Bankruptcy, Electronically Stored Information, and an Attorney s Ethical Obligations: Practical Pointers for your Practice.

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1 Bankruptcy, Electronically Stored Information, and an Attorney s Ethical Obligations: Practical Pointers for your Practice. Michael D. Fielding 1 Husch Blackwell Sanders LLP Main Street, Suite 1000 Kansas City, Missouri (816) Ph. (816) Fx. Introduction 3 1) Overview a) Presentation Outline: i) Part I Key ethical issues relating to Parts II and III ii) Part II Points and considerations for protecting the attorney-client privilege in the context of electronically stored information (ESI) and bankruptcy iii) Part III Points and considerations for preservation, disclosure, and review of ESI in a bankruptcy setting. b) Disclaimers: i) The views expressed herein are solely those of the author and do not necessarily represent the opinions or belief of Blackwell Sanders, LLP. ii) This document is a work in progress. The author strongly encourages and welcomes any suggestions and/or critiques that you may have regarding the materials or the presentation. 1 Mr. Fielding is an attorney in the Bankruptcy, Restructuring and Creditors Rights practice group of Blackwell Sanders, LLP. 2 As of the due date for these materials, Blackwell Sanders, LLP and Husch & Eppenberger, LLC have announced their intent to merge effective February 1, The firm s new name will be Husch Blackwell Sanders LLP. 3 This outline (which has been slightly modified) was originally presented by the author at the 27 th Annual Midwestern Bankruptcy Institute in Overland Park, Kansas. The author subsequently converted Parts I and II into the following article: Practical Pointers for Your Practice: Bankruptcy, ESI and the Attorney-Client Privilege, American Bankruptcy Institute Journal, Vol. XXVI, No. 10, December/January # v1 KC

2 Part I Key Ethics Rules and ABA Ethics Opinions 2) Ethical obligations a) Rule 1.1: Competence i) A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. b) Rule 1.4(b): Communication i) (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. (1) Questions: (a) Are you capable of explaining to your client the risks associated with and the attorney-client privilege? (b) Do you understand how these risks are amplified in a bankruptcy context? (2) Examples of communicating the risks of to client: Go to or click on any attorney, then click on their link. A window pops up which explains the risks of communication. c) Rule 1.6(a): Confidentiality of Information i) (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by Rule 4-1.6(b). (1) Question: (a) Rule 1.6 establishes the duty of confidentiality. What steps are you taking to preserve the confidentiality of your client s ESI? d) Rule 4.4(b): Respect for Rights of Third Persons i) A lawyer who receives a document relating to the representation of the lawyer's client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender. (1) There is no requirement to refrain from looking at inadvertently produced documents. (2) There is no requirement to sequester the materials pending a judicial determination of privilege. ii) But note the following: (1) Fed. R. Civ. P. 26(b)(5)(B): If information is produced in discovery that is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved. A receiving party may promptly present the information to the court under seal for a determination KC

3 of the claim. If the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it. The producing party must preserve the information until the claim is resolved. (emphasis added). (2) Fed. R. Bankr. P provides that Fed. R. Civ. P. 26 applies in adversary proceedings. (3) Fed. R. Civ. P. 26(b)(5)(B) also applies to contested matters. Fed. R. Bankr. P. 9014(c). iii) Key points to consider: (1) Rule 4.4(b) now allows a party to review privileged material and even provide it his/her client. See discussion of ABA Opinion (2) Rule 26(b)(5)(B) only requires a party to return, sequester or destroy the privileged information after notification from the disclosing party. (a) Duty of Notification: Once a party knows or reasonably knows a document was inadvertently produced it has an obligation to promptly notify the send. (b) Thus if a party knows it has received a privileged document but has not received notification, the party can review the document until such notification. (c) The obligation to refrain only arises after being notified by the sender. (d) But my advice is to take the high-road and immediately inform the other party of the inadvertent production and then refrain from further reviewing the contents of the document. (3) Once notification is received, the party must retrieve any such document from the client (a) The problem is that the information cannot be erased from either your mind or the client s mind. (b) The practical solution is to not send it to the client if you believe there is a reasonable likelihood that the document must be returned. e) Rule 5.1: Responsibilities of Partners, Managers, and Supervisory Lawyers i) Supervising attorney has obligation to ensure that subordinates actions are in conformity with rules of professional conduct ii) Supervising lawyer can be liable for actions of subordinate lawyer if supervising lawyer (a) knows of and ratifies the conduct or (b) knows of the conduct when the consequences can be mitigated but fails to do so. iii) Questions: (1) Has your firm implemented safeguards to protect against disclosure of privileged communications? (2) Is your intake procedure sufficient to fully learn of the Debtor s ESI? f) Rule 5.2: Responsibilities of a Subordinate Lawyer i) Subordinate lawyer is bound by the rules of professional conduct. g) Rule 5.3: Responsibilities Regarding Nonlawyer Assistants i) Firms must make reasonable efforts to ensure that the conduct of nonlawyers employed or retained by the law firm is compatible with the attorneys professional obligations. KC

4 ii) Lawyer will be responsible for non-lawyer s actions if lawyer (a) orders conduct, (b) ratifies the conduct with knowledge of it or (c) knows of the conduct but fails to take reasonable action to mitigate the matter. iii) Questions: (1) Have you adequately instructed your staff about the risks associated with ESI and the attorney-client privilege? (2) Do you know what privileged material your staff is producing to other parties? (3) Does your staff know how to properly determine whether the Debtor has disclosed its ESI? 3) Summaries of Selected ABA Ethics Opinions a) , March 10, 1999, Protecting the Confidentiality of Unencrypted i) A lawyer may transmit information relating to the representation of a client by unencrypted sent over the Internet without violating the Model Rules of Professional Conduct (1998) because the mode of transmission affords a reasonable expectation of privacy from a technological and legal standpoint. The same privacy accorded U.S. and commercial mail, land-line telephonic transmissions, and facsimiles applies to Internet . A lawyer should consult with the client and follow her instructions, however, as to the mode of transmitting highly sensitive information relating to the client s representation. ii) Succinct summary: (1) Its ethically okay to use unencrypted , but (2) You need to consult with the client regarding the mode of transmission of highly sensitive information iii) Comments and questions (1) This opinion assumes that unencrypted has a reasonable expectation of privacy. (a) How valid is that assumption as insolvency approaches and/or a bankruptcy is filed particularly if it is a Chapter 7. (b) How reasonable is it to expect ESI will remain confidential as an entity heads into bankruptcy? (2) Most attorneys simply focus on the first part of this summary. Attorneys often forget the second part which requires consultation with the client on highly sensitive information. (3) How do attorneys communicate with their clients? (a) Via ? (b) Via at the client s home? (i) What are the exposures here? (c) Via at the client s work? (i) What are the exposures here? (ii) Is there a company policy that allows review of ? (iii)are you jeopardizing your client by not advising them as to how you should communicate? KC

