e-Discovery Team ®

For Part One, see here.

Ethical Analysis of the Hypothetical

What ethical considerations and rules or professional conduct come into play in this scenario? Let us analyze the facts of the hypothetical one rule at a time and consider the impact of all six of the key rules: Rule 1.1 – Competence; Rule 1.3 – Diligence; Rule 1.6 – Confidentiality; Rule 3.2 – Expediting Litigation; Rule 3.3 – Candor Toward the Tribunal; and, Rule 3.4 – Fairness to Opposing Party and Counsel.

Competence. The competency issue here is critical, as it is in most ethical considerations. One party here, the plaintiffs’ counsel, does not really understood e-discovery. For instance, they did not really understand many of the technical reasons behind defendant’s position, such as deduplication and email copies throughout the system, nor the sampling disclosures. They did not understand the benefits of phased discovery and going first for the low hanging fruit, the emails of the best key custodians.

They did not cooperate in e-discovery because they did not know how. They probably had never even seen the cooperative model in action before, and so when they saw it here, they did not recognize it. They may instead have mistaken it for weak or timid opposing counsel. It just provoked them to be more caveman like. They got more aggressive in the face of the unknown. They also ran away from any real discussion on technical issues. A classic case of the fight or flight instincts of a pre-computer-literate-lawyer faced with e-discovery.

Plaintiffs’ counsel in this hypothetical did not trust the other side because they assumed they were like them. They were not competent enough to recognize or understand the new approach. They only understood “cooperation” from the outside, as just another tool, or keyword, in the game of hide-the-ball. They certainly had not read Professor Gensler’s article and had no understanding at all on how the new cooperative, trans-negotiation model might help their clients. In Professor Genzler’s words:

The Cooperation Proclamation is exactly right when it urges lawyers to see cooperation as a means for advancing their clients’ interests and not as a retreat from their duties as loyal advocates. As I have written elsewhere, the lawyers who default to battle mode in discovery – who fail even to consider whether cooperation might yield better results – are the ones who truly fail to serve their clients’ interests.

The Bull’s-Eye View of Cooperation in Discovery, 10 Sedona Conf. J. 363, at 363 (2009 Supp.)

They had also not read the article by the Sedona Conference making the legal case for cooperation, The Case for Cooperation, supra. The editor-in-chief of this article was well-known plaintiff’s counsel, William P. Butterfield. The concluding paragraph of The Case for Cooperation succulently warns of what may happen to our system of justice if the new cooperative model to discovery is not adopted:

If parties are expected to continue to manage discovery in the manner envisioned by the Federal Rules of Civil Procedure, cooperation will be necessary. Without such cooperation, discovery will become too expensive and time consuming for parties to effectively litigate their disputes.

The Case for Cooperation, Id. at 362.

Plaintiffs’ counsel here did not even seem to understand what most truly competent plaintiff’s counsel do, that every dollar spent on useless discovery is another dollar not available for settlement. The best, most competent counsel have always saved their powder for the real battles that count, on the law and application of the law to the facts. They have always understood that the true, and only valid purpose of discovery is to get at the key facts to allow reasoned evaluation of the case, not to prepare mountains of data, or extort the responding party, or bury the requesting party in a document dump. Competent legal counsel do not engage in discovery as abuse.  Those that do soon develop a reputation that follows them into a court room, even if it is on the other side of the country of where they usually practice. See Discovery As Abuse, 69 B.U. L. REV. 635 (1989). As the Sedona Conference noted, the “risk of gaining a reputation among the judiciary as unduly combative during discovery, encourages cooperative behavior.” The Case for Cooperation, supra at pg. 362.

The only possible conclusion here is that Plaintiffs’ were not competent to handle the e-discovery issues in this class-action employment case. For that reason alone, under this scenario they behaved unethically. They violated Rule 1.1.

