Ethics

Ethical issues presented by ESI.

November 16, 2023

ABA Formal Opinion on Misconduct in Virtual Depositions

My legal ethics professor said that the best thing is to do the right thing for the right reason.  The next best thing is to do the right thing for the wrong reason. Surreptitiously feeding your client answers to deposition question in a remote deposition should be avoided because it is wrong.  […]
November 13, 2023

Michigan Ethics Opinion Requires Judicial Technological Competence

Emma Cueto reports that the Mich. State Bar Says Judges Ethically Must Keep Up With AI – Law360 (Nov. 9, 2023); see Ethics Opinion: Judges Must Keep up with Advancing Technology (michbar.org).  The full ethics opinion is posted at Ethics Opinions Search Detail (michbar.org). I don’t think it is a good idea, […]
November 10, 2023

“Self Help” Discovery in Someone Else’s Dropbox is Held to be Sanctionable

“A trial-level judge in New York has sanctioned [attorneys’ name deleted] for ‘rummaging’ through the Dropbox of its litigation opponent after a third-party vendor accidentally revealed the link in discovery.” D. Cassens Weiss, Unauthorized ‘rummaging’ through opponent’s Dropbox leads to sanction against this law firm (abajournal.com)(Oct. 9, 2023); see also M. Laus, […]
October 26, 2023

“Florida bar weighs whether lawyers using AI need client consent”

“Florida lawyers might soon be required to get their client’s consent before using artificial intelligence on their legal matters.”  Karen Sloan, “Florida bar weighs whether lawyers using AI need client consent | Reuters (Oct. 16, 2023).  Ms. Sloan’s article reports that “Florida looks to be the first jurisdiction considering a consent rule […]
October 4, 2023

Bob Dylan Awarded Discovery Sanctions After Dismissal of Tort Claims

“The Court awards sanctions in the amount of $5,000 against [Attorney No. 1] and $3,000 against [Attorney No. 2], payable to” Bob Dylan.  J.C. v. Robert A. Zimmerman a/k/a Bob Dylan, 2023 WL 6308493, at *12 (S.D.N.Y. Sept. 28, 2023); P. Hayes, Bob Dylan Awarded Sanctions in Dismissed Sexual Assault Case (bloomberglaw.com)(Sept. […]
September 27, 2023

A Review of Sedona’s “Artificial Intelligence (AI) and the Practice of Law” by The Hon. Xavier Rodriguez

“Artificial Intelligence (AI) and the Practice of Law,” by the Hon. Xavier Rodriguez, is available at 24 Sedona Conf. J. 783 (forthcoming 2023).[1]  The article focuses on issues that “practicing attorneys are likely to encounter and steps state bars and related entities should consider.” Id. at 786.  Sedona’s website states: Judge Rodriguez […]
September 7, 2023

Ethical Contours of Discovery Sanctions and the Duty to Cooperate

Craig Brodsky has written Taking discovery obligations seriously – Maryland Daily Record (thedailyrecord.com)(September 6, 2023).  The article explains the application of the Maryland Attorneys Rules of Professional Conduct (“MARPC”) to the discovery rules, cites recent Maryland case law, summarizes the sanctions in Freeman v. Giuliani,[1] and concludes that full and timely discovery […]
July 5, 2023

Relevance Redactions Revisited

The issue of whether irrelevant material in a relevant document can be redacted when the document is produced in discovery has long been a hot topic.  See, e.g., Relevance Redactions Rejected – Rule 26(f) Resolution – E-Discovery LLC (ediscoveryllc.com)(Mar. 23, 2022).  In that blog, I suggested that negotiation is the best solution. […]
May 24, 2023

The Maryland Rules Committee Has Recommended Several Discovery Amendments

The Maryland Standing Committee on Rules of Practice & Procedure (“Rules Committee”) met on May 19, 2023, and recommended a number of changes to the Maryland Rules.  This blog is limited to proposed changes related to formal and informal discovery. MARYLAND IS ONE-STEP CLOSER TO ABANDONING THE “SAFE HARBOR” Maryland is one […]
May 18, 2023

Book Review:  Phil Favro’s “Selected eDiscovery and ESI Case Law from 2022-23″

Phil Favro and The Sedona Conference have released “Selected eDiscovery and ESI Case Law from 2022-23” (2023).  This is a sequel to Phil’s 2021-22 publication.  I wrote that the prior book was “an excellent resource in an always-changing field.”[1] As in the prior work, Phil’s new publication runs the gamut of topics […]
May 7, 2023

