ETHICAL MINEFIELDS AND EDISCOVERY: A PERFECT MATCH

ETHICAL MINEFIELDS AND EDISCOVERY: A PERFECT MATCH Theodora R. Lee Littler Mendelson P.C. 650 California Street 20 th Floor San Francisco, CA 94108 415.433.1940 tlee@littler.com

Ethical Minefields and ediscovery: A Perfect Match I. INTRODUCTION ediscovery has profoundly affected how employment cases are prepared and tried. E-mail evidence has made even the most routine cases document intensive. Electronic discovery issues have hijacked litigation on the merits in many cases. In class actions, electronic records of various kinds are often the centerpieces of proof, and proof of liability increasingly relies on statistical analyses of vast quantities of electronically stored data. Indeed, ediscovery has become one of the most critical developments in the legal world, with ediscovery opinions ranging from sanctions against clients and counsel, to forms of data production and new technologies (like cloud computing), to inadvertent waiver of privileges and other protections, to search and retrieval methodologies, continuing to dominate legal headlines. However, the ethical implications of ediscovery are often overlooked. Simply put, the explosion of electronically stored information in the modern workplace has dramatically raised the ethical stakes and the ethical risks in litigation. This paper will examine attorney obligations established by Zubulake v. UBS Warburg L.L.C, the ediscovery amendments to the Federal Rules of Civil Procedure and new Federal Rule of Evidence 502. Moreover, this paper will review the Rules of Professional Conduct and various cases and ethical opinions that underscore the unsympathetic view Courts and Bar Associations have taken towards ediscovery ignorance and misconduct. II. ELECTRONIC DISCOVERY AND ZUBULAKE The five orders issued in Zubulake v. UBS Warburg L.L.C., 217 F.R.D. 309, 311 (S.D.N.Y. 2003) ( Zubulake I ); Zubulake II, 230 F.R.D. 290 (S.D.N.Y. May 13, 2003); Zubulake III, 216 F.R.D. 280 (S.D.N.Y. Aug. 6, 2003); Zubulake IV, 220 F.R.D. 212 (S.D.N.Y. 2003); and Zubulake V, 229 F.R.D. 422 (S.D.N.Y. 2004) continue to serve as a legal icebreaker on the issues of the nature and scope of electronic discovery of the electronic workplace, leading contemporary demands for evidence embodied in electronic technology through the sheet ice of traditional discovery concepts. Plaintiff Laura Zubulake was hired by UBS Warburg as a senior equities trader. At the time of her termination, she was earning compensation of approximately $650,000 a year. Zubulake sued her former employer for gender discrimination and retaliation under federal, New York state, and New York City law. In the course of the discovery process, she demanded that the defendant produce e-mail exchanges held in defendant s hardware and storage data. As a securities firm, UBS was required by the Securities and Exchange Commission to maintain extensive e-mail backup and preservation protocols. Zubulake justified her demand in part on her estimate that, if she were to prevail on all her claims, her estimated damage recovery would be $13 million, exclusive of any punitive damages or attorneys fees. UBS Warburg refused to provide the entire discovery demanded by Zubulake. The employer contended that simply to retrieve and review the backup tapes required to search for e-mails responsive to her discovery demand would cost about $300,000, not counting attorney time necessary to review the retrieved e-mails to determine whether any of the material was privileged 1

from disclosure. UBS Warburg maintained that the plaintiff would have to bear the extraordinary expenses the employer would incur in retrieving the e-mails from archived storage. In Zubulake I, the court set forth a list of seven factors to be considered in determining the circumstances under which the cost to the producing party of complying with demands for discovery of electronic media may be shifted to the demanding party: the extent to which the request is specifically tailored to discover relevant information; the availability of such information from other sources; the total cost of production, compared to the amount in controversy; the total cost of production, compared to the resources available to each party; the relative ability of each party to control costs and its incentive to do so; the importance of the issues at stake in the litigation; and the relative benefits to the parties of obtaining the information. Zubulake I, 217 F.R.D. at 322. The court cautioned that each factor is not equal in weight. The court concluded that, taking the factors into consideration, the employer was required to produce all responsive e-mails on its active servers or on its optical disks at its expense. It would also be required to produce, at its expense, responsive e-mails from any five backup tapes, selected by the employer, and to report the results of that search, including time and money spent, in an affidavit. When it received that report, the court would then decide whether further discovery from the remaining 89 backup tapes was justified and, if so, at whose expense. Zubulake I, 217 F.R.D. at 324. In July 2003, the court reviewed the employer s affidavit. Based on the information contained in it, the court ordered that Zubulake had to pay a quarter of the estimated total cost of restoring archived data ($166,000), though the employer would pay the bulk of the cost. The court also ordered that the employer would have to bear, alone, any costs, including attorney and paralegal time, associated with reviewing the retrieved data to determine whether a privilege from disclosure might be asserted (costs which the employer estimated at $107,000). Zubulake III, 216 F.R.D. at 283, 289. In October 2003, the court wrote a fourth order in the case, this one addressing the costs of retrieving e-mail and the consequences to the employer of having deleted previously stored e-mails. The court noted that: Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a litigation hold to ensure the preservation of relevant documents. Zubulake IV, 220 F.R.D. at 218. Zubulake sought sanctions against her former employer of: having the employer bear the complete cost of storing the monthly backup tapes (not 75% of the cost, as ordered in Zubulake III); an adverse inference jury instruction concerning the missing e-mails; and 2

