB. Modern Ethical Training, LLC 7 II. General Ethical Rules and Personal Mores Governing Discovery Discovery: Law in the Trenches The primary source of fact development in a lawsuit. Governed by jurisdictions rules of civil procedure. Includes oral depositions, document requests, written interrogatories. Litigators discover from each other and third parties facts relevant to the lawsuit. Litigators conduct discovery amongst themselves but often have to go to court to resolve disputes over whether a document is relevant or should be produced. Modern Ethical Training, LLC 9 3

4 Case Study: Solar Panels Part 2 Olivia represents Ariel in the action brought by BEB for trade secret misappropriation and patent infringement. Ariel denies the claims and counterclaims that BEB breached Ariel s employment agreement by systematically and fraudulently underpaying agreed-to bonuses on sales of the PolisiliconX solar panel product. During discovery Olivia receives a request from BEB s counsel Rosalind for any all communications between Ariel and BEB clients prior to leaving BEB regarding her plans to leave BEB. Olivia serves Rosalind with a request for any and all documents and communications at BEB concerning sales of PolisiliconX and employee compensation related thereto. How should Olivia and Rosalind respond to their respective discovery requests? What documents should they produce? What factors should the lawyers take into account in making and responding to discovery requests? Modern Ethical Training, LLC 10 Model Rules of Professional Conduct: Rule 3.4 Fairness To Opposing Party And Counsel A lawyer shall not: (a) unlawfully obstruct another party' s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. (d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party (e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence Modern Ethical Training, LLC 11 Discovery Mores: Examples of Legal Considerations What are relevant documents? Are communications privileged? Are communications confidential? Modern Ethical Training, LLC 12 4

5 Discovery Mores: Personal Considerations Situational? Relationship to the case? Believe in the case? Complex relationship to case. Personal Style? The way certain lawyers do things. Object to everything? Give everything? Whom did lawyer train with? How large is the amount of documents expensive to produce or better to dump all and make them look through? Modern Ethical Training, LLC 13 III. Ethical Considerations for Obtaining Informal Discovery Through Social Media Informal Discovery Often the best way to get information is not to communicate through lawyers, but to obtain informal discovery. Potential for informal discovery magnified by social media Facebook, Twitter, LinkedIn, YouTube etc. Modern Ethical Training, LLC 15 5

6 Informal Discovery Often done by private investigators and other representatives of lawyer attempting to obtain information. Modern Ethical Training, LLC 16 Case Study: Using Social Media for Discovery Beatrice informs her lawyer Rosalind that Ariel s friend Mary has a very active Facebook page. She is a chatty one, Beatrice says, and I m certain she must have made some comments on the site that will help our case. Rosalind responds that she will have to do some legal research see if Facebook records are discoverable. No problem, says Nell the paralegal who is taking notes at the meeting, I ll just create a Facebook account and friend her. Can you tell me what some of Mary s interests are? Where did she go to college? Should Rosalind take Nell up on her offer? Modern Ethical Training, LLC 17 Association of the Bar of the City of New York Committee on Professional Ethics Formal Opinion Obtaining Evidence from Social Networking Websites Despite the common sense admonition not to open the door to strangers, social networking users often do just that with a click of the mouse. Rather than engage in trickery, lawyers can -- and should -- seek information maintained on social networking sites, such as Facebook, by availing themselves of informal discovery, such as the truthful friending of unrepresented parties, or by using formal discovery devices such as subpoenas directed to non-parties in possession of information maintained on an individual s social networking page. Given the availability of these legitimate discovery methods, there is and can be no justification for permitting the use of deception to obtain the information from a witness on-line. An attorney or her agent may use her real name and profile to send a Friend Request to obtain information from an unrepresented person s social networking website without also disclosing the reasons for making the request. Modern Ethical Training, LLC 18 6

7 MODEL RULES OF PROFESSIONAL CONDUCT Maintaining The Integrity Of The Profession Rule 8.4 Misconduct It is professional misconduct for a lawyer to.(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation. Transactions With Persons Other Than Clients Rule 4.1 Truthfulness In Statements To Others In the course of representing a client a lawyer shall not knowingly (a) make a false statement of material fact or law to a third person. Law Firms And Associations Rule 5.3 Responsibilities Regarding Nonlawyer Assistance (b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer. Modern Ethical Training, LLC 19 IV. Document Retention and Destruction Policies in the Course of Litigation Document Retention and Destruction Policies in the Ordinary Course of Business Most companies have a document retention policy that governs how long documents should be preserved and when it is appropriate to destroy them. However, when litigation commences or is anticipated documents that ordinarily would be destroyed should be preserved if it may be relevant to legal proceedings. Modern Ethical Training, LLC 21 7

8 18 U.S.C. 1512: Potential Criminal Liability for Lawyers 18 U.S.C (b) imposes criminal liability on anyone who corruptly persuades or cause[s] or induce[s] another person to alter, destroy, mutilate or conceal an object with intent to impair the object s integrity or availability for use in an official proceeding. 18 U.S.C (f) Proceeding need not be pending or about to be instituted. Reasonable cause to believe it may be about to commence is enough to trigger obligation to preserve documents. Modern Ethical Training, LLC 22 Arthur Andersen LLP v U. S. (2005) August 14, Skilling resigns. August 29. WSJ article reports SEC opened investigation against Enron. October 10 November 7. Andersen Supervising Partners Odom and Duncan and inside counsel Temple repeatedly urge employees to comply with firm s document retention policy and shred. November 8. SEC serves Enron and Andersen. November 9. Dave Duncan s Secretary sends out an Per Dave No more shredding we have been officially served for our documents. Supreme Court reversed based on failure to give correct scienter charge to jury. Modern Ethical Training, LLC 23 Common Law Doctrine of Spoliation Three Elements for Spoliation: (1) Party having control over the evidence has obligation to preserve at time it was destroyed; (2) The records were destroyed with a culpable state of mind (3) Destroyed evidence relevant to proceeding Modern Ethical Training, LLC 24 8

9 Zubulake v. UBS Warburg (SDNY 2004) In sum, counsel has a duty to effectively communicate to her client its discovery obligations so that all relevant information is discovered, retained, and produced. In particular, once the duty to preserve attaches, counsel must identify sources of discoverable information. This will usually entail speaking directly with key players in the litigation, as well as the client s information technology personnel. In addition when the duty to preserve attaches, counsel must put in place a litigation hold and make that known to all relevant employees by communicating with them directly. The litigation hold instructions must be reiterated regularly and compliance must be monitored. Counsel must also call for employees to produce copies of relevant electronic evidence, and must arrange for the segregation and safeguarding of any archival media (e.g. backup tapes) that the Modern party Ethical has Training, a LLC duty to preserve. 25 9

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