Ethics

Ethical issues presented by ESI.

May 13, 2021

Damage Control Method

Bloomberg Law reports that a company has allegedly mishandled potentially important emails in a 70,000 person class action.  J. Feeley and D. Glovin, “Sanofi Accused of Destroying Emails Tied to Zantac Recall” (Bloomberg May 11, 2021).  The potential spoliator’s response is instructive. In the products liability action, plaintiffs allege that the defendant’s […]
March 16, 2021

Electronic Communications to a Class Action Advertising Web Site Deemed Not Privileged

Top Class Actions (“TCA”) ran a website “that provides information, among other things, about class actions, class action settlements, and class action investigations.”  The site contained attorney advertising and articles concerning class actions and mass torts.  Defendants served a subpoena on TCA seeking, among other things, communications from claimants and with law […]
March 12, 2021

Can a Lawyer Ethically “Reply All” to an Opposing Client?

New Jersey Ethics Opinion 739 (Mar. 10, 2021), again points to the dangers of copying one’s client on communications to opposing counsel. I discussed the ethical dangers of attorneys using “reply all” in a prior post.  If an attorney “cc’s” the attorney’s client on a communication to opposing counsel, what happens when […]
February 12, 2021

“[I]t is no longer amateur hour.”

In a February 11, 2021, post,   Court Enforces Strict Sanctions For Failing To Be Competent In ESI Obligations | Farrell Fritz, P.C. – JDSupra , the author describes the sanctions decision in In DR Distributors, LLC v. 21 Century Smoking, Inc., a trademark dispute over electronic cigarettes, stating: As noted by Judge Johnson, “[i]t […]
January 4, 2021

The Ethical Dangers of Attorneys Using “Reply All”

In a May 2011 post, I discussed Computer Usage Policies and the “Reply All” Button. A recent article has expanded on that discussion.  Erika Stillabower, “The (Ethical) Risks of ‘Reply All’,” The Washington Lawyer (July/August 2020), 54. Ms. Stillabower describes situations where opposing counsel “cc’s” that attorney’s client on an email.  She […]
December 19, 2020

Judicial Postings on Social Media

A few months ago, a Tennessee judge who was going through “a rough time” in his life, was publicly reprimanded for sending inappropriate messages to women on social media platforms. Some of the messages pictured him in a judicial robe.  D. Weiss, “Judge is reprimanded for ‘flirtatious to overtly sexual social media […]
December 1, 2020

When is a Litigation Hold Notice Discoverable?

A recent ABA practice point described Radiation Oncology Servs. of Cent. N.Y., P.C. v. Our Lady of Lourdes Mem’l Hosp., Inc., 2020 NY Slip Op 20133, ¶ 2, 69 Misc. 3d 209, 126 N.Y.S.3d 873, 875 (Sup. Ct.) (decided June 9, 2020) (Masler, J.). In Radiation Oncology, the court addressed when a litigation hold […]
November 28, 2020

The Duty to Preserve Continues Even After Production of Social Media

In Faulkner v. Aero Fulfillment Services, 2020 WL 3048177 (S.D.Oh. June 8, 2020), the court held that deactivation of a LinkedIn site after it had been downloaded and produced breached the duty to preserve that ESI.  However, the sanction was limited to an admonishment due to the absence of prejudice. The problem […]
November 27, 2020

Rule 26(g) Sanctions for Failure to Supervise Document Collection and Review

In Optronic Tech, Inc. v. Ningbo Sunny Elec. Co., Ltd., 2020 WL 2838806 (N.D. Cal. June 1, 2020), sanctions were imposed against defense counsel, essentially because the court determined that trial counsel had attempted to hand off their Rule 26(g) obligations to their client’s inside counsel. There were several key points.  Defense […]
May 12, 2020

Publication of M. Berman, et al., eds., ELECTRONICALLY STORED INFORMATION IN THE MARYLAND COURTS (2020)

I am pleased to announce the publication by the Maryland State Bar Association of M. Berman, et al., eds.,  ELECTRONICALLY STORED INFORMATION IN THE MARYLAND COURTS (2020). This book is intended as a practitioner’s handbook addressing primarily – but not exclusively – how ESI is addressed in Maryland State courts, comparing and […]
July 30, 2011

American Bar Assoc., Publishes Berman, et al., Managing E-Discovery and ESI

The American Bar Association has  published M. Berman, C. Barton, and P. Grimm, eds., Managing E-Discovery and ESI: From Pre-Litigation Through Trial.  The 761-page work features chapters by The Hon. Paul W. Grimm (D.Md.), The Hon. John M. Facciola (D.D.C.),  The Hon. James C. Francis IV (S.D.N.Y.), and The Hon. Joseph F. […]