Many attorneys in this situation attempt to meet their ethical obligation of competence by hiring an e-discovery vendor to advise them. Unfortunately, this usually does not work, for such experts frequently only tell the attorneys who hired them what they want to hear. The hired guns simply supply arguments jazzed up with tech-speak to support the legal argument of the attorneys who hired them.

In any event, e-discovery vendors are technologists, not lawyers, and even when a rare e-discovery expert at a vendor does also have a law degree, they do not provide legal advice. They are not allowed to provide legal advice. The only way an attorney who is not competent in the law and practice of e-discovery can fulfill their ethical duty is by taking the time and considerable efforts needed to become competent, or by bringing in legal counsel who is competent to assist him or her. Vendors cannot do that. They cannot render legal advice, but I appear to be the only one pointing out that obvious fact. See EDRM Model Code of Conduct. In fact, the EDRM proposed vendor ethical code of conduct, Principle 4 – Sound Process, seems like it encourages vendors to provide legal advice: “Service Providers should define, implement and audit documented sound processes that are designed to preserve legal defensibility.” This is a gray I know, but I strongly encourage the experts who are involved in this EDRM project to carefully consider the whole UPL issue and clarify draft Principle 4 and its comments on legal defensibility. By the way, except for my issue with Principle 4 and UPL, I am favorably impressed with the proposed model e-discovery vendor ethics guidelines that EDRM has come up with and encourage all vendors to study it carefully.

Diligence. Plaintiff’s counsel here thought they were being diligent because they were engaging in what they saw as vigorous advocacy. Too bad they were playing the wrong game. True vigorous advocacy here would have entailed detailed examination of the reasons provided by defense counsel for the five custodians and seven issues. It would have required reciprocal disclosures on their part on their thinking and analysis of the importance of the various custodians to the case. Diligence would have required immediate study of the emails produced. It would have taken the dispute out of rhetoric and knee-jerk opposition to everything the other side proposes, and into the facts and legal analysis.

Plaintiffs’ counsel in this scenario was not diligent at all. Their incompetence made that impossible. They thought they were being very diligent, and no doubt so did their clients, who are usually very easily impressed by the kind of saber-rattling in which they engaged. But in fact they did all of the wrong things.  They engaged in knee-jerk opposition to everything the other side proposed, and this pretend diligence was really not diligent at all. Discovery as abuse is not an exercise in competent diligence. It is abuse, pure and simple.

Confidentiality. Plaintiffs’ counsel here thought they were being very ethical by refusing to disclose their work product. They would not give the defendant an idea on their thinking of the case, on what information they thought would be highly relevant. They would not disclose why they thought some custodians and issues were more important. That was their confidential thinking, and they thought they should keep it secret. They hoped to keep their analysis of the case (assume they had one, and this was not just a superficial form-driven lawsuit) to themselves. They wanted to surprise defendants as much as possible. Indeed, they were initially surprised by how much confidential information the defense counsel here provided, which, again, they mistakenly mistook as a sign of weakness and egged them on to keep demanding more and more. Then they were surprised again when defense counsel said no, and never budged from the initial 5/7. And finally were surprised again by the court ruling against them and went with the defense plan.

So which attorneys in this scenario met their ethical duty under Rule 1.6 to “not reveal information relating to the representation of a client” and which did not? Rule 1.6 has numerous exceptions to the duty of client confidentiality, including where the client gives informed consent or the “disclosure is impliedly authorized in order to carry out the representation.”

Here the disclosure by defense counsel was needed to carry out the representation and so impliedly authorized, even if not specifically authorized. Note that under the scenario no attorney-client privileged documents are disclosed, nor any privileged communications. Even client confidential documents are protected under a strong confidentiality order. Any non-relevant documents produced would also be covered by the confidentiality order and would be promptly returned. Further protection was provided by a strong clawback order.