ESI 101:  Don’t Spoliate Evidence That’s Been Photographed

The key takeaway from G.H. Le Doux v. Western Express, Inc., 2023 WL 2842777 (W.D. Va. Apr. 7, 2023), is don’t spoliate evidence when your opponent has a photograph of it. While the Le Doux defendant “succeeded in destroying a considerable amount of ESI,” in the words of The Hon. Paul W. […]
April 17, 2023

Recent “Textbook” Analysis of Fed.R.Civ.P. 37(e)

Government Employees Health Assoc. v. Actelion Pharmaceuticals, Ltd., __ F.R.D. ___, 2023 WL 316578 (D. Md. Jan. 19, 2023)(Coulson, J.), provides a textbook application of Fed.R.Civ.P. 37(e) in an antitrust lawsuit with a complex fact pattern. The Court rejected Rule 37(e)(2) sanctions and engaged in a sophisticated analysis to fashion Rule 37(e)(1) […]
April 16, 2023

Lawyers, Not Law Firms, Must Pay Sanctions

A recent article, Josephine M. Bahn, Individual Lawyers—Not Firms—Must Pay Discovery Sanctions (americanbar.org)(Jan. 20, 2023), describes a Sixth Circuit decision, NPF Franchising, LLC v. SY Dawgs LLC, No. 21-3516 (June 15, 2022), holding that individual attorneys – not their law firms – were jointly and severally liable for discovery sanctions.  The opinion states […]
April 12, 2023

“Juror’s Cellphone Not Subject to Search”

Cell phones have led to thorny legal issues.  For example, in Juror’s Cellphone Not Subject to Search (americanbar.org)(Feb. 21, 2023), Steven B. Chaneles, wrote that, in response to a post-verdict challenge:  “A federal appeals court ruled that a trial judge has no authority to order a search of a juror’s cellphone….” The […]
April 6, 2023

Candor Pays Off When It Comes to Alleged Spoliation: Notice + Accrual = Claims Bar

Nicassio v. XYZ Law Firm, 2023 WL 2661156 (Apls. Ct. Md. Mar. 28, 2023)(unreported), demonstrates the wisdom of candor when it comes to potential spoliation.[1] It also reinforces the well-established need to periodically remind custodians of their duty to preserve potentially responsive information. Litigation often drags on long after issuance of an […]
March 15, 2023

Sua Sponte Dismissal Relying in Part on Fed.R.Civ.P. 41(b)

In Gunter v. Alutiiq Advanced Security Systems, LLC, 2023 WL 2330707 (D. Md. Mar. 2, 2023)(Rubin, J.), the Court relied in part on Fed.R.Civ.P. 41(b) to dismiss a litigant’s lawsuit for failure to comply with the Federal Rules of Civil Procedure.  The case involved egregious[1] misconduct that included fraud on the Court, […]
March 9, 2023

“Civil Vigilantism” – Sanctions for Surreptitious “Self-Help” Investigation

Taken together, the following three cases demonstrate that surreptitious “self-help” to obtain evidence from an opponent outside of the discovery process, even if it occurs prior to commencement of an action, is – at a minimum – imprudent. In Cruse, alleged hacking resulted in disqualification of counsel who used the fruits of […]
March 7, 2023

Maryland Supreme Court Reiterates Duty to Cooperate in Decision Suspending Attorney

The decision in Attorney Grievance Comm’n. of Md. v. Sloane, __ Md. __ (Mar. 2, 2023), covers many issues.  The respondent attorney was suspended from the practice of law in Maryland with the right to apply for reinstatement after six months.  Much of the sanction was due to discovery misconduct in a […]
December 16, 2022

Managing Small Cases – Excellent Sedona Conference Resource

The Sedona Conference recently published a public comment version of its “Primer on Managing Electronic Discovery in Small Cases” (Dec. 2022). There has long been an interest in low-cost technology. For example, two decades ago, I wrote “Low Cost Litigation Technology” (Md. Bar Journal Nov./Dec. 2000).  Similarly, Craig Ball has blogged about […]
November 12, 2022

Is There a Duty to “’Fess Up?” – Part II

If a litigant has actual knowledge that an opponent’s proposed search terms will not “hit” on responsive, proportional ESI, does the litigant have a duty to tell the opponent?[1] In Advanced Magnesium Alloys Corp. v. Dery, 2022 WL 3139391 (S.D. Ind. Aug. 5, 2022), the plaintiff, Advanced Magnesium, alleged that defendant Dery conspired […]
November 9, 2022

New ABA “Reply All” Ethics Opinion

A new ABA Ethics Opinion addresses the “reply all” conundrum. The issue arises when sending counsel copies their client on an email and receiving counsel replies to all persons on the email.  That is a communication by receiving counsel to sending counsel’s represented client. ABA Formal Opinion 503 states that, when sending counsel […]
September 26, 2022

