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Archive for the ‘Attorney Liability’ Category

Case Blurb: In re 11th Liab. Ins. Coverage; Attorneys’ obligations in Discovery

Posted by rjbiii on August 10, 2008

Discovery is run largely by attorneys, and the court and the judicial process depend upon honesty and fair dealing among attorneys. Thus the court may impose appropriate sanctions on a party that, without substantial justification, fails to disclose information required by Rule 26(a) or 26(e)(2). A failure to disclose under Rule 37 encompasses both the destruction of evidence, or spoliation, and untimely production of documents and information required to be produced.

In re September 11th Liab. Ins. Coverage Cases, 243 F.R.D. 114, 31-32 (S.D.N.Y. 2007).

Posted in 2nd Circuit, Attorney Liability, Case Blurbs, Duty to Disclose, Duty to Preserve, Duty to Produce, FRCP 26(a), FRCP 26(e), Judge Alvin K. Hellerstein, S.D.N.Y | Leave a Comment »

Case Blurb: R & R Sails; ‘honest mistake’ does not substantially justify failure to produce database records

Posted by rjbiii on June 17, 2008

[Producing Party’s] production of electronically-stored claim log entries on January 8, 2008 demonstrate that Defendant had made incorrect certifications to [Requesting Party] as well as representations to the Court-that [Producing Party’s] production of discovery was complete.

Sanctions under Rule 26(g) must be issued unless violation of the rule was “substantially justified.” [Requesting Party] claims substantial justification for maintaining the position that no claim log was in [Producing Party’s] possession, based on Lombardo’s misunderstanding of the discovery being requested of [Producing Party]. According to [Requesting Party], [Producing Party’s employee] Lombardo failed to recognize that the AEGIS database that he entered notes into contained the “daily activity logs or telephone records” that [Requesting Party] had been requesting.

Lombardo has been an insurance adjuster for twenty-six years and explains that he did not associate the AEGIS database with the claim file that he maintains because “[t]he AEGIS computer system records are kept on a computer system that is separate from my file materials and I do not have a practice of printing them out to put in my file.” [The Producing Party] argues that this “honest mistake” substantially justifies the incorrect certifications made to [Requesting Party], as well as the false declaration provided to [the Requesting Party] in response to this Court’s Order of November 29, 2007. However, to give meaning to the certifications provided on discovery responses, Rule 26(g) requires attorneys or parties to sign their responses “after a reasonable inquiry.” Evidence of such an inquiry prior to January 2007 may provide this Court with justification for the incorrect certifications provided to [the Requesting Party]. Instead, this Court is presented with evidence that Lombardo was maintaining a claim log on his own computer using the AEGIS system while failing to recognize that this log was the same “record/log” being requested by [the Requesting Party]. Lombardo entered notes of a communication with counsel into the AEGIS system on November 16, 2007, immediately prior to counsel’s representation to this Court that such a system was not possessed by [the Producing Party] and close in time to his signing a declaration that no such notes are maintained. The Court cannot find that a reasonable inquiry was made into whether [Producing Party] possessed discovery responsive to [Requesting Party’s] requests, and therefore the Court does not find [Requesting Party’s] incorrect certifications to be substantially justified.

R & R Sails Inc. v. Ins. Co. of Pa., 2008 WL 2232640 at *5 (S.D. Cal. Apr. 18, 2008 ) (internal citations removed)

Posted in 9th Circuit, Attorney Liability, Case Blurbs, Discovery Requests, Duty to Produce, FRCP 26(g), Magistrate Judge Louisa S. Porter, S.D. Cal. | Tagged: , , , , , , | Leave a Comment »

Case Blurb: R & R Sails; FRCP 26(g) Explained

Posted by rjbiii on June 17, 2008

Federal Rule of Civil Procedure 26(g) requires that every discovery response be signed by an attorney and the signature “certifies that to the best of the persons’s knowledge, information, and belief formed after a reasonable inquiry” that the response is complete and correct. This rule is enforced by a mandatory sanction under Rule 26(g)(3), which reads:
If a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both. The sanction may include an order to pay the reasonable expenses, including attorney’s fees, caused by the violation.

R & R Sails Inc. v. Ins. Co. of Pa., 2008 WL 2232640 at *5 (S.D. Cal. Apr. 18, 2008 )

Posted in 9th Circuit, Attorney Liability, Case Blurbs, FRCP 26(g), Magistrate Judge Louisa S. Porter, S.D. Cal., Sanctions | Tagged: , , , , , , | Leave a Comment »

The EDD Hot Potato…lands at Counsel’s feet

Posted by rjbiii on December 16, 2007

We have blogged about the fact that many corporate law departments try laying the responsibility for Electronic Discovery projects at the feet of the IT staff. The post was partly motivated by this article. Yet, and we have mentioned this as well, case law indicates that it is up to the attorneys, and not the IT technicians, to properly manage the process. As Reed Smith’s Janet Kwaon and Karen Wan state in a new article, counsel delegates this responsibility at his or her own peril:

[I]n the current climate, given the interplay between ethical obligations and standards for professional conduct and these e-discovery requirements, attorneys may be surprised to learn that inattention to e-discovery may not only work to the detriment of clients — it may lead to professional malpractice or the imposition of sanctions on counsel.