having the employer bear the costs of re-deposing certain individuals on the subject of the deleted e-mails. Zubulake IV, 92 Fair Empl. Prac. Cas. (BNA) 1543. The court denied the request to reallocate the cost-shifting, noting that the missing e-mails had already been considered a factor in allocating the costs. The court also denied the adverse inference instruction, concluding that Zubulake had not satisfied the requisite burden of proof to show that the employer had a culpable state of mind and that the missing information was relevant to or supported a party s claim or defense. Finally, the court in Zubulake IV did find that UBS Warburg should bear the cost of limited re-depositions of some witnesses concerning the missing e-mails. Id. at 1546-1548. The final major pretrial order resulted from the limited re-depositions of certain employer witnesses by the plaintiff. As a result of the re-depositions permitted by the court s decision in Zubulake IV, the plaintiff presented evidence that one key e-mail had been irretrievably lost, and that others were likely lost. Zubulake V addressed counsel s obligation to ensure that relevant information is preserved by giving clear instructions to the client to preserve such information and, perhaps more importantly, a client s obligation to heed those instructions. The court found that even though UBS s counsel alerted the company at the outset to preserve all possible relevant e-mail, and make an ongoing effort to do so, some company representative deleted relevant e-mails. Other employees never produced relevant e-mails. Zubulake V, 229 F.R.D. at 424. In the court s view, the culpability for late-produced and never-produced e-mail evidence did not lie solely on the shoulders of the company and found that UBS s counsel: failed to request retained information from one key employee; failed to give the litigation hold instructions to another employee; failed to adequately communicate with another employee about how she maintained her computer files; and failed to safeguard backup tapes that might have contained some of the deleted e-mails. The court in Zubulake V, with this additional information now available, revisited the plaintiff s request for sanctions for the employer s failure to produce evidence, and for destruction of evidence. It concluded that the employer s counsel must take the following steps to ensure compliance with the evidentiary preservation obligation: Issue a litigation hold at the outset of litigation, or whenever litigation is reasonably anticipated. Communicate directly with the key players in the litigation concerning the preservation duty, and periodically remind them that the duty still applies. Instruct all employees to produce electronic copies of their relevant active files. Identify and secure all backup media that the party is required to retain. 3