5 b) , October 1, 2005, Inadvertent Disclosure of Confidential Materials: Withdrawal of Formal Opinion (withdrawing ) i) A lawyer who receives a document from opposing parties or their lawyers and knows or reasonably should know that the document was inadvertently sent should promptly notify the sender in order to permit the sender to take protective measures. To the extent that Formal Opinion opined otherwise, it is hereby withdrawn. ii) Comments and questions (1) This rule arguably signals how inadvertent disclosures will be ethically dealt with in the future. Because of the potential financial impact such inadvertent disclosures may have in a case, it is imperative that counsel learn and employ adequate safeguards when reviewing and producing ESI. c) , August 5, 2006, Review and Use of Metadata i) Opinion concludes that it is appropriate for an attorney to review and use metadata. d) , May 13, 2006, Unsolicited Receipt of Privileged or Confidential Materials: Withdrawal of Formal Opinion i) See discussion under Rule Part II Practical Pointers for Protecting the Privilege 4) General Rules Regarding the Attorney-Client Privilege 4 a) Elements of the privilege i) The attorney-client privilege applies to (1) communications (2) made in confidence (3) by the client (4) in the course of seeking legal advice (5) from a lawyer in his capacity as such, and [it] applies only (6) when invoked by the client and (7) not waived. 5 (1) Federal common law of attorney-client privilege has a subjective and objective component: the communication must be given in confidence, and the client must reasonably understand it to be so given. 6 ii) A document is not rendered privileged simply because it is sent to an attorney. 7 4 For a general discussion of bankruptcy, the attorney-client privilege and ESI see Michael D. Fielding and Jack Seward, You Need to Know This: Bankruptcy and Attorney - Client Privilege in the Electronic Age, American Bankruptcy Institute Journal, Vol. XXV, No. 10 December/January Additional resources include: Heather Brown Wolesky, To Preserve and Protect: A Nuts-and-Bolts Approach to Attorney-Client Privilege and Work- Product Immunity in Kansas Federal Court, Journal of the Kansas Bar Association (July/August 2005); Paul C. Curnin and Jonathan D. Cogan, Federal Attorney-Client Privilege and Work Product Doctrine, 706 PLI/Lit 27 (2004); Alexander C. Black, What Corporate Communications are Entitled to Attorney-client Privilege Modern Cases, 27 A.L.R. 5 th 76; Thomas M. Geisler, Proof of Waiver of Attorney-Client Privilege, 32 AmJur Proof of Facts 3d Meoli v. American Medical Service of San Diego, 287 B.R. 808, 813 (S.D. Cal. 2003) (citing United States v. Abrahams, 905 F.2d 1276, 1283 (9 th Cir. 1990)); see also Heather Brown Wolesky, To Preserve and Protect: A Nuts-and-Bolts Approach to Attorney-Client Privilege and Work-Product Immunity in Kansas Federal Court, Journal of the Kansas Bar Association 74-Aug JKSBA 32, p. 32 (July/August 2005) 6 In re Asia Global Crossing, Ltd., 322 B.R. 247 (Bankr. S.D. N.Y. 2005). 7 Urban Box Office Network, Inc. v. Interfase Managers, LP, 2006 WL , *5 (S.D.N.Y.) KC

6 iii) Where a communication between client and attorney does not reveal any confidential matters, the communication is not privileged. 8 iv) Attorney-client privilege is determined on a document-by-document basis; a blanket claim of privilege is insufficient. 9 v) The attorney-client privilege belongs to the client and only the client can waive it. 10 b) Waiver of the attorney-client privilege i) The attorney-client privilege may be waived either expressly or impliedly through a party s conduct. 11 ii) An implied waiver occurs when a party claiming the privilege voluntarily disclosed confidential information on a given subject matter to a party not covered by the privilege. 12 iii) The privilege will be deemed waived where privileged information (such as s) is intentionally forwarded to a third party. 13 iv) Examples: (1) Privilege deemed not waived where plaintiff communicated with her attorney using her fiancé s laptop computer and where fiancé (per plaintiff s request) kept communications confidential such that fiancé did not know substance of communications. 14 (2) Privilege not waived where privileged was received by principal s secretary. 15 c) Clawback or quick peek agreements i) See generally Fed. R. Civ. P. 26(f)(4) and 2006 Committee Notes ii) Both parties agree to simply turn over documents and if privileged material is disclosed the agreement provides that it will not be reviewed. iii) Risk is that once turned over, a third party could claim privilege has been waived. d) Waiver of the attorney-client privilege due to an inadvertent disclosure i) Three tests have evolved for determining whether a waiver occurred as a result of an inadvertent disclosure. 16 (1) Lenient approach: The privilege can only be waived by the client s intentional and knowing relinquishment and it provides little incentive for lawyers to maintain tight control over privileged material. 17 (2) Strict Test: A disclosed document loses the privilege if it is produced Id at *2. 9 United States v. White, 970 F.2d 328, 334 (7 th Cir. 1992). 10 In re Asia Global Crossing, Ltd., 322 B.R. 247, 255 (Bankr. S.D.N.Y. 2005) 11 In re Keeper of the Records, 348 F.3d 16, 22 (1 st Cir. 2003); see also Hanson v. United States Agency for Int l Development, 372 F.3d 286, (4 th Cir. 2004). 12 Hanson, 372 F.3d at In re Asia Global Crossing, Ltd., 322 B.R. 247, (Bankr. S.D.N.Y. 2005) 14 Geer v. Gilman Corp., 2007 WL (D.Conn. 2007). 15 In re Adelphia Communications Corp., 2005 W , *8 (S.D.N.Y.) 16 Gray v. Bicknell, 86 F.3d 1472, (8 th Cir. 1996) 17 Id. at Id.; see also In re Sealed Case, 877 F.2d 976, 980 (D.C. Cir. 1989). KC