Pouncing on Little Ambiguities Leads to Discovery Sanctions

A recent ABA article describes a court sanctioning a litigant for pouncing on “any little ambiguity” to obstruct discovery and delay production of “obviously responsive materials.”  Debra Cassens Weiss, Judge criticizes [law firm name omitted] and [litigant’s name omitted] for alleged effort to ‘obstruct and delay’ discovery (abajournal.com) (Sep. 16, 2022).  According […]
August 28, 2022

Some of the Perils of Group Texts and “Reply All” Emails

Kathryn Rubino’s post, Attorney’s Group Text Goof Leads To Mistrial – Above the Law (Aug. 22, 2022), describes what happened when a prosecutor sent a group text to a group of prosecutors. The group text criticized a judge’s ruling excluding evidence: “Regrettably for [attorney’s name omitted], Judge [name omitted] — a former prosecutor […]
August 14, 2022

Hit Reports

“Hit reports” have various names.[1]  One issue that has often arisen is whether a producing party must produce every document on a hit report requested by an opponent, even if irrelevant or nonresponsive to discovery requests.  Craig Ball has blogged on this issue since 2013.  However, his recent blog explains that “the […]
August 6, 2022

Possible Additional Fallout From Alex Jones Cell Phone Disclosure

Bloomberg Law reports: Two attorneys for Alex Jones could potentially face discipline for wrongfully releasing the medical information of plaintiffs in a case accusing the InfoWars host of defaming them, Connecticut court filings show. … On Thursday, the Superior Court for the Judicial District of Waterbury ordered two of Jones’ attorneys, Andino […]
June 23, 2022

Alleged “Win-At-All-Costs” Tactics in Defense of Exoneree Lawsuits for Wrongful Conviction Damages

Two recent articles describe alleged “win-at-all-costs” tactics in defense of wrongful conviction lawsuits in Baltimore and Chicago.  They point to, on the one hand, allegations of damages claims for unreasonable amounts by exonerees and, on the other, alleged scorched earth defenses costing millions of dollars and subjecting exonerees to unreasonable indignity. I […]
June 22, 2022

Secret Moonlighting, by Attorney in Plaintiff’s Law Firm, as a Document Reviewer for Defendant, Does Not Result in Disqualification of Plaintiff’s Firm

In Troyce Manassa v. National Collegiate Athletic Association, 2022 WL 2176334 (S.D. Ind. June 16, 2022), a motion to disqualify counsel was denied.  Plaintiffs are represented by the law firm of “FeganScott.”  They sued the NCAA. “Upon learning that a FeganScott staff attorney moonlighted as a document reviewer for the NCAA in […]
May 20, 2022

Sanctions for Discovery Misconduct

The ABA reports that a Judge criticizes ‘nasty litigation tactics’ while sanctioning BigLaw firm (abajournal.com)[1]  Sanctions were based on statements the court deemed to be untrue and deposition conduct the court deemed to be unprofessional and rude.[2] The court wrote: After considering all the evidence and arguments, I find that Stryker failed […]
April 29, 2022

Deposition Errata Pages in Maryland

An excellent article by Brian A. Zemel, All Things Errata (americanbar.org)(ABA Apr. 19, 2022), addresses the scope of changes a deponent may make to an errata sheet. He explains: If the deponent’s submission is procedurally valid, counsel should then determine whether the witness’s changes were substantive and whether the jurisdiction permits such changes. […]
April 29, 2022

“Friending” by Undercover Police Officer

Much has been written about “friending,” especially deceptive friending or friending of represented parties, in the civil litigation context. For example, under Philadelphia Bar Association Professional Guidance Committee Opin. 2009-02 (Mar. 2009), an attorney or those supervised by the attorney may not use deceptive conduct to access an unrepresented person’s social media […]
April 27, 2022

Proposal to Lift Geographic Limits on Practice of Law – Implications for ESI

The ABA recently reported on a proposal that Lawyers should be able to practice law in any state, says group urging ABA model rule change (abajournal.com). The proposal appears especially well-suited to ESI.[1] The author, Debra Cassens Weiss, reports that “[t]he proposed rule change by the Association of Professional Responsibility Lawyers emphasizes the concept […]
April 21, 2022

Sedona Conference “Selected eDiscovery and ESI Case Law from 2021-22”

Philip J. Favro, Esq., has edited the just-published “Selected eDiscovery and ESI Case Law from 2021-22” (The Sedona Conference 2022).  This is an excellent resource in an always-changing field. Phil’s work runs the gamut of topics, including cooperation, ephemeral messaging, ESI protocols, ethics, Fed.R.Evid. 502(d), privilege logging, redactions, litigation holds, social media, […]
April 15, 2022