Id. at 433-34. Applying these standards to the facts as developed in Zubulake, the court reasoned that UBS deleted the e-mails in defiance of explicit instruction not to [do so]. The court found that the company s spoliation of evidence was willful, and that the lost e-mails were presumed to be relevant. Zubulake V, 229 F.R.D. at 436. For the actions of the employer and its counsel in failing to preserve relevant evidence, the court concluded that the plaintiff would be entitled to a jury instruction allowing the jury to draw an inference adverse to the employer concerning the contents of the deleted and lost e-mails; the employer was ordered to pay the costs of any depositions or re-depositions required by the late production of e-mails, and the employer was ordered to pay the costs of Zubulake s motions seeking sanctions against the employer. The jury instruction was obviously a factor in the judgment of more than $29 million for the plaintiff. In a postscript to Zubulake V, the court warned: Now that the key issues have been addressed and national standards are developing, parties and their counsel are fully on notice of their responsibility to preserve and produce electronically stored information. Id. at 440. The five Zubulake orders are a bracing reminder of the evidentiary significance of e- mail to today s businesses, and the costs and other consequences of using, storing, and not deleting it. The quintet of orders makes clear that it will be the responsibility of both the employer and the employer s counsel to identify, secure, and retain all possibly relevant electronic evidence, on pain of being subject to sanctions for their failure to do so. III. ELECTRONIC DISCOVERY: FEDERAL RULES OF CIVIL PROCEDURE Significant amendments to the Federal Rules of Civil Procedure became effective on December 1, 2006. Zubulake broke the legal ice surrounding the nature and scope of electronic discovery of the electronic workplace the 2006 amendments signaled the crystallization of this area of law. Increased regulation brings more obligations for employers and their counsel, but it also means more clarity. The amendments also include ESI within the documents and things that must be produced in response to a request for production. Fed. R. Civ. Proc. 34(a). Moreover, the amendments are clear that the term ESI was intended to be read expansively to include all current and future electronic storage mediums. Fed. R. Civ. Proc. 34 Advisory Committee Notes. As employers interactions with their customers and employees through the Internet and social media sites (e.g., Facebook, Twitter, LinkedIn, blogs) continue to increase, employers should carefully consider the 2006 amendments, which provide methods for minimizing risk and detail proper handling of ESI. A. Scheduling Orders & ESI As amended, Federal Rule of Civil Procedure 16 provides that a scheduling order may address matters related to the discovery of ESI and may include any agreement between the parties concerning the assertion of privilege after privileged information or work product has been produced. For example, the parties can agree that disclosure of privileged information per se does not waive the attorney-client privilege or work-product protection (a clawback agreement). 4

At the required meet and confer session, the parties should discuss: preservation of ESI, including the balance between the need to preserve relevant evidence and the need to continue routine operations that may result in the automated destruction of ESI; the cost of preserving ESI that is not reasonably accessible; the form(s) of production; and any agreement concerning the production of information that is privileged or work product. To the extent applicable, these topics should be discussed with respect to paper documents as well. One goal of these discussions should be to identify areas of dispute that can be resolved at the scheduling conference before costly and time-consuming searches and productions occur. Other areas of discussion include the following: the parties information systems; the subject matter and time frame of discovery; the sources of information to be searched; the types of ESI that are and are not reasonably accessible; and the costs of production. B. Production of ESI that Is Not Reasonably Accessible An employer is not required to produce ESI that is not reasonably accessible because of undue burden or cost. Fed. R. Civ. Proc. 26(b)(2)(B). The employer must identify in its responses to requests for production the source of ESI that has not been searched or produced because of undue burden or cost. If the plaintiff moves to compel, the employer then has the burden of showing that the information is not reasonably accessible. Even so, the court may still compel production if the plaintiff shows that the probative value of the evidence would be high and it is not available from any other source. One example may be the production of metadata other data that provides additional information about the underlying electronic data (e.g., authors, dates files were created, modified, accessed). In National Day Laborer Org. Network v. U.S. Immigration & Customs Enforcement Agency, 2011 U.S. Dist. LEXIS 11655, at *7 (S.D.N.Y. Feb. 7, 2011), the court held that certain metadata should be considered an integral part of an electronic record and ordered its production. If the court orders production, the court may allocate the cost of production between the parties and specify other terms and conditions for the discovery. Information that is not reasonably accessible for purposes of this rule typically will include deleted files, information stored on back-up tapes created for disaster-recovery purposes, information that will require legacy hardware or software to retrieve, and dynamic databases. To be not reasonably accessible, the information must be difficult to access for all purposes, not just for a particular litigation. 5