7 (a) This results not only in a waiver of the document itself but also to other communications that relate to the document s subject matter. 19 (3) Middle-of-the-road approach considers five factors: (1) the reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of document production, (2) the number of inadvertent disclosures, (3) the extent of the disclosures, (4) the promptness of measures taken to rectify the disclosure, and (5) whether the overriding interest of justice would be served by relieving the party of its error. 20 (a) A waiver of the privilege under this standard may apply just to the disclosed document or to other related but undisclosed documents. 21 ii) Succinctly stated, when waiver occurs as a result of inadvertent document disclosure, courts have limited the scope of that waiver based on the circumstances involved and overall fairness. 22 (1) Courts often find that inadvertently disclosed material does not result in waiver. 23 e) How much can be obtained once the attorney-client privilege has been waived? 24 i) Once a waiver has occurred, it will extend not only to the communication already disclosed but also to other communications/documents relating to the same subject matter. 25 ii) Where a party asserts a defense of reliance upon advice of counsel, those communications are put in issue and the privilege is likely waived as to all such communications. 26 f) Attorney-client privilege and bankruptcy i) Individuals (1) Federal rules apply in determining whether a trustee may waive the attorneyclient privilege of an individual debtor. 27 (2) Courts are split on whether a trustee may waive an individual debtor s attorneyclient privilege Gray v. Bicknell, 86 F.3d 1472, 1483 (8 th Cir. 1996). 20 Id. at 1484; see also Atronic Int l, GMBH v. SAI Semispecialists of America, Inc., 232 F.R.D. 160 (E.D.N.Y. 2005) (applying multi--part test to inadvertently disclosed s). 21 Gray v. Bicknell, 86 F.3d 1472, 1484 (8 th Cir. 1996); see also Atronic Int l, GMBH v. SAI Semispecialists of America, Inc., 232 F.R.D. 160 (E.D.N.Y. 2005). 22 In re Grand Jury Proceedings, 219 F.3d 175, 183 (2 nd Cir. 2000). 23 See e.g., Marrero Hernandez v. Esso Standard Oil Co., 2006 WL (D.P.R. 2006); Premiere Digital Access, Inc. v. Central Telephone Co., 360 F.Supp.2d 1168 (D.Nev. 2005). 24 See generally Jennifer A. Hardgrove, Scope of Waiver of Attorney-Client Privilege: Articulating a Standard that Will Afford Guidance to Courts, 1998 U. Ill. L. Rev. 643 (1998). 25 United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982); In re Sealed Case, 676 F.2d 793, 809 (D.C. Cir. 1982); United States v. Cote, 456 F.2d 142, 145 (8th Cir. 1972); Heartland Surgical Specialty Hospital v. Midwest Division, Inc., 2007 WL , *4 (D. Kan. 2007); IMC Chemicals, Inc. v. Niro, Inc., 2000 WL , *16 (D. Kan. July 19, 2000); see also Jennifer A. Hardgrove, Scope of Waiver of Attorney-Client Privilege: Articulating a Standard that Will Afford Guidance to Courts, 1998 U. Ill. L. Rev. 643, 663 (1998). 26 Miller v. Pharmacia Corp., 2006 WL (E.D.Mo. 2006); Bancorp Services, L.L.C. v. Sun Life Assurance Company of Canada, 2006 WL (E.D.Mo. 2006); Kansas Food Packers v. Corpak, 2000 WL , *2 (D.Kan. Oct. 12, 2000). 27 See e.g., In re Foster, 188 F.3d 1259, 1264 (10 th Cir. 1999); In re Rice, 224 B.R. 464, 469 (Bankr. D. Or. 1998). KC