Attorney’s Duty to Protect Smartphone Data

“An attorney who stores the confidential identity of their clients on a smartphone must not consent to share contact information with an app unless that information won’t be shared with any human, the New York State Bar Association said.” D. McAfee, New York Bar Outlines Attorneys’ Duty to Protect Smartphone Data (bloomberglaw.com) (Apr. 13, […]
April 10, 2022

Ethics: More Remote Misconduct

I have written about Misconduct in Remote Trials and Misconduct in Remote Depositions. In the words of Yogi Berra, “it’s deja vue all over again.”  Improper Texting During Remote Testimony Can Result in Significant Consequences to Litigants and Lawyers | Publications | Insights | Faegre Drinker Biddle & Reath LLP. Traci McKee […]
March 31, 2022

40th State Adopts a Duty of Technological Competence – Is It a Good Idea?

Although the ABA’s “technological competence” standard is a good “first step,” it could be improved.  Simply telling attorneys “be competent” – – with no further guidance or implementation – – does little to advance the ball.  Several articles make this point and suggest the need for additional specificity, education, and greater emphasis […]
February 5, 2022

Ethics: Misconduct in Remote Trial

I recently wrote a blog Ethics: Misconduct in Remote Depositions. The ABA Journal has provided an example of misconduct in a virtual trial.  D. Weiss, “Lawyer is suspended for coaching client using chat function during virtual trial” (ABA Journal Feb. 1, 2022).  Ms. Weiss reports that: “An Arizona lawyer has consented to a two-month […]
December 9, 2021

“Old” Sedona Paper Implements the “Specificity” Provision of Discovery Responses

In New Sedona Primer Implements the “Bull’s Eye View” of Discovery Requests, I discussed the recent “public comment” version of Sedona’s Primer on discovery requests.  Here, I discuss Sedona’s 2018 “Federal Rule of Civil Procedure 34(b)(2) Primer: Practice Pointers for Responding to Discovery Requests,” 19 Sedona Conf.J. 447 (2018), in conjunction with […]
December 8, 2021

New Sedona Primer Implements the “Bull’s Eye View” of Discovery Requests

The Sedona Conference has released its “Primer on Crafting eDiscovery Requests with ‘Reasonable Particularity’” (Nov. 2021, Public Comment Version). The Primer is a valuable contribution.  It gathers a substantial body of research in an easy-to-read, authoritative resource.  It focuses entirely on discovery requests, not responses, and does so in depth.  And, it […]
November 29, 2021

Ethics: Misconduct in Remote Depositions

This blog addresses two remote deposition issues: 1) coaching by text messages; and, 2) coaching behind a COVID face mask. “A Florida lawyer has been suspended for 91 days for texting advice to a witness during a phone deposition and then failing to come clean when questioned by the opposing counsel and […]
November 28, 2021

Sanctions: Litigant Recently Testified That He Did Not Know What a “Litigation Hold” Was

Sanctions were imposed in DG BF LLC v. Ray, No. 2020-0459 (Del. Ch. Nov. 19, 2021).[1] The court dismissed a fraud and retaliation lawsuit for discovery abuse.  Among other issues, plaintiff testified that he did not know what a “litigation hold” was, even though defendants sent a preservation demand to him. It […]
November 28, 2021

Sanctions for: Failure to Impose a Litigation Hold; and, for Removing Zoo Animals After Notice of Inspection and Without Cooperative Communications

Collins v. Tri-State Zoological Park of Western MD, Inc., 2021 WL 5416533 (D. Md. Nov. 19, 2021), centers on allegations that defendants maintained a public nuisance by the neglect and ongoing mistreatment of animals residing at defendants’ zoo. On the spoliation issue, “Plaintiffs allege … that Defendants not only failed to issue […]
August 27, 2021

Waiver of Work Product Protection in Deposition Preparation Sessions

In Johnson v. Baltimore Police Dept., 2021 WL 1985014 (D. Md. May 18, 2021) (Boardman, J.), the Court addressed waiver of work product protection by showing documents to a third-party witness in deposition preparation. Twice before the deposition, plaintiff’s counsel showed three documents, several photographs, and one audio file to the deponent.  […]
July 23, 2021

Plaintiff Sanctioned for Spoliation of Automobile Engines Due to Inadequate Implementation of Litigation Hold

In Hyundai Motor Amer. Corp. v. N. American Automotive Svcs., Inc., et al., 2021 WL 3111191 (S.D. Fl. Jul. 22, 2021), sanctions were imposed against the plaintiff, Hyundai Motor America Corp. (“HMA”). At bottom, HMA failed to follow basic, well-established procedures to implement a litigation hold, and crucial evidence then went missing.  […]
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. […]