Responses to requests for production should: identify what source(s) of ESI was not searched because it was not reasonably accessible; explain the burdens and costs of providing the discovery; and indicated the likelihood of finding responsive information on such sources. The court will balance the burden and cost of locating, restoring and retrieving ESI from the source where it is stored against the likely benefit, taking into account the needs of the case, the amount in controversy, the parties resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving those issues. If a court permits a plaintiff to take discovery to obtain evidence in an effort to rebut the employer s assertions of burden or cost, such discovery might consist of sampling the challenged source, inspecting hardware or software, or deposing an individual with knowledge of the responding party s information systems. C. Assertions of Privilege After Putatively Privileged Information Has Been Produced An employer producing privileged information may assert protection from discovery after producing the information by notifying the plaintiff of the claim and the basis for it. Fed. R. Civ. Proc. 26(b)(5)(B). The plaintiff then may not use or disclose the information, but must promptly return, sequester or destroy the putatively privileged information, pending resolution of the claim. To challenge the claim, the plaintiff must submit the information under seal to the court for a determination whether the information is protected. This amendment was driven by the high cost of reviewing ESI for privileged information and the increased risk of inadvertent disclosure when privileged information is contained in embedded data and/or metadata, but applies also to paper documents and information in electronic form. The amended rule only establishes a procedure for resolving claims of privilege and workproduct protection after putatively protected information has been produced; the amended rule does not alter the substantive law of privilege or waiver. D. Production of ESI in Lieu of Responding to an Interrogatory In lieu of answering an interrogatory that seeks information contained in business records, the employer may instead produce the ESI that contains such information. Fed. R. Civ. Proc. 33(d). To take advantage of this option with respect to ESI, the employer may be required to provide some combination of technical support, information on application software, or other assistance. E. Producing ESI 1. Federal Rule of Civil Procedure 26(f) & Meet and Confer Requirements Under Federal Rule of Civil Procedure 26(f), in formulating a discovery plan, with respect to the discovery of ESI, the parties must identify within their discovery plan submitted to the court, any issues about disclosure or discovery of electronically stored information, including the form or forms in which it should be produced. Fed. R. Civ. Proc. 26(f)(3). 6

The Committee Notes further explain that Rule 26(f) s meet and confer requirement is intended to facilitate early discussions regarding electronic discovery so as to help avoid the expense and delay of searches or productions using inappropriate forms. See Fed. R. Civ. Proc. 26 Advisory Committee s Notes on 2006 Amendments, Subdivision (f). Moreover, numerous courts now include specific electronic discovery topics within their standard Rule 26(f) reports, joint case management plans, and/or discovery guidelines. Many of these protocols specifically include the form of production. 2. Federal Rule of Civil Procedure 34 & Form of Production Rule 34 sets forth the rules for requesting and producing ESI. While it may be more advantageous for the parties to reach an agreement on production formats and organization related to electronic discovery during the Rule 26(f) conference, if the parties have not or cannot do so, Rule 34 presents another option for resolving such a dispute. Specifically, Rule 34(b)(2)(E) provides that, unless otherwise stipulated or ordered by the court, a party responding to a request for production of documents or electronically stored information: (i) must produce documents as they are kept in the usual course of business or must organize and label them to correspond to categories in the request; and (ii) if a request does not specify a form for producing electronically stored information, a party must produce it in the form or forms in which it is ordinarily maintained or in a reasonably usable form or forms. The purposes of Rule 34(b)(2)(E) can be summarized as being to encourage forms of production that would be inexpensive for the producing party and reasonably useable for the requesting party; and to avoid costly data conversion on the one hand, and the electronic equivalent of the document dump on the other hand. The Sedona Conference, BEST PRACTICES RECOMMENDATIONS & PRINCIPLES FOR ADDRESSING ELECTRONIC DOCUMENT PRODUCTION, at 63 (2d ed. 2007). F. Safe Harbor for Good-Faith, Routine Destruction of ESI The amended rule establishes a safe harbor from sanctions for the destruction of ESI because of the routine, good-faith operation of an electronic information system. Fed. R. Civ. Proc. 37(f). This rule applies to data destruction by automatic features that are essential to the functioning of the electronic information system, such as programs that recycle storage media used for shortterm disaster recovery purposes, automatic overwriting of deleted information, programs that automatically change metadata to reflect the most recent uses, and programs that automatically discard data that has been accessed within a specified period of time. The rule applies as well when the employer s data is stored on a third-party s information system, for example, benefits administration information stored by the plan s third-party administrator. The good-faith requirement means that an employer cannot take advantage of the routine operation of an electronic information system to thwart discovery obligations by allowing automated destruction to continue for the purpose of destroying specific stored information that the party is required to preserve. 7