8 (a) Extreme right: the privilege always passes to the Trustee 29 (b) Large majority rule: Balancing test passage of privilege depends upon benefit to the estate versus potential harm to the debtor (e.g., criminal prosecution or direct adversary relationship with the Trustee). (i) Balancing test applied and privilege deemed to pass to Trustee 30 (ii) Balancing test applied but court needed additional information 31 (iii)balancing test applied and privilege did not pass to Trustee 32 (c) Extreme left: the privilege never passes to the Trustee 33 (3) There is no privilege in information provided by a Debtor to his/her counsel where that information is intended to be included in the bankruptcy schedules. 34 ii) Corporate entities (1) Federal law governs determination of attorney-client privilege. 35 (2) When the client is a solvent corporation, the agent that controls the corporate attorney-client privilege is the corporation s management. 36 (3) Likewise in bankruptcy, the privilege is controlled by the entity that most closely resembles its management. 37 (4) Whenever management changes, the new managers may waive the corporate attorney-client privilege with respect to communications made by the previous management. 38 (5) Under this principle, a bankruptcy trustee may waive the attorney-client privilege with respect to a corporate debtor s pre-bankruptcy communications. 39 iii) Unsecured Creditors Committee (1) Despite BAPCPA s new requirements regarding Committee disclosure of information, 40 Committee need not disclose information where disclosure would result in a waiver of the attorney-client or any other applicable privilege. 41 g) Privilege logs 28 For a general discussion of the topic consider the following secondary resources: J.J. Director, Power of trustee in Bankruptcy to waive privilege of communications available to bankrupt, 31 A.L.R.3d 557; Applicability of attorney-client or accountant-client privilege Waiver of debtor s privilege by trustee or other successor in interest, 9A Am. Jur. 2d Bankruptcy 1614; Bankr. Evid. Manual (2007 ed.); Irving D. Labovitz and William J. Labovitz, Attorney-Client Privilege in Individual Bankruptcy Cases An Emergin Oxymoron? Commercial Law Journal (Fall 1999). 29 In re Smith, 24 B.R. 3 (Bankr. S.D. Fla. 1982) 30 In re Courtney, 372 B.R. 519 (Bankr. M.D. Fla. 2007); In re Bazemore, 216 B.R (Bankr. S.D. Ga. 1998); In re Williams, 152 B.R. 123 (Bankr. N.D. Tex. 1992) 31 In re Foster, 188 F.3d 1259 (10 th Cir. 1999); In re Bame, 251 B.R. 367 (Bankr. D.Minn. 2000). 32 In re Miller, 247 B.R. 704(Bankr. N.D. Ohio 2000); In re Rice, 224 B.R. 464 (Bankr. D. Or. 1998) 33 McClarty v. Gudenau, 166 B.R. 101 (Bankr. E.D. Mich. 1994); In re Hunt, 153 B.R. 445 (Bankr. N.D. Tex. 1992); In re Silvio, 27 B.R. 28 (Bankr. S.D. Fla. 1982) 34 United States v. White, 970 F.2d 328, 334 (7 th Cir. 1992) 35 In re Enron Corp., 349 B.R. 115, 126 (Bankr. S.D.N.Y. 2006). 36 Commodity Futures Trading Commission v. Weintraub, 471 U.S. 343, 356 (1985). 37 Commodity Futures Trading Commission v. Weintraub, 471 U.S. 343, (1985). 38 See e.g., Id. at 349; In re Grand Jury Subpoena, 274 F.3d 563, 571 (1 st Cir. 2001); Medcom Holding Co. v. Baxter Travenol Laboratories, Inc., 689 F.Supp. 841 (N.D. Ill. 1988). 39 Commodity Futures Trading Commission v. Weintraub, 471 U.S. 343, 358 (1985) U.S.C. 1102(b)(3) 41 In re Fefco Inc., 336 B.R. 187, (Bankr. S.D.N.Y. 2006). KC

9 i) It is well-settled that a party who withholds materials without a timely and adequate privilege log may waive the attorney-client privilege and/or work-product immunity. 42 ii) Privilege log contents 43 (1) Document date (2) Document bates numbers (3) Document type (e.g., , fax, letter, notes, etc.) (4) Author(s) (5) Recipient(s) (6) Privilege asserted and basis for privilege iii) Privilege logs should be timely completed regardless whether the production is large or small. iv) In an strand, each must be listed separately for privilege log purposes. 44 5) ESI & Risks 45 a) Failing to differentiate your client (i.e., the corporation or LLC) from the company s principals (or vice versa) i) Directors or officers of a corporation cannot invoke the attorney-client privilege to protect disclosure of their personal communications with corporate counsel when those communications concern the corporation. 46 (1) Five-part test to determine whether a corporate manager has a personal attorneyclient privilege with corporate counsel: (a) the manager must approach counsel seeking legal advice; (b) the manager must have made it clear that he/she was seeking advice in their individual capacity; (c) corporate counsel communicated with them in their individual capacity knowing that a conflict might arise; (d) the communications were confidential; and (e) their communications do not concern company affairs. 47 ii) The privilege will be deemed waived where privileged communications between a corporation s principals and the principals personal attorney are shared with the corporation s attorney Heather Brown Wolesky, To Preserve and Protect: A Nuts-and-Bolts Approach to Attorney-Client Privilege and Work-Product Immunity in Kansas Federal Court, Journal of the Kansas Bar Association 74-Aug JKSBA 32, p. 34 (July/August 2005) (referencing 8 Charles Alan Wright, FEDERAL PRACTICE AND PROCEDURE , at (2d ed. 1994). 43 For an even more exhaustive list of privilege log requirements, see Heavin v. Owens-Corning Fiberglass, 2004 WL , *7-8 (D. Kan. 2004) 44 In re Universal Service Fund Telephone Billing Practices Litigation, 232 F.R.D. 669 (D. Kan. 2005) 45 For a general discussion of bankruptcy, the attorney-client privilege and ESI see Michael D. Fielding and Jack Seward, You Need to Know This: Bankruptcy and Attorney - Client Privilege in the Electronic Age, American Bankruptcy Institute Journal, Vol. XXV, No. 10 December/January See e.g., In re Grand Jury Subpoena, 274 F.3d 563, 573 (1 st Cir. 2001); In re Bevill, Bresler & Schulman Asset Management Corp., 805 F.2d 120, 125 (3d Cir. 1986). 47 In re Grand Jury Subpoena, 274 F.3d 563, 571 (1 st Cir. 2001). 48 In re Asia Global Crossing, Ltd., 322 B.R. 247, (Bankr. S.D.N.Y. 2005) KC

10 iii) Questions (1) In representing closely held companies, have you clearly distinguished who is your client? (2) Do the principals of the closely held companies know that you do not represent them? b) Workplace communications i) Succinct test: Does the employee know his/her s are monitored by the company? ii) Privacy expectations? (1) An employee's expectation of privacy in his office, desk and files may be reduced by virtue of actual office practices and procedures, or by legitimate regulation. In light of the variety of work environments, whether the employee has a reasonable expectation of privacy must be decided on a case-by-case basis. 49 (2) Factors that courts have considered in measuring an employee s expectation of privacy in his/her computer files and 50 (a) Does the corporation maintain a policy banning personal or other objectionable use? (b) Does the company monitor the use of the employee's computer or ? (c) Do third parties have a right of access to the computer or s? (d) Did the corporation notify the employee, or was the employee aware, of the use and monitoring policies? (e) Does the corporation enforce the monitoring policy? iii) It has been held that, where employee communicated with her attorney from her home but using her laptop computer provided by her employer, the attorney-client privilege remained intact and employer could not use files it subsequently extracted from the computer where the employee had attempted to delete the privileged communications before returning the computer to the employer. 51 iv) Client communicates with lawyer using work computer. Work place policy is that s are regularly inspected. Strong argument that there is no reasonable expectation of privacy. (This is particularly true if lawyer represents principals of a company that is heading into bankruptcy) 52 v) What system is the client using? (1) Work place computer? (a) If so, issue subpoena to employer for s (and be sure to seek employer s monitoring policy). (2) Internet account (e.g., Gmail, Yahoo, Hotmail, etc.)? (a) Much more difficult analyze s (even if done on a work computer). (3) Home computer? (a) Who accesses the s? c) Forwarded s 49 Id. at 257 (citing O'Connor v. Ortega, 480 U.S. 709, 717, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987)). 50 See Id. and Curto v. Medical World Communications, Inc., 2006 WL (E.D.N.Y. 2006). 51 Curto v. Medical World Communications, Inc., 2006 WL (E.D.N.Y. 2006) (applying the Asia Global factors). 52 See e.g., In re Asia Global Crossing, Ltd., 322 B.R. 247 (Bankr. S.D.N.Y. 2005). KC

