Hello everyone and welcome to this Ethics Alert blog which will discuss the recent opinion of the Massachusetts Supreme Court which adopted a stipulation and imposed a public reprimand on a lawyer whose “lack of experience in electronic discovery” resulted in the violation of a court order to preserve digital evidence. The lawyer was found to have violated Massachusetts Bar Rules related to violation of an order of the tribunal, client communication and competence. The opinion is Massachusetts Bar v. Reisman, No. 2013-21 (October 9, 2013). The opinion is at: http://www.mass.gov/obcbbo/pr13-21.pdf
According to the opinion, the lawyer was hired to represent ASI and an employee of ASI in defending civil claims brought by the former employer of the employee and a competitor of ASI called NSA. The employee had resigned from NSA effective September 29, 2006, and had begun employment with ASI on October 1, 2006. Without NSA’s permission, the employee brought an NSA laptop computer to ASI that he had used in his employment at NSA. Between October 1 and October 23, 2006, the employee transferred some files from the NSA laptop to an ASI laptop and then used a scrubbing program to delete all files from the NSA laptop and he returned it to NSA on October 23, 2006.
The trial court entered a temporary restraining order on November 15, 2006 which, inter alia, prohibited the employee from disposing of or using NSA trade secrets or confidential information. The order also required the employee to return to NSA all information that he deleted from the NSA laptop and transferred to any other device. The employee denied that he had transferred any NSA information to any other device and the lawyer filed an answer and counterclaims on December 6, 2006 denying that any proprietary or other confidential information of NSA was uploaded and given to ASI.
On November 17, 2006, without the lawyer’s knowledge, the employee used a scrubbing program to delete some NSA files from the ASI computer. On March 7, 2007, NSA’s counsel sent an e-mail to the lawyer e-mail that NSA would be filing a motion to gain access to his client’s computers and that the lawyer was required to inform the employee and ASI to preserve any documents “that relate to the case,” including any on the employee’s ASI laptop. The lawyer took no action and did not advise employee or his employer not to delete relevant files from the ASI laptop.
NSA filed a motion to compel production of ASI’s computers for forensic examination. On April 12, 2007, again without the lawyer’s knowledge, but on the same day as a hearing on discovery issues, the employee used a scrubbing program to delete files from his ASI computer. After the hearing on April 13, 2007, the trial court ordered that the hard drive be preserved and that NSA’s forensic expert be given access to the employee’s ASI computer. After a further hearing on May 2, 2007, the trial court amended the order to allow the hard drive to be copied but to limit the expert’s examination of the copy to any NSA proprietary or confidential files copied to the computer in September or October 2006.
After the April 13, 2007 order, the employee told the lawyer that there were confidential documents and information on his laptop which was related to ASI and unrelated to NSA and which should not be disclosed to NSA or its expert. The lawyer did not ask about the nature or content of the documents and he also apparently believed that the ASI confidential information was not relevant to the litigation; therefore, notwithstanding the court order, he advised the employee that he could scrub the confidential information from his laptop.
Because of the lawyer’s “lack of experience in electronic discovery, (he) failed to appreciate that the order of April 13, 2007, required the entire hard drive to be preserved for the NSA expert, not just documents obtained from NSA. The (lawyer) advised the employee that he should scrub files unrelated to NSA without first conferring with experienced counsel or conducting research as to his client’s legal obligations and without any attempt to confirm that the materials to be deleted were as represented.” The day before the expert’s examination of the computer, the employee scrubbed additional files from the ASI computer.
On December 6, 2007, after being advised of the series of deletions, the trial court issued a memorandum and order finding that the employee had engaged in spoliation of evidence. The trial court declined to enter a default judgment against the employee, but granted additional discovery and access to the ASI computer for whatever additional analysis that the plaintiff could perform. The lawyer then withdrew from the representation in October 2010 and another lawyer entered an appearance.
The lawyer and Massachusetts disciplinary board lawyer entered into a stipulation of facts and disciplinary violations and a joint recommendation for a public reprimand with attendance within one year at two CLE programs, one on electronic discovery and one on ethics and law office management. The board accepted the parties’ recommendation and imposed a public reprimand subject to the conditions on September 23, 2013 and the opinion adopted the terms of the stipulation.
“The (lawyer’s) advice to his client scrub certain files from the hard drive of a laptop in contravention of a court order constituted unlawful obstruction of another party’s access to evidence, in violation of Mass. R. Prof. C. 3.4(a) (violate an order of a tribunal). The respondent’s failure to adequately communicate to his client his obligations under the court order and the potential prejudice of altering property subject to the court order was conduct in violation of Mass. R. Prof. C. 1.4 (communication). Finally, the respondent’s conduct of handling a matter that he was not competent to handle without adequate research or associating with or conferring with experienced counsel, and without any attempt to confirm the nature and content of the proposed deletions, was conduct in violation of Mass. R. Prof. C. 1.1 (competence).”
In aggravation, “the (lawyer’s) condoning the alteration of the hard drive had the potential to prejudice the plaintiff’s pursuit of discovery, and the client was found to have engaged in spoliation. Much of the spoliation, however, took place prior to the respondent’s advice, and the trial court ultimately found that even assuming that client transferred confidential information to ACI, the plaintiff did not prove that the client’s conduct caused any damages to NSA. In mitigation, the r(lawyer) was relatively inexperienced in the relevant area of discovery practice.”
Bottom line: This lawyer may have been acting in good faith when he acquiesced to (or gave advice to the client to) scrub electronic files in violation of a court order; however, this case again illustrates how a lack of competence related to orders to preserve electronic and digital files can result in the discipline of a lawyer.
Let’s be careful out there!
Disclaimer: this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
2454 McMullen Booth Road, Suite 431
Clearwater, Florida 33759
Office (727) 799-1688
Fax (727) 799-1670