Factors that the court most likely would consider in evaluating good faith include: the cost and/or burden of interrupting or disabling the automated destruction process; the availability of the information from another source; the steps taken by the employer to implement the litigation hold; specificity of the plaintiff s preservation request; and whether the court had entered a preservation order, or the parties had reached an agreement regarding preservation, before the destruction occurred. In exceptional circumstances, the court may impose sanctions even if the loss of data is the result of the routine, good-faith operation of an electronic information system for example, when automated destruction, though in good faith, results in serious prejudice to the plaintiff because potentially important information was destroyed. IV. ELECTRONIC DISCOVERY: THE NEW FEDERAL RULE OF EVIDENCE 502 A. Introduction Federal Rule of Evidence 502 governs the disclosure (inadvertent or otherwise) of privileged or protected material in federal proceedings. Federal Rule of Evidence 502 reads, in relevant part: (a) Disclosure Made in a Federal Proceeding or to a Federal Office or Agency; Scope of a Waiver. When the disclosure is made in a federal proceeding or to a federal office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a federal or state proceeding only if: (1) the waiver is intentional; (2) the disclosed and undisclosed communications or information concern the same subject matter; and (3) they ought in fairness to be considered together. (b) Inadvertent Disclosure. When made in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if: (1) the disclosure is inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and 8

(3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B). (c) Disclosure Made in a State Proceeding. When the disclosure is made in a state proceeding and is not the subject of a state-court order concerning waiver, the disclosure does not operate as a waiver in a federal proceeding if the disclosure: (1) would not be a waiver under this rule if it had been made in a Federal proceeding; or (2) is not a waiver under the law of the state where the disclosure occurred. (d) Controlling Effect of a Court Order. A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court-- in which event the disclosure is also not a waiver in any other federal or state proceeding. (e) Controlling Effect of a Party Agreement. An agreement on the effect of disclosure in a federal proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order. (f) Controlling Effect of This Rule. Notwithstanding Rules 101 and 1101, this rule applies to state proceedings and to federal court-annexed and federal court-mandated arbitration proceedings, in the circumstances set out in the rule. And notwithstanding Rule 501, this rule applies even if state law provides the rule of decision. Rule 502 was enacted, in part, to respond[] to the widespread complaint that litigation costs necessary to protect against waiver of attorney-client privilege or work product have become prohibitive... [a concern that] is especially troubling in cases involving electronic discovery. Fed. R. Evid. 502 committee notes (citing Hopson v. City of Baltimore, 232 F.R.D. 228, 244 (D. Md. 2005) ( electronic discovery may encompass millions of documents and to insist upon record-by-record pre-production privilege review, on pain of subject matter waiver, would impose upon parties costs of production that bear no proportionality to what is at stake in the litigation )). Under Rule 502(b), there can be no waiver of privilege related to an inadvertently produced document unless the producing party failed to take reasonable steps to prevent disclosure or failed to promptly take reasonable steps to rectify the error. Fed. R. Evid. 502(b). There is no shortage of case law interpreting the bounds of a parties reasonableness, both in terms of the steps taken to prevent waiver or the time taken to rectify the error. See, e.g., Diesel Machinery, 9

Inc. v. Manitowac Cranes, Inc., 2011 U.S. Dist. LEXIS 38300 (D.S.D. Apr. 4, 2011) (holding that defendant s six-day delay between production and notification was reasonable and that plaintiff must return inadvertently produced document); Valentin v. Bank of N.Y. Mellon Corp., 2011 U.S. Dist. LEXIS 40711 (S.D.N.Y. Apr. 14, 2011) (holding defendant took reasonable steps to prevent the disclosure as well as reasonable steps to rectify the error notwithstanding a four-month gap between production and the claim of privilege). B. Using a Rule 502(d) & Rule 502(e) Clawback Agreement to Opt Out of Rule 502(b) While Rule 502(b) protects a party that can demonstrate the reasonableness of its production efforts, the provision can lead to expensive motion practice as the receiving party and the court scrutinize the producing parties document review methodology and the timeliness of notification. However parties are permitted, if not encouraged, under Rules 502(d) and (e), to opt out of Rule 502(b) to prevent the prospect of sideshow litigation over whether disclosure was inadvertent or whether reasonable steps were taken to prevent it. See, e.g., Valentin, 2011 U.S. Dist. LEXIS 40711; Datel Holdings Ltd. v. Microsoft Corp., 2011 U.S. Dist. LEXIS 30872 (N.D. Cal. Mar. 11, 2011). As explained in the Committee Notes: the court order may provide for return of documents without waiver irrespective of the care taken by the disclosing party; the rule contemplates enforcement of claw-back and quick peek arrangements as a way to avoid the excessive costs of preproduction review for privilege and work product. Fed. R. Evid. 502 committee notes, subdivision (d). Thus, the parties can set their own ground rules about the return of inadvertently produced information for example, mandating the return of documents without waiver irrespective of the care taken by the disclosing party which in turn can significantly limit for all parties the costs, expense and distraction (which can be significant) of litigating such issues. The policy of limiting litigation costs around waiver issues is so strong that courts have also expressed their willingness to sign Rule 502(d) clawback orders over a parties objection. See Rajala v. McGuire Woods, L.L.P., 2010 U.S. Dist. LEXIS 73564 (D. Kan. July 22, 2010); Whitaker Chalk Swindle & Sawyer L.L.P. v. Dart Oil & Gas Corp., 2009 U.S. Dist. LEXIS 15901, at **8-14 (N.D. Tex. Feb. 23, 2009). V. THE ETHICAL LANDSCAPE OF ediscovery At the outset, it is important to note two exemplar cases that set the scene for the ethical landscape of ediscovery. The first is a 2003 circuit court case, Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., Inc. in the Fifteenth Judicial Circuit in and for Palm Beach County, Florida, Case No. CA 03-5045 AI, in which Coleman had sued Morgan Stanley for fraud in connection with a sale of stock of Coleman to Sunbeam Corporation. During this case, the court found discovery misconduct by defendant including over-writing emails, providing a certificate of compliance known to be false and not timely withdrawing it, and failing to conduct proper searches for backup tapes that may have contained emails, and many other problematic issued surrounding the preservation and production of electronic data. The court commented: 10