11 i) Once an leaves a control group, the contents may no longer be privileged. 53 ii) Misdirected s may lose any applicable privilege iii) Be VERY careful with automatic addresses (i.e.., make sure you don t send an errant message): (1) Real Life Example of Attorney Error: Multimillion dollar litigation regarding 547 preference claim. Defendants are represented by seven (7) attorneys. Defendants have exchanged s previously with Plaintiff s counsel. Key pleading deadline is approaching. Low level associate completes draft of brief at approximately 2:00 a.m. (EST) and sends to everyone in case (including Plaintiff s counsel). (2) Real Life Example of Attorney Error: Opposing counsel exchange s regarding disclosure of expert witness on ordinary course defense. Opposing counsel then sends an internal to partner on matter but accidentally hits the reply all button. iv) Instruct your staff!!! (1) Real Life Example of Staff Error: Defense attorney forwards from client to paralegal/assistant seeking additional information. Paralegal/assistant forwards (including full strand) to Trustee s paralegal seeking the requested information. (2) Real Life Example of Staff Error: Debtor s attorney with information about case. Subsequently, Trustee seeks additional information from debtor s attorney who refers the matter to his paralegal. Paralegal faxes to the Trustee a copy of the that debtor originally sent to her attorney. (3) WARNING: (a) Where staff in firms do a lot of the leg work (e.g., communicating with client and later communicating with opposing attorney and/or opposing staff, there is a big risk of inadvertent production of privileged material) v) Instruct your client!!! (1) Real Life Example of Client Error: Attorney advises client via regarding purchase agreement and suggests that buyer review agreement. Client forwards agreement (attached to ) along with attorney s in the strand. d) Bankruptcy i) Pre-bankruptcy privileged communications can instantaneously become open game with a bankruptcy filing (1) Real life example: Corporation is involuntarily put into bankruptcy. Chapter 7 Trustee subsequently obtains original attorney files of two different law firms that represented the corporation pre-petition. ii) ESI is involved in virtually every bankruptcy so deal with it!!! Consider 363 sales, liquidations, cancellations/returns of leased computers and digital electronic equipment; contracted outsourced accounting and financial operations, production of electronically created, stored and shared information in an adversary proceeding, turnover of property of the estate and turnover of property by a custodian. There will 53 See e.g., Id. KC

12 be a transfer of ESI in some form to or from a third party in virtually every bankruptcy (from a consumer chapter 7 to a mega-chapter 11). 54 e) Inadvertent production i) New Rule 4.4(b) (discussed above) does not prohibit attorney from reviewing the document and does not require attorney to destroy the document. ii) But Fed. R. Civ. P. 26(b)(5)(B) provides that, [a]fter being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved. iii) What is the real risk of an inadvertent production? (1) Inadvertent production possible waiver of the privilege (2) Inadvertent production At a minimum you have educated your opponent on some sensitive information less favorable settlement (a) Indeed, an attorney who erred and inadvertently produced privileged information will have an incentive to advise his client to settle rather than proceeding to trial where a malpractice action could ripen against the attorney iv) In short, an inadvertent disclosure may be the basis of a malpractice action if the disclosing attorney is not sufficiently sophisticated in e-discovery matters. While the likelihood of a malpractice action may be small particularly where opposing counsel and/or the judge provides a save face while getting out resolution, the much more real threat is a significantly less favorable settlement amount, client dissatisfaction, and loss of future work and referrals. 55 6) Encryption one method to physically protect privileged communications a) What are the benefits of encrypted ? i) Privileged communications are practically protected ii) Encrypted communications are easier to protect legally because both the objective and subjective expectations of privacy are clearly present. iii) It is easier to control the control group. iv) The contents are not discoverable if an accident occurs (i.e., the is accidentally forwarded to a non-privileged party such as opposing counsel). v) Risks associated with inadvertent production are minimized (i.e., its easy to spot and withhold encrypted s and even if they are produced they cannot be accessed without the password) vi) E-production, in turn, becomes easier because it is not as time consuming to ensure that all privileged s have been removed. b) What are the detriments to encrypted ? i) A bit more cumbersome ii) Loss of password prevents from being reviewed. iii) How do you convince a large corporation that it needs to use encrypted ? 54 Michael D. Fielding and Jack Seward, You Need to Know This: Bankruptcy and Attorney - Client Privilege in the Electronic Age, American Bankruptcy Institute Journal, Vol. XXV, No. 10, p. 63 December/January Id. at 65. KC

13 7) Practical Pointers for the Practitioner: A three-tier approach to protecting privileged communications based upon the legal principles set forth above a) Recognize the risks i) The attorney needs to know and understand the risks of disclosure. (1) Remember the following: (a) Your own ignorance can expose you and your client to serious risks. (b) There is no excuse for not knowing basic information about storage and retrieval of ESI ii) Subordinate lawyers need to be adequately instructed about the risks of disclosure iii) Staff needs to be thoroughly educated about the attorney-client privilege (1) Remember: Staff can pose a big practical risk particularly where staff regularly receive communications from clients and, in turn, communicates with attorneys/staff for the Trustee b) Practically (physically) protect privileged communications i) Restrict privileged communications to control groups. (1) Control group restrictions are particularly important when dealing with corporations and/or representing the principals. ii) Limit the channels ( addresses) through which privileged communications are sent (1) Remember: (unlike faxes or letters) can be reproduced and sent off with extremely little effort or notice. iii) Configure so that text from previous is not included in the reply message. iv) Segregate/separate privileged material from non-privileged material (1) Make sure staff members know the importance of separating privileged material v) Employ strong filtering systems to prevent disclosure of privileged material (1) Multiple person review (2) Software that searches for key names and/or addresses vi) Use encryption software c) Legally protect privileged communications i) Send prompt notifications when privileged material has been disclosed ii) Specifically request that privileged materials be destroyed or returned iii) Promptly seek protection from the Court iv) A legal disclaimer at the end of an does not protect the privileged nature of the document!!! v) Remember that strong measures to practically protect the privilege create a greater likelihood that the privilege will be legally protected. KC

