Does a lawyer’s obligation to preserve evidence begin at the stage of litigation they’re retained? Attorneys Marie L. Mathews and Brigitte M. Gladis for the malpractice group at Chiesa Shahinian & Giantomasi recently discussed e-discovery malpractice traps and corresponding guidance in the New Jersey Law Journal.
In Industrial Quick Search v. Miller, Rosado & Algois, when the client failed to preserve website versions that were relevant to a copyright claim, the court issued a spoliation sanction in the form of a default judgment. In turn, the client filed a malpractice claim against its counsel for failing to properly advise on preservation obligations and more. The client asked for recovery of judgment and return of fees. The firm argued that it had no duty to advise because these obligations arose prior to it being retained as counsel.
Judge Ramos for the U.S. District Court for the Southern District of New York rejected the firm’s claim and held that an attorney could be found negligent if he or she failed to issue a litigation hold and monitor client compliance. Therefore, the article authors warn attorneys to issue and monitor litigation hold notices to their clients, no matter the stage of litigation they’re retained. The authors share more advice:
“Not only must lawyers advise clients of their obligation to preserve evidence, they must also actively supervise the client’s compliance with such obligations and verify the client’s representations concerning preservation, identification and production of e-discovery.”
While ethical obligations can be incompatible with clients’ budgets and preference to independently conduct preservation, collection, and production, lawyers are “ill-advised” to simply hand over e-discovery obligations and trust a client’s claims on the existence or non-existence of relevant evidence as well as compliance with preservation obligations. The article also notes that lawyers have faced much more severe sanctions in other jurisdictions for failing to verify clients’ e-discovery representations.
Another challenge for counsel is balancing transparency and cooperation, as required by the Federal Rule of Civil Procedure 26(f), with the duty to preserve confidences. The attorney authors advise that a future dispute with a client could be avoided by discussing in advance the “precise facts” to be disclosed in a meet and confer with an adversary related to the discovery plan.
Then there’s the matter of metadata and the “ethical traps” it can raise. The attorneys offer more sound advice:
“[L]awyers receiving e-discovery must be wary of accessing or using metadata produced by an adversary, particularly where the metadata was not requested from or negotiated with the adversary, as production in such a case was likely inadvertent.”
Finally, in order to avoid malpractice claims and questions of ethics, the authors urge vigilance and being proactive around technology developments as well as supervising, verifying and monitoring their clients’ discovery efforts.