The only confidential information disclosed here is some of the work-product privileged thinking and analysis of defense counsel. Unlike the attorney-client privilege, which is held by the client and can only be released by the client, the work-product privilege is held by the attorney, and released by the attorney. The disclosure of the attorney’s work product was made here to advance their client’s interests. It was made to facilitate efficient, cost-effective search and production, and later to obtain a protective order preventing unduly burdensome, disproportionate e-discovery. This kind of disclosure does not violate defense counsel’s duties under Rule 1.6.

My conclusion is based on an understanding of how work product privilege waiver is different from attorney-client privileged waiver. It does not automatically open up the door for further inquiries as attorney-client waiver might do. My thanks to Professor Mark S. Sidoti, who is part of Professor Hamilton’s excellent email discussion group for e-discovery professors, full-time and adjunct. Professor Sidoti, whose day job is at Gibbons, pointed out a key case in this area, Williams & Connolly LLP v. U.S. Securities and Exchange Commission, 2010 U.S. Dist. LEXIS 78570 (D.D.C. Aug. 4, 2010):

The work product doctrine protects both deliberative materials such as mental impressions, conclusions, opinions, and legal theories and factual materials prepared in anticipation of litigation. *** In his declaration in support of summary judgment, David Frohlich, an Assistant Director in the SEC’s Division of Enforcement, explains that the handwritten notes sought by Plaintiff were generated during the Cendant investigation in anticipation of litigation with Mr. Corigliano, Mr. Kearney, and others. Plaintiff does not dispute this statement and concedes that these documents qualify as attorney work product. However, Plaintiff contends that the SEC has waived any work product privilege with respect to these documents because similar handwritten notes were disclosed to Plaintiff during the criminal prosecution of Mr. Forbes. According to the declaration of Christopher R. Hart, an attorney at Williams & Connolly LLP, at least eleven of the documents of handwritten notes identified in the Vaughn index were produced by the government during the Forbes matter. Plaintiff thus contends that the government has “waived the work product privilege as to entire subject matter of handwritten notes between SEC staff and Corigliano, Kearney, or their respective counsel.”

As with the attorney-client privilege, a party may waive the work product privilege through disclosure. See In re United Mine Workers of Am. Employee Benefit Plans Litig., 159 F.R.D. 307, 310 (D.D.C. 1994) (“It seems . . . clear in this Circuit that the disclosure of documents protected by the attorney work product privilege waives the protections of the attorney work product privilege as to the documents disclosed.”). However, “the test for waiving attorney work product protection is more stringent than the test for waiving attorney-client privilege.” Goodrich Corp. v. U.S. Envtl. Prot. Agency, 593 F. Supp. 2d 184, 191 (D.D.C. 2009). Although disclosure of documents waives attorney-client privilege with respect to all other communications related to the same subject matter, the scope of “subject matter waiver” with respect to work product materials is more limited. “[A] subject-matter waiver of the attorney work product privilege should only be found when it would be inconsistent with the purposes of the work product privilege to limit the waiver to the actual documents disclosed.” “Several factors figure into the analysis: whether disclosure was intentional or inadvertent, the breadth of the waiver sought, and the extent to which the requested documents would reveal litigation strategies or trial preparations.” (emphasis added)

The law provides greater protection to work-product waiver and so the disclosures made in the hypothetical should leave defense counsel protected from any further unwanted intrusions. Also see Rule 502 Federal Rules of Evidence, and note that our hypothetical assumes a strong confidentiality and clawback order under Rule 502(d).

As for the conduct of plaintiff’s counsel, it may surprise you to know that I do not conclude they have violated Rule 1.6. I must conclude that plaintiffs stonewalling actions in this case are also consistent with Rule 1.6. Although their behavior in this hypothetical was unethical under the other rules here considered, it was not under Rule 1.6. They have the right to keep all of their work product to themselves, even though it was stupid to do so, and thus a probable violation of Rule 1.1 on competence, but it is was their work-product. Of course, no rule should be considered in isolation, and work-product thinking is required to be disclosed under many rules of civil procedures, including especially Rule 26(f), and any time you are seeking relief from the court, or making final preparation for trial, not to mention trial itself.