14 Part III Preservation and Review of ESI in Bankruptcy 56 Introduction 8) The problems that exist with debtor disclosures in bankruptcy a) Empirical evidence regarding undisclosed assets: i) 38% of assets were not disclosed by debtors in initial filings 57 ii) 41% of cases had undisclosed assets based upon the initial filings. 58 iii) 23% of the value of administered assets was not disclosed in initial filings. 59 From the perspective of debtor s counsel 9) What are the ethical and legal responsibilities of the debtor s counsel to the debtor that relate to ESI? a) Ethical obligations See discussion above i) Rules 1.1; 1.4; 1.6; 5.1; 5.2; 5.3 b) Legal obligations i) General obligations 60 (1) The duty of reasonable inquiry imposed upon an attorney requires the attorney (1) to explain the requirement[s] of full, complete, accurate, and honest disclosure of all information required of a debtor; (2) to ask probing and pertinent questions designed to elicit full, complete, accurate, and honest disclosure of all information required of a debtor; (3) to check the debtor's responses in the petition and Schedules to assure they are internally and externally consistent; (4) to demand of the debtor full, complete, accurate, and honest disclosure of all information required before the attorney signs and files 56 Part III is derived from an outline that the author prepared and distributed at his panel presentation for the Commercial Fraud Task Force's meeting at the April, 2007 American Bankruptcy Institute Conference in Washington, D.C. 57 Hon. Steven W. Rhodes, A Preview of Demonstrating a Serious Problem with Undisclosed Assets in Chapter 7 Cases, Norton Bankruptcy Law Adviser (May 2002). 58 Id. 59 Id. 60 See generally, Hon. Steven Rhodes, The Responsibilities of the Debtor s Attorney Regarding the Disclosure of the Debtor s Assets, American Bankruptcy Institute Bankruptcy 2006: Views from the Bench ABI-CLE 515 (Nov. 30 Dec. 2, 2006) KC

15 the petition; and (5) to seek relief from the court in the event that the attorney learns that he or she may have been misled by a debtor. 61 (2) Counsel has a duty to supervise clients' conduct for compliance with the Bankruptcy Code. 62 (3) Although debtors may consciously or unconsciously omit information that the law and their lawyers require, once a lawyer discovers the facts, he must notify, amend, and otherwise formally correct effects of the omission in a civil case. 63 (4) A debtor's attorney also bears a significant degree of responsibility in assuring to the best of his or her ability that the schedules are complete and accurate before they are filed. 64 (5) Neither a debtor nor his attorney is entitled to omit information or provide partial information. 65 (6) If litigation appears likely (e.g., discharge denial action, preference/fraudulent transfer claims, etc.), then there is a duty to preserve evidence (a) General principles regarding preservation against spoliation (i) The duty to preserve material evidence arises not only during litigation but also extends to that period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation. 66 (ii) If a party cannot fulfill this duty to preserve because he does not own or control the evidence, he still has an obligation to give the opposing party notice of access to the evidence or of the possible destruction of the evidence if the party anticipates litigation involving that evidence. 67 (iii) Once the duty to preserve material for litigation arises the party has a duty to initiate a litigation hold and preserve potentially responsive documents and [electronically stored information]. 68 (iv) If destruction of relevant information occurs before any litigation has begun, in order to justify sanctions, the requesting party must show that the destruction was the result of bad faith. Bad faith need not directly be shown but can be implied by the party's behavior. For example, the Eighth Circuit has explained that (1) a party's decision to selectively preserve some evidence while failing to retain other or (2) a party's use of the same type of evidence to their advantage in prior instances, may be used to demonstrate a party's bad faith. In order to determine whether sanctions are warranted when documents have been destroyed due to a company's 61 In re Thomas, 337 B.R. 879, 892 (Bankr. S.D. Tex. 2006) (citing In re Robinson, 198 B.R (Bankr. N.D. Ga. 1996) 62 In re Nilges, 301 B.R. 321, 325 (Bankr. N.D. Iowa 2003) 63 United States v. Thomas, 342 B.R. 758, 760 (S.D.Tex. 2005) 64 In re McKain, 325 B.R. 842, 849 (Bankr. D. Neb. 2005) 65 Id at (citing In re Bellows-Fairchild, 322 B.R. 675, 681 (Bankr. D. Or. 2005) 66 Silvestri v. General Motors Corp., 271 F.3d 583, 591 (4 th Cir. 2001); see also Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998) ( This obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation--most commonly when suit has already been filed, providing the party responsible for the destruction with express notice, but also on occasion in other circumstances, as for example when a party should have known that the evidence may be relevant to future litigation. ) 67 Silvestri v. General Motors Corp., 271 F.3d 583, 591 (4 th Cir. 2001) 68 In re NTL, Inc. Securities Litigation, 244 F.R.D. 179, 197 (S.D.N.Y. 2007) KC

