- The State Bar of California Standing Committee on Professional Responsibility and Conduct formal opinion no. 2015-193 discusses the ethical responsibilities of attorneys in California dealing with eDiscovery issues.
- It uses a hypothetical situation that underscores the need for counsel to be aware of the intricacies of discovery in the modern age.
- The opinion makes clear that an attorney needs to either be sufficiently familiar with eDiscovery and ESI (electronically stored information), or utilize an expert that is capable of advising on the matter.
Recent Case: DR Distributors v 21 Century Smoking.
The same idea of counsel being aware of the details related to discovery and ESI, and ensuring their client is being forthcoming is a theme in the case of DR Distributors v 21 Century Smoking. Lead counsel for the Defendant is described by the court:
“. . . [counsel] understand[s] that ESI should not be affirmatively destroyed and knows to some extent that it must be preserved. Tr. 791-92. But beyond that, he has neither practical experience or understanding of ESI identification, preservation, collection, and production nor any academic training. Tr. 987-90. Indeed, he issued no written litigation hold to Duke. Tr. 749. There is no evidence that [counsel] made a conscious and intentional decision not to do so. Instead, he had limited knowledge as to what a litigation hold was, even after being specifically asked about it by the Court.”
With a description like this it’s no surprise that this matter out of the Northern District of Illinois Western Division, helmed by the Honorable Iain D. Johnston, appears to have run into discovery issues similar to those contemplated by the formal opinion noted above. Although a common issue, this case was unique, if for no other reason than the sheer volume of information supporting the sanctions. The opinion included a three-page table of contents and over 250 pages of content. In it, both client and counsel were taken to task for positions taken during discovery.
In the end, sanctions were issued.
- Defendants were required to conduct a reasonable search for all responsive ESI and produce the responsive material to Plaintiff.
- Defendants were barred from using any information not previously disclosed to Plaintiff.
- Defendants’ expert witnesses were barred from testifying that their opinions would not change had they considered the documents and information that was disclosed late.
- Defendants were barred from contesting that certain parties were performing work for Defendants through thedate the metatag was removed from Defendants’ website.
- The jury will be informed of Defendants’ failure to provide the Counter defendants with the documents they requested.
- Evidence relating to Defendants’ failure to preserve ESI may be presented to the jury hearing Defendants’ counterclaims and the jury will be instructed that “it may consider that evidence, along with all the other evidence in the case, in making its decision.”
- The jury will also be instructed that Defendants had a duty to preserve the spoliated Yahoo! Chats and GoDaddy emails, that the spoliated Yahoo! chats and GoDaddy emails were relevant to the claims in the case, that Defendants failed to take reasonable steps to preserve the spoliated Yahoo! chats and GoDaddy emails, and that the spoliated Yahoo! chats and GoDaddy emails cannot be recovered.
- Defendants and the former defense counsel must pay Plaintiff’s reasonable attorneys’ fees and costs incurred in creating specific docket entries that were derailed because of Defendants’ and the former defense counsel’s discovery failures. Defendants and the former defense counsel must also pay Plaintiff’s reasonable attorneys’ fees and costs for post-hearing briefs. The fees and costs will be paid in the following proportions: Duke to pay 50% and the former defense counsel to pay 50%, with former defense counsel Thomas Leavens paying 80% and former defense counsel Peter Stamatis paying 20% of that 50%.
- The Court also required former defense counsel to complete at least eight hours of continuing legal education (CLE) on ESI.
The footnote in this section indicates that the Plaintiff had already incurred over $800,000 in attorney’s fees for the specific docket entries the Court indicated would be reimbursed and noted that the fees and costs would likely exceed seven figures. That said, the Court wrote that these sanctions were designed to make Plaintiff whole for the injury Defendants and the former defense counsel caused and were proportionally tailored to Defendants’ and the former defense counsel’s actions and inactions. The Court likewise designed the sanctions to deter the type of misconduct found in the order.
This is no doubt a tough pill to swallow for counsel given “. . .the Court was left with the firm conviction that [the client] took advantage of the ineptitude, carelessness, or disinterest of his attorneys.” In the end though, this is exactly the issue being addressed in the ethics opinion noted above. If counsel is not familiar with ESI and eDiscovery, a third party should be engaged to manage those issues to protect counsel and the client from inadvertent mistakes.