Electronic data are the modern day equivalent of the paper trail. Indeed, because of the informalities of e-mail, correspondents may be less guarded than with paper correspondence. In this case, the paper trail is critical to [plaintiff s] ability to make out its prima facie case. Thus, [defendant s] acts have severely hindered [plaintiff s] ability to proceed. The only way to test the potentially self-serving testimony of [defendant s] personnel is with the written record of events. Given this e-discovery misconduct, the trial court reversed the burden of proof for fraud based on the defendant s willful and gross abuse of its discovery obligations The plaintiff was allowed to read a statement to the jury detailing the defendant s efforts to hide its emails as evidence of evil intent. After even more ediscovery violations came to light, the court granted the plaintiff s motion for sanctions which allowed plaintiff to read to the jury a 12-page adverse inference instruction that included portions of the amended complaint describing the alleged fraudulent scheme in extensive detail. In the end, the jury awarded plaintiff over $1.5 billion in damages consisting of $850 million in punitive damages. The next case, Qualcomm, Inc. v. Broadcom Corp. 2008 WL 66932 (S.D. Cal. Jan. 7, 2008), was a patent infringement action brought by Qualcomm regarding video compression standards. Broadcom s primary defense was waiver because it claimed the plaintiff had participated in joint, industry meetings regarding the standards in 2002. The plaintiff adamantly and repeatedly claimed that it did not participate in the meetings in 2002 and early 2003. It presented this defense throughout the litigation in written discovery, summary judgment, depositions, expert reports, motions in limine, pretrial memos of fact and law, during trial, and a motion for judgment as a matter of law. As the case progressed, plaintiff became increasingly aggressive in its claim that it did not participate in any joint, industry meetings during the time the standards-setting body was creating the video compression standard. However, during discovery the plaintiff s attorneys had not searched the emails of two 30(b)(6) witnesses who were produced regarding participation in the joint meetings. It was only during trial preparation, in a basic search of a laptop, that an associate located 21 previously unproduced emails that unequivocally demonstrated the plaintiff s active participation in the joint meetings during the relevant time period. Plaintiff ultimately produced the emails to defendant during trial but only after a cross-examination during trial revealed the existence of these emails. These 21 emails were only the tip of the iceberg. After a further review, plaintiff located 46,000 responsive documents (totaling over 300,000 pages) that had not been produced during discovery, and which were inconsistent with its argument that it did not participate in the joint meetings. In response, the judge ordered plaintiff to pay defendant $8.5 million for its monumental and intentional discovery violations, referred outside counsel to the State Bar of California for ethics violations, and ordered plaintiff s outside and in-house counsel to participate in a CREDO (Case Review and Evaluation of Discovery Obligations Protocol) which required: (1) identifying the factors that contributed to the discovery violations; (2) creating and evaluating proposals, procedures, and processes that will correct the ediscovery deficiencies from the case; (3) developing a comprehensive protocol that will prevent future discovery violations; (4) applying the protocol 11