In the same professorial discussion group my esteemed LegalTech debating adversary, Professor Craig Ball, had this to say concerning the policy behind limited work product disclosures, starting with a comment on pre-digital paper productions:

You may argue that we never got to look behind a lawyer’s decisions to produce or withhold even if the lawyer made the selections by throwing documents down the stairs and producing only what hit the next landing. But perhaps that’s not an approach we want to replicate in post-digital practice. We indulged ourselves in the belief that, right or wrong, relevance and privilege determinations were a lawyer’s to make and largely immune from being second-guessed absent evidence of gross dereliction or misconduct. But, as we move into the realm of search technology–and especially those like keyword search only lately appreciated to be deeply flawed–the tools and methods employed must be closely examined and tested, including by exposing them to adversarial challenge.

Perhaps we need to step away from our reflexive “we are lawyers and we are special,” in order to consider what approaches are calculated to best serve the ends of justice. Cooperation demands communication. If you believe the first is more than a pipe dream, you need to embrace the latter.

I have to agree with Craig on this one. Opposing counsel need to talk with each other and explain what they are doing in the area of search and production. You do not have to give up all your trade secrets, nor reveal all of your strategies, but you have to be prepared to disclose enough to show your reasonable, good faith efforts. What does cooperation look like? It looks like lawyers talking and making mutual disclosures needed to plan discovery in a case.

Expediting Litigation. The conduct of plaintiffs’ counsel here violated their duty to expedite litigation. They did so in spite of the fact that expedited litigation is almost always consistent with a plaintiff’s interest in a civil proceeding for a speedy trial. Plaintiffs’ counsel here unethically violated this duty to expedite by forcing unnecessary motion practice. Further, the closed approach of plaintiffs’ counsel to try to conceal the facts they really wanted in discovery probably also violated Rule 3.2, even of it did not violate Rule 1.6. See eg. DeGeer v. Gillis, 755 F. Supp. 2d 909, 930 (N.D. Ill. 2010) (if parties had participated in “candid, meaningful discussion of ESI at the outset of the case,” expensive and time consuming discovery and motions practice could have been avoided).

Candor Toward the Tribunal. I think the conduct of plaintiffs’ counsel in this hypothetical violated this fundamental Rule of Professional Conduct too, but admit their violation might be seen as technical, and is certainly the kind of conduct that goes on every day and is tolerated by both Bench and Bar. Plaintiffs’ counsel here did not “make a false statement of fact or law to a tribunal … or, offer evidence that the lawyer knows to be false.” But they did not provide the whole truth either. They made a demand in their motion to compel for 30 custodians and 30 issues, and they continued in this demand at the hearing before the tribunal. Let us assume that they also made oral representations to the judge at a hearing that they thought this 30/30 demand was necessary and appropriate under the facts of the case and governing law. But that is at best a half-truth because they have been willing all along to accept 20/20.

For that reason they did not display the kind of candor to the tribunal that I personally think is appropriate. Instead, they continued to play the only game they knew how, the negotiation game, and they treated the judge as just another player in the game. In a negotiation game, you are never completely candid. That would defeat the whole point of the game. If plaintiff’s counsel here were in fact candid to the tribunal, they would admit that 20/20 is their goal, but then again, that could be a slippery slope for them. It could also lead to admission of their basic incompetence to do e-discovery to begin with, to engage in meaningful discussion and analysis, much less to enter into a true cooperative dialogue with the other side.

Fairness to Opposing Party and Counsel. Some attorneys are surprised when they see the terms of this important Rule of Professional Conduct.  Candor to the tribunal is one thing, but fairness to the opposing party and their attorneys? That is simply not part of the culture of many lawyers and law firms! They seem surprised when they are reminded that the requirement is built into our rules of ethics. It is not a mere professional courtesy, as some think, it is an ethical imperative. Under Rule 3.4 a lawyer shall not “unlawfully obstruct another party’s access to evidence.” A lawyer shall not “conceal a document or other material that the lawyer knows or reasonably should know is relevant to a pending or a reasonably foreseeable proceeding; nor counsel or assist another person to do any such act.” A lawyer shall not in “make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party.”