16 retention policy prior to litigation, the court must consider: (1) whether the retention policy is reasonable considering the facts and circumstances surrounding those documents, (2) whether lawsuits or complaints have been filed frequently concerning the type of records at issue, and (3) whether the document retention policy was instituted in bad faith. 69 ii) 11 U.S.C. 542(e) Subject to any applicable privilege, after notice and a hearing, the court may order an attorney, accountant, or other person that holds recorded information, including books, documents, records, and papers, relating to the debtor's property or financial affairs, to turn over or disclose such recorded information to the trustee. (1) If the documents or books are not property of the estate, [ 542(e)] applies to require disclosure of the information in such books or records. 70 (2) [T]he Trustee is entitled to turnover of all property of the estate pursuant to 11 U.S.C. 542(e) and 543. To the extent any books and records or other property of the Debtor is in the possession, or comes into the possession, of the Defendants or third parties under the control or direction of the Defendants, these books and records are to be turned over to the Trustee immediately. 71 iii) 11 U.S.C. 707(b)(4)(C) signature certifying that attorney has performed a reasonable investigation that gave rise to the petition, pleading, or written motion, and that the petition, pleading, or written motion is (a) well grounded in fact and (b) warranted by existing law or is made in good faith relating to a possible change in existing law iv) 11 U.S.C. 707(b)(4)(D) signature certifying that attorney has no knowledge after an inquiry that the information in the bankruptcy schedules is incorrect. (1) Both the debtor and her attorney share the responsibility for the current situation. They each had a duty to make sure the schedules and statement of financial affairs were correct, and they each dropped the ball. This issue takes on even greater significance in light of the Bankruptcy Abuse Prevention & Consumer Protection Act of 2005, most of which takes effect in October Under the provisions of the new law, counsel's signature on a petition constitutes a certification that the attorney has no knowledge, after an inquiry, that the information in the schedules filed with the petition is incorrect. 11 U.S.C. 707(b)(4)(D). Attorneys may be subject to assessment of a civil penalty for signing a document without conducting a reasonable inquiry into the underlying facts. 707(b)(4)(B). 72 v) Fed. Bankr. R. Pro (1) Rule 11 sanctions are accessible when (1) the party has no reasonable factual basis to support the filing of the pleading; (2) the party files a legal pleading with no reasonable chance of legal success or has no good faith basis for arguing a change to existing law; or (3) the party files the pleading in bad faith for an impermissible purpose E*Trade Securities LLC v. Deutsche Bank AG, 230 F.R.D. 582, (D.Minn. 2005) (citations omitted). 70 In re Blinder, Robinson & Co., Inc., 140 B.R. 790, 793 (D.Colo. 1992) (citation omitted) 71 In re Tri-O-Clean, Inc., 230 B.R. 192, 200 (Bankr. S.D. Fla. 1998) 72 In re McKain, 325 B.R. 842, 851 (Bankr. D. Neb. 2005) 73 Evergreen Security LTD. 318 B.R. 220 (Bankr. M.D. Fla. 2004) KC

17 (2) The court determines whether or not Rule 11 sanctions are warranted by (1) determining whether they are objectively frivolous and (2) determining whether the attorney signing the pleadings was aware of their frivolity at the time of the signing the complaint. 74 (3) A complaint will be deemed factually groundless if a plaintiff has no evidence to support his contentions at the time of filing. 75 (4) Attorneys have an obligation to investigate potential claims before filing an action. 76 (5) The reasonableness of the inquiry to be made will be dependant upon the circumstances including the time within in which the claim must be filed and the availability of facts. 77 c) PRACTITIONER ALERT!!! Phoenix Four: A painful example of failure to do due diligence i) Client ceased operations and was subsequently involved in litigation. Law firm failed to find certain ESI on one of the computers. The court found that the lawyers failure to find the ESI constituted gross negligence. Law firm and defendants were jointly ordered to pay $30,000 for re-depositions 78 and $45, for attorney fees and costs. 79 The Court specifically ordered that the monies could not be paid by defendants insurance carriers. 80 ii) The Phoenix Four decision should be the clarion call to all bankruptcy attorneys because the law firm s gross negligence was a result of its failure to conduct a methodical search for ESI while simply relying upon the defendants representations that there were no sources of ESI because the company was no longer in operation. 81 iii) The Phoenix Four Court said: (1) [C]ounsel s obligation is not confined to a request for documents; the duty is to search for sources of information.in reaching this determination, I am guided by the proposed amendments to Federal Rule of Civil Procedure 26, which become effective in December of this year. Proposed Rule 26(a) requires parties to disclose a description by category and location of... electronically stored information. Proposed Rule 26(b)(2) reinforces the concept that a party must identify even those sources that are not reasonably accessible, but exempts the party from having to provide discovery from such sources unless its adversary moves to compel discovery. The proposed amendments essentially codify the teaching of Zubulake IV & V. 82 d) Practical Pointers for the Practitioner 74 Id. 75 Id. 76 Id. 77 Id. 78 Phoenix Four, Inc. v. Strategic Resources Corp., 2006 WL (S.D.N.Y.) 79 Phoenix Four, Inc. v. Strategic Resources Corp., 2006 WL (S.D.N.Y.) 80 Id. 81 Michael D. Fielding and Jack Seward, You Need to Know This: Bankruptcy and Attorney - Client Privilege in the Electronic Age, American Bankruptcy Institute Journal, Vol. XXV, No. 10, December/January 2007, p Phoenix Four, Inc. v. Strategic Resources Corp., 2006 WL (S.D.N.Y. 2006). (emphasis in original and citations omitted) KC