that is developed to other factual situations; (5) identifying and evaluating data tracking systems, software, or procedures that corporations could implement to better enable inside and outside counsel to identify potential sources of discoverable documents; and (6) any other information or suggestions that will help prevent discovery violations. It is from these two cases that lawyers, ediscovery counsel and clients must take a closer look at the dynamics of ediscovery obligations and ethics. These cases make the point that in today s digital world, in-house and outside counsel must go beyond traditional requests for documents or even basic requests for emails in order to comply with the Model Rules of Professional Conduct. Accordingly, a review of key provisions of the ABA Model Rules of Professional Conduct is critical in understanding the ethical obligations imposed on attorneys by ediscovery. A. Competence ABA Rule 1.1 provides: Competence: A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Legal competence serves as an independent upward force, along with professional duties, to counter-balance the pressures and temptations involved with fulfillment of duties to clients. The strategy demanded in ediscovery when it is performed competently, is fundamentally different than traditional adversarial strategy for courtroom arguments. It involves cooperation on discovery, buttressed by liberal disclosure by both sides (party requesting information, and party responding to the discovery requests). As practitioners of ediscovery improve their technical competence, they realize that the cooperative model must be employed to focus on the issues and to control costs. Competent counsel have always understood that the true, and only valid purpose of discovery is to get at the key facts to allow reasoned evaluation of the case, not to prepare mountains of data, or extort the responding party, or bury the requesting party in a document dump. Competent legal counsel do not engage in discovery as abuse. Some attorneys who do not feel competent with ediscovery attempt to meet their ethical obligation of competence by hiring an ediscovery vendor to advise them. Unfortunately, this usually does not work, for such experts frequently only tell the attorneys who hired them what they want to hear. The hired guns simply supply arguments jazzed up with tech-speak to support the legal argument of the attorneys who hired them. Indeed, ABA Formal Opinion 08-451 addresses this issue. First, the Opinion provides that the outsourcing lawyer must have the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation as required by Rule 1.1 (ABA Commission on Ethics 20/20 proposed commentary to Rule 1.1). Moreover, when delegating work to outsourced personnel, outside counsel must take care: (1) that tasks are delegated to individuals who are competent to perform them ; and (2) to oversee the execution of the project adequately and appropriately. Finally, delegating work to lawyers in remote locations presents unique challenges. While electronic communication can close this 12

gap somewhat, they may not be sufficient to allow the lawyer to monitor the work of the lawyers and non-lawyers working for her in an effective manner. Moreover, courts have repeatedly emphasized the paramount role of the lawyer in fulfilling a client s duty to preserve evidence. Once on notice, the obligation to preserve evidence runs first to counsel, who then has a duty to advise and explain to the client its obligation to retain pertinent documents that may be relevant to the litigation. Telecom Int l Am., Ltd. v. AT&T Corp., 189 F.R.D. 76, 81 (S.D.N.Y. 1999). Moreover, most cases generally hold that technological ignorance is not an excuse with respect to lack of preservation or production. See, e.g., Martin v. Northwestern Mut. Life Ins. Co., 2006 WL 148991 (M.D. Fla. Jan. 19, 2006) (holding that a claim that counsel is computer illiterate and therefore incapable of retrieving emails did not serve as a good faith defense to a sanctions motion); Berkshire Life Insurance Company of America (D.Colo. Nov. 13, 2007) (technical incompetence, mistake or ignorance of counsel is not a good faith defense to motion to compel: Unfortunately, plaintiff s counsel does not employ a full time computer technician, [sic] occasionally a technology issues [sic] arises which exceeds plaintiff s computer expertise. ) This means that counsel must be familiar with the technology systems of their clients so they can advise as to the client s obligations to preserve and ultimately produce electronic data. It also means that attorneys who lack familiarity with technology must become educated in this regard and/or hire competent ediscovery counsel to handle these issues. B. Allocation of Authority Between Lawyer and Client ABA Rule 1.2 (a) provides: Allocation of Authority Between Client and Lawyer: [A] lawyer shall abide by a client s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued consult the client as to the means by which they are to be pursued... The allocation of authority between client and a lawyer is always a difficult ethical issue. Navigating ediscovery obligations with clients is often difficult. In many instances, lawyers have to push the client to seek the roadmap to the client s technological infrastructure. Clients do not always understand ediscovery obligations and this lack of understanding and proper explanation can in many instances push the attorney-client relationship into uncomfortable territory. But the courts have been consistently clear that the duty to preserve is only the beginning and an attorney s ethical obligation extends to knowing where the data is, and overseeing and monitoring compliance with preservation and production of data. See e.g., Zubulake v. UBS Warburg, LLC, 229 F.R.D. 422 (S.D.N.Y. 2004) (Zubulake V). In the end, attorneys must get out of their respective comfort zones to competently conduct ediscovery and understand the client s technology infrastructure, and be able to competently develop a plan that ensures continuing compliance with preservation and production obligations. The obligation will only grow and become increasingly more complex when addressing e- discovery of social media content. Social media continues to play an important role in electronic 13