The attorneys for the party responding to the discovery request in this hypothetical, defense counsel, complied with their ethical duties. My conclusion assumes that they sought to limit discovery for the grounds stated, burdensomeness and likely relevance. I assume they did not have any bad faith ulterior motives, such as an attempt to conceal evidence that they knew to be unfavorable to their client. I assume they were not just trying to obstruct access to evidence or conceal relevant ESI. Finally, I assume that their search and production efforts were reasonably diligent.

With these assumptions I conclude defense counsel acted ethically because their refusal to review and produce any more that five custodians and seven issues in the first round of phased discovery did not prevent disclosure of any evidence they knew to be relevant, and did not prevent plaintiffs’ later discovery from other custodians or issues that might prove necessary. It might delay it to a second phase, but not prevent it. If defense counsel should uncover a document outside of this scope, one that is obviously relevant, then under this rule they would be required to disclose such a document and should not conceal it.

I conclude to the contrary that under the given facts plaintiffs’ counsel violated the duty of fairness to opposing counsel because their initial request for discovery was frivolous. They signed and served a discovery request for 50 custodians and 50 issues, knowing that was excessive, and for that reason quickly dropping to 30/30, and ready to accept 20/20, which is what they really thought was reasonable all along. They used a request for production as a mere negotiation tool, and in so doing made an unethically frivolous discovery request. Note they also violated Rule 26(g) FRCP, which Judge Grimm in Mancia said was the most misunderstood and under utilized of all rules of procedure. Rule 26(g) is similar to Rule 11, but applies only to the discovery pleadings.  Rule 26(g)(1)(B) states that a signature on a discovery request constitutes an attorney’s certification that the request is:

(ii) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and…

(iii) neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.

They thought 20 custodians and 20 issues was proportional, yet they signed a request for production seeking 50. They did so for purposes of setting up a negotiation. This is, I suggest, an improper purpose under 26(g)(1)(B)(ii). They knew 50 was unreasonable and unduly burdensome, yet they still signed the discovery request. Plaintiffs counsel in this hypothetical thereby intentionally violated 26(g)(1)(B)(iii) triggering a mandatory obligation under the rule for the court to impose sanctions.

This conduct by the requesting party was not only a civil rule violation, it was unethical. It violated Professional Rule of Conduct 34(c) by “knowingly disobeying an obligation under the rules of a tribunal,” namely Rule 26(g)(1)(B) and as explained before, violated ethics Rule  34(d) because it was frivolous.

Conclusion

Some may say my hypothetical is far-fetched, that attorneys do not engage in this type of behavior. I say, get real. It is an everyday occurrence. The only thing far-fetched about it is the simplicity of the facts, which I necessary injected into the hypothetical, and, the relatively mild nature of the violations. In my position as national e-discovery counsel for a 700 attorney law firm with 48 offices around the country, I see equivalent or worse behavior by opposing counsel almost every week. It is not exactly a crazy hell-zone as I used to suspect, and many still believe. Krueger v. Pelican Products Corp., C/A No. 87-2385-A (W.D. Okla. 1989) (J. Alley) (“If there is a hell to which disputatious, uncivil, vituperative lawyers go, let it be one in which the damned are eternally locked in discovery disputes with other lawyers of equally repugnant attributes.”) But it is bad, and we need to work together as a profession to break out of this prison.

Even though this hypothetical is an all-too-common scenario, as far as I know, no attorney has ever been reprimanded for an ethical violation of Rule 34 upon these circumstances. This ethics rule, like the 26(g) procedure rule, is a paper tiger. Indeed, you could say that about all of the ethics rules here discussed in the context of e-discovery. It is a new area of the law and State Bar Associations are naturally reluctant to enforce its rules in this virgin territory.