In other words, pointing the finger at IT may not allow counsel to shift liability. And the problem is, there really is no easy fix:

The duty of a party to locate and produce all materials responsive to discovery and counsel’s oversight obligations are nothing new to the discovery process. What is new, brought on by the staggering volume of data and the complexities associated with their management, is the broad array of possible pitfalls and the ability to reveal mistakes and outright gamesmanship through the often inerasable trail of electronic evidence.

We have noted the complexities associated with electronic discovery before:

[E]lectronic discovery requires an understanding across several disciplines. Law, IT, records management, and compliance are some of those areas of knowledge from which any discovery team should draw. It is difficult for any one individual to have sufficient knowledge across all these areas, so communication between experts from these professions becomes important.

Furthermore, we have also advised readers that the selection of an EDD vendor is a critical point in any complex discovery project:

It is my view that the process used to select a vendor (or vendors) is one of those key points of time in the litigation, with respect to discovery. A thorough vetting of a vendor’s capabilities, technology, experience and reputation is essential to defending that decision in the future should the need arise.

So what can attorneys do to avoid some of the pitfalls of EDD that we have previously spotlighted? Well,

  • Take Discovery seriously. I mean it; stop laughing.
  • Learn the case law. Use our Case Bibliography as a starting point.
  • Understand the basic technical concepts (ask experts you hire, or plan to hire, about their methodologies).
  • Negotiate the 26(f) conference in good faith; and prepare for it as thoroughly as you would for a deposition, or hearing before the judge.
  • In-house counsel should learn the basics of their company’s IT infrastructure; outside counsel should assess both their own clients’ data enterprise, and that of the opposing party.
  • Hire EDD vendors and experts by thoroughly vetting the candidates. Remember, price is not everything.

Oh. One more thing. Read my blog!

Posted in Articles, Attorney Liability, Discovery, EDD Basics, Meet and Confer | Leave a Comment »

Between a rock and a hard place

Posted by rjbiii on October 25, 2007

Electronic discovery can be a complex matter. The discretion given to individual courts, the demeanor of opposing counsel, the difference in procedural rules between circuits, the manner in which the relevant data enterprise is structured, and other factors can make the entire process quite confusing. Throw in international rules that serve to prohibit production, and according to a recent article on, counsel can find himself (or herself) damned if he does (produce) and damned if he doesn’t. The article focuses on the case of Columbia Pictures Industries v. Bunnell, in which not only did a district court judge conclude that data stored in “RAM” was discoverable, but that producing the data was necessary although that doing so was, at least for some of it, prohibited under the law of The Netherlands. From the article:

The defendants had objected to preserving and producing the Internet protocol addresses in part because that would violate the law of the Netherlands, where their servers were located — in particular, the Netherlands’ Personal Data Protection Act. But Chooljian ruled that the defendants still had to preserve and produce the data.

Their argument was undercut by the fact that, due to recent operational changes, the data for U.S. users were apparently on U.S. servers. However, even if the data were overseas, Chooljian concluded that “it was not clear that the Netherlands’ Personal Data Protection Act applies.”

Finally, Chooljian found that even if the Dutch law did prohibit disclosure of the information, it did not deprive the court of its power to order production and preservation of the data.

The article opines that the court’s decision to require the production of data held in RAM will not be followed, but is troubled with the idea that the court’s holding on the production of data despite legal prohibitions on doing so may be more in line with general judicial opinion. These conflicts will become more commonplace because of the international scope of business, developments in digital systems, and increased legislation over such matters as data protection. The article ends with some pointers, which are worth thinking about.

Posted in Articles, Attorney Liability, International Issues, Trends | Tagged: | Leave a Comment »

What are attorneys’ responsibilities concerning their clients’ data enterprising?

Posted by rjbiii on September 9, 2007

I have a few passages concerning this very issue:

Existence of electronically stored information. Prior to the Fed. R. Civ. P. 26(f) conference, counsel should become knowledgeable about their clients’ information systems and their operation, including how information is stored and retrieved. In addition, counsel should make a reasonable attempt to review their clients’ electronically stored information to ascertain the contents, including archival, backup, and legacy data (outdated formats or media). U.S. District Courts (Kan.) Guidelines for Discovery of Electronically Stored Information.

In any case in which an issue regarding the discovery of electronically-stored information is raised or is likely to be raised, the court should encourage counsel to become knowledgeable about their client’s information management systems and their operation, including how information is stored and retrieved. Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information, Conference of Chief Judges (Rev. Draft, Sept. 2005).

It is ultimately counsel’s duty to preserve and gather discoverable ESI. Leonard Dutchman, Preserving Data in the Wake of Amended Rule 37(f), (last visited October 30, 2006).

Counsel has the duty to properly communicate with its client to ensure that “all sources of relevant information [are] discovered.” Phoenix Four, Inc. v. Strategic Resources Corp., 2006 WL 1409413 (S.D.N.Y 2006) (citing Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004)).

To identify all [potential sources or relevant information], counsel should become fully familiar with its client’s document retention policies, as well as its client’s data retention architecture. Id.

Posted in Attorney Liability, Data Management, Duty to Conduct a Reasonable Inquiry | Leave a Comment »