discovery with a number of courts focusing on a party s preservation and production obligations of relevant content from Facebook and Twitter accounts. In 2011, courts put personal injury and employment plaintiffs on notice that relevant chat conversations, photographs, and wall posts are potentially relevant and subject to production irrespective of whether the material is maintained publicly or according to self-set privacy settings. In Zimmerman v. Weis Markets, Inc., No. CV-09-1535 (Pa. Commw. Ct. May 19, 2011), Judge Charles Saylor, a judge on the Northumberland County Court of Common Pleas, ordered the plaintiff to turn over all passwords, user names, and log-in names related to his MySpace and Facebook accounts. See also Gallion v. Gallion, FA114116955S (Conn. Super. Ct. Sept. 30, 2011) (court ordered opposing divorce lawyers to exchange their client s respective Facebook and dating website passwords). But the import of these early cases is that posting on social media sites is a modern form of electronic communication in a highly public forum. When such communications become relevant in civil litigation, they are discoverable regardless of the self-set privacy setting of such content. See, e.g., A Litigator s Guide to Discovery of Social Media ESI in Civil Actions, The Legal Intelligence, Jan. 29, 2013 (a party cannot hide behind self-set privacy controls because no privilege exists... for information posted in the nonpublic sections of social websites and [t]o permit a party claiming very substantial damages for loss of enjoyment of life to hide behind self-set privacy controls on a website, the primary purpose of which is to enable people to share information about how they lead their social lives, risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial ). This means that attorneys should actively discuss with their clients what social media sites are used and how best to go about preserving and producing this social media content. C. Candor Toward the Tribunal ABA Rule 3.3 provides: (a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (2).... (3) offer evidence that the lawyer knows to be false.... At all times lawyers should be candid with the tribunal. Lawyers should not play the negotiation game, and treat the judge as just another player in the game. In the negotiation game, the lawyer is never completely candid as candor would defeat the whole point of the game. However, when it comes to ediscovery, the negotiation game must be disregarded. Furthermore, the new ediscovery rules discourage gamesmanship and reward cooperation. Instead, the fundamental values embodied by the Rules of Professional Conduct require candor towards the tribunal: the judges. Candor means openness and complete honesty. As discussed 14

above, the Federal Rules of Civil Procedure impose an obligation to correct and supplement the record. Specifically, Rule 26(e) imposes a duty to seasonably supplement disclosures/amend prior responses. Moreover, Rule 37(c)(1) allows for sanctions for failure to disclose material information or to amend a prior response to discovery. Thus, lawyers must be reasonable, act with common sense and candor. Honesty is a core value that may never be broken under any circumstances. Should that core value conflict with the duty of loyalty to the client, the attorney must withdraw from representation, rather than ever be dishonest to the presiding judge. D. Fairness to Opposing Party and Counsel ABA Rule 3.4 states: A lawyer shall not: (a) unlawfully obstruct another party s access to evidence or otherwise unlawfully alter, destroy, or conceal a document or other material that the lawyer knows or reasonably should know is relevant to a pending or a reasonably foreseeable proceeding; nor counsel or assist another person to do any such act. (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law; (c) knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists; (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.... Another core value set forth in the Rules requires fairness to the opposing party in litigation and fairness to the opposing counsel. This means, among other things, that games of hide-the-ball are forbidden. This does not mean that you should provide evidence harmful to your client that was not requested, or not relevant, or that you are not legally required to produce such as privileged information. But if it was requested, is relevant, and you are legally required to produce it, it is unethical not to do so. If the client refuses to do so, the attorney should withdraw. VI. CONCLUSION In light of the vastly expanded landscape of electronic evidence, attorneys must understand issues relating to ediscovery. More importantly, all attorneys must be prepared to meet the ethical challenges in the new world of ediscovery. By doing so, attorneys can successfully navigate the proper preservation and production of electronic data while avoiding the billion dollar sanctions. 15

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