But just because attorneys are no yet being reprimanded or losing their licenses for these kinds of rule violations, does not mean we should not care about compliance. Following these well-established rules is the best way to stay on the straight and narrow when it comes to e-discovery. We cannot let old hide-the-ball practices morph into hide-the-byte operating systems.

Compliance with the rules of professional conduct, and the new doctrine of Cooperation that implements these rules (and the rules of civil procedure as Judge Grimm and Professor Genzler have pointed out), is the best way to avoid the threat warned of by Sedona and many others. It is the best way to avoid a future world of litigation where standard hide-the-byte operating systems make “discovery too expensive and time consuming for parties to effectively litigate their disputes.” The Case for Cooperation, Supra at 362.

Although a good argument can be made for the enactment of more new rules of civil procedure to adapt to the challenges of e-discovery, new rules of professional conduct are not needed. The ones we have are sufficient to guide us, but we need to take the time and effort to study and understand these rules. We need to discuss these rules and how they apply to the new situations presented in e-discovery practice. It is my hope that this early effort in that direction will stimulate more discussion and analysis of the subject.

I have been interested in the ethical issues surrounding electronic discovery since 2006. At that time I phased out my general trial practice, went full-time e-discovery, joined The Sedona Conference®, and started this e-Discovery Team® blog. As part of my practice I read most of the opinions around the country written on e-discovery. I quickly noticed something I had not seen before in any other field of law. The case law is dominated by sanctions cases involving spoliation of evidence. Not only that, attorneys are often directly implicated in this spoliation and accused of many other types of intentional or negligent misconduct. I began to wonder if I had stepped into a crazy zone of the law where all attorneys acted like sharks.

This suspicion me to think, write, and speak often on the subject of e-discovery ethics, which culminated in my article, Lawyers Behaving Badly: Understanding Unprofessional Conduct in e-Discovery, 60 Mercer L. Rev. 983 (Spring 2009). The article led to my participation in a full day academic seminar on the subject at Mercer Law School with noted e-discovery experts, Judge John Facciola, Judge David Baker, Jason R. Baron, William Hamilton, and Professor Monroe Freedman, and Chilton Varner, the transcript for which is published at 60 Mercer L. Rev. 863 (Spring 2009). I came to understand that I had not wandered into a special zone of hell, and that lawyers doing e-discovery were no worse, or no better, than other lawyers. But they were put to special challenges and conditions unique to this new field of law, and the end result was many more errors in judgment than you can find anywhere else. These errors continue as shown by surveys of case law. See eg. Willoughby, Jones, Antine, Sanctions for E-Discovery Violations: By the Numbers, 60 Duke L.J. 789 (2010).

Lawyers Behaving Badly

In my 2009 law review article, Lawyers Behaving Badly, I concluded that:

[T]he profession has not suddenly become more sinister than before. Although, some suggest that the dominance of large firms as mega-business enterprises is causing a significant decline in overall ethics. See Marc Galanter & William Henderson, The Elastic Tournament: A Second Transformation of the Big Law Firm, 60 STAN. L. REV. 1867 (2008). There may be some truth to this, but a general decline in ethical standards does not explain why e-discovery jurisprudence is so rife with malfeasance.

Id. at pg. 985. Instead, I hypothesized four reasons to explain the apparent frequent bad behavior of so many attorneys in the field of electronic discovery:

There are four fundamental forces at work in e-discovery, which when considered together, explain most attorney misconduct:

(1) a general lack of technological sophistication,

(2) over-zealous attorney conduct,

(3) a lack of development of professional duties as an advocate, and

(4) legal incompetence.

These ”Wicked Quadrants” are depicted in the circular diagram below.