18 i) Establish an intake process and office system that ensures Debtor s assets are ascertained and information (including ESI) is preserved. (Rule 5.1) ii) Adequately teach and instruct staff to ensure that their efforts with the client result in identification and preservation of both assets and ESI (Rule 5.3) iii) Clearly and thoroughly instruct the debtor regarding his/her obligations (1) Thoroughly explain to the debtor the duty to disclose (a) DISCLOSE, DISCLOSE, DISCLOSE!!! (b) Law can be best friend or worst enemy (c) If debtor doesn t want to disclose then maybe you shouldn t represent him. iv) Give the debtor a document which clearly identifies his/her obligations with respect to the bankruptcy generally and preservation of ESI specifically (1) It gives the Debtor something to remember and use when identifying and protecting ESI (2) It might protect the attorney against potential claims of malpractice or ethics violations (3) But the attorney-client privilege may be invoked to prevent an attorney or his/her assistant from testifying regarding questions asked in preparing bankruptcy schedules. 83 v) Identify debtor s ESI (1) This can be done in a manner similar to how one would learn about a client s ESI in preparation for a Rule 26(f) conference. (a) Identify potential issues that will arise following the bankruptcy filing (b) Thoroughly learn about how and where your client keeps ESI (i) systems ( programs? Internet based? Instant messaging? Text messaging?) (ii) Program files (e.g., accounting/money management, word processing, spreadsheet, any programs that may contain intellectual property, etc.). (iii)network system and configuration (including network administrators, hardware, etc.). (iv) User hardware (desktops, laptops, PDAs, thumb drives, MP3 players, etc.) (v) Backups (2) Obtain answers to the pre-341 questions and pre-341 documents/esi (identified below) (3) Other points (a) Is equipment leased? When will it be returned? (b) Deletion policies? vi) Preserve the debtor s ESI (1) Ascertain the ESI that the client has that may be relevant (see e.g., suggested 341 questions below). (2) Prevent intentional and/or inadvertent deletion of ESI (a) Thoroughly instruct the client regarding his/her/its obligations (i) Identify likely ways in which ESI could be lost (ii) It is advisable that the instruction go beyond the Debtor s principals. (b) Consider a legal hold letter or sent to all company employees (i) Send a preservation letter to the client and follow-up 83 In re Stoutamire, 201 B.R. 592 (Bankr. S.D. Georgia 1996). KC

19 1. Make sure specific employees are spoken to about the case. (c) Require that the screen saver for all computers remind and instruct users regarding preservation of ESI. (3) Copy ESI prior to or at the time of the bankruptcy filing (a) Financial files, s, word processing files, etc. can be simply and easily burned onto a disc or hard drive to preserve data (i) Copies of s should include the sent box of the file folder (because most folks often don t bcc themselves) and it should also include the trash or Recycle Bin. (4) Risks associated with these cost-effective solutions (a) Deleted data may not be captured. To capture deleted data a bit-stream image may be necessary (b) The simple act of copying may change certain data. However, in most cases, substantive data destruction of existing files will likely not occur vii) Follow-up with the debtor make sure the debtor provides complete and accurate answers to your inquiries viii) Be skeptical, think like the trustee, and do your own independent investigation! (This can be done in approximately minutes by a paralegal or a legal administrative assistant and it s a lot less costly than dealing with the consequences of a 707(b)(4)(C) or (D) violation!!!) (1) UCC searches (2) Division of Motor Vehicles (3) Secretary of State searches (4) Real estate searches (if available via Internet) (5) PACER (CM/ECF) searches (6) State court dockets (e.g., Missouri case.net) ix) Remember: If it appears that the client is trying to hide something, then you should seriously consider declining representation of him/her in the bankruptcy. From the perspective of the debtor 10) What are the debtor s legal responsibilities with respect to ESI in filing a bankruptcy proceeding? a) Overarching principal i) Bankruptcy is a privilege offered to Americans who genuinely need the opportunity to start over--it is not the right to avoid obligations, especially the obligations of the bankruptcy process itself. The opportunity for a fresh start--whole or partial--is conditioned on the faithful compliance with the orders, rules, and laws. 84 ii) Debtor s need to fully comprehend this principle b) Legal obligations i) 18 U.S.C. 152 Concealment of assets; false oaths and claims; bribery 84 United States v. Thomas, 342 B.R. 758, 762 (S.D.Tex. 2005) (emphasis added) KC

20 (1) 152(9) includes knowingly and fraudulently withholding recorded information (such as books, documents, records and papers) ii) 18 U.S.C. 157 Bankruptcy fraud iii) 18 U.S.C Destruction, alteration, or falsification of records in Federal investigations and bankruptcy iv) 18 U.S.C Concealment of bankrupt s assets (concealment deemed a continuing offense until the debtor is discharged or discharge is denied) v) 11 U.S.C. 521(a)(3) Debtor must cooperate with the trustee as necessary to enable the trustee to perform the trustee s duties under the Bankruptcy Code vi) 11 U.S.C. 521(a)(4) debtor must surrender to the trustee all property of the estate and any recorded information, including books, documents, records, and papers, relating to property of the estate, whether or not immunity is granted under section 344 of [the Bankruptcy Code]. 85 vii) 11 U.S.C. 542(a) Debtor must turnover to the trustee and account for property of the estate. (1) The debtor has an affirmative duty to turnover property of the estate and this duty must be fulfilled to obtain the benefit of a discharge. 86 viii) 11 U.S.C. 727(a)(3) The debtor s discharge may be denied if the debtor has concealed, destroyed, mutilated, falsified, or failed to keep or preserve any recorded information, including books, documents, records, and papers, from which the debtor's financial condition or business transactions might be ascertained, unless such act or failure to act was justified under all of the circumstances of the case. (1) Standard: (a) [A] bankruptcy debtor is not required to maintain perfect records. A debtor is, however, obliged by [ 727(a)(3)] to preserve sufficient and adequate financial records to enable the court and the parties to reasonably ascertain an accurate picture of his financial affairs. 87 (b) [T]he Debtor's records should be measured against the type of books and records kept by a reasonably prudent debtor with the same occupation, financial structure, education, and experience. Factors focused on by the courts include: (1) whether the debtor was engaged in business, and if so, the complexity and volume of the business; (2) the amount of the debtor's obligations; (3) whether the debtor's failure to keep or preserve books and records was due to the debtor's fault; (4) the debtor's education, business experience and sophistication; (5) the customary business practices for record keeping in the debtor's type of business; (6) the degree of accuracy disclosed by the debtor's existing books and records; (7) the extent of any egregious conduct on the debtor's part; and (8) the debtor's courtroom demeanor. 88 (2) Examples of discharge denial relating to ESI U.S.C. 344 ( Immunity for persons required to submit to examination, to testify, or to provide information in a case under this title may be granted under part V of title 18. ) 86 In re Wright, 371 BR. 472, 479 (Bankr. D. Kan.) 87 In re French, 499 F.3d 345, 355 (4 th Cir. 2007) 88 In re Babb, 358 B.R. 343, 354 (Bankr. E.D. Tenn. 2006) (citations omitted) KC

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