I am not going to explore the ins and outs of the Wicked Quadrant in this essay, nor rehash the reasons so many lawyers fall astray in e-discovery. (Interested readers are directed to the article and symposium transcript)  Instead, I am going to review and briefly analyze the primary Rules of Professional Conduct that are implicated in e-discovery ethics. These are the rules that we should understand and rely upon to keep us on the straight and narrow, and out of the sanctions penalty box. At the end of Part One I will present a common hypothetical where the ethics of many lawyers involved in e-discovery productions are severely tested . In Part Two I will analyze the hypothetical and show how these rules of Professional Conduct should apply.

ABA’s Model Rules of Professional Conduct

The ethical codes require all lawyers to be competent, and, if faced with a legal task wherein they are not competent, such as e-discovery, to bring in other attorneys who are. Rule 1.1:

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

Our ethics also requires diligence, a task that is impossible unless you are competent and actually know what to do and when to do it. Rule 1.3:

A lawyer shall act with reasonable diligence and promptness in representing a client.

Fast and efficient action is built into our code. It is emphasized again by Rule 3.2 that requires lawyers to expedite litigation:

A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.

The duty of confidentiality is also a core value that often comes into play in e-discovery practice. It is embodied in Rule 1.6:

A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

Our fundamental values embodied by our Rules of Professional Conduct also require candor towards the tribunal, the judges. Candor means openness and complete honesty. It is a core value that may never be broken under any circumstances. Should it violate your duty of loyalty to your client, you are required to withdraw from representation, rather than ever be dishonest and closed to the presiding judge. Here are the exact words of this most important of rules, Rule 3.3:

(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; . . .

(3) offer evidence that the lawyer knows to be false. . . .”

Our core values as lawyers also require fairness to the opposing party in litigation and fairness to the opposing counsel. This means, among other things, that games of hide-the-ball are forbidden. This does not mean that you should provide evidence harmful to your client that was not requested, or not relevant, or that you are not legally required to produce such as privileged information. But if it was requested, is relevant, and you are legally required to produce it, it is unethical not to do so. If the client refuses to do so, you should withdraw. Rule 3.4 states:

A lawyer shall not:

(a) unlawfully obstruct another party’s access to evidence or otherwise unlawfully alter, destroy, or conceal a document or other material that the lawyer knows or reasonably should know is relevant to a pending or a reasonably foreseeable proceeding; nor counsel or assist another person to do any such act.

(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;

(c) knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists;

(d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party.

This last point is sub-section (d) of 3.4 is specifically directed to discovery requests and will be closely examined in our concluding hypothetical.

Brief Analysis of the Rules

To summarize our review of the ABA Model Rules of Professional Conduct, six rules seems especially important to the field of e-discovery:

1. Rule 1.1 – Competence
2. Rule 1.3 – Diligence
3. Rule 1.6 – Confidentiality
4. Rule 3.2 – Expediting Litigation
5. Rule 3.3 – Candor Toward the Tribunal
6. Rule 3.4 – Fairness to Opposing Party and Counsel

Rules 1.3 and 1.6, competence and confidentiality, are often considered client related duties, whereas the other rules listed above are considered professional duties. I examined the inherent tension between these rules in Lawyers Behaving Badly, which I illustrated with several diagrams.

My article suggests that many lawyers neglect their professional duties, and instead over-inflate client duties instead of crafting a careful balance. I speculate that one reason for this imbalance is that the discharge of client-centric duties tends to receive immediate financial rewards from appreciative, perhaps over-impressed, clients. On the other hand, the reputation gains and societal values from fulfillment of professional duties are more long term and abstract. In the hope that a picture actually may be worth a thousand words, and so spare you unnecessary reading at this time, I provide these diagrams below. I suggest you seek the original article for a full explanation should your curiosity be stimulated.

Attorney competence, Rule 1.1, is such a powerful forces in our legal tradition, that it is an over-simplification to look solely at the problem of ethics in e-discovery in a dualistic manner – client versus profession – as the above diagrams suggest. Another element of complexity must be added to get a better understanding of the problem. Competence should be understood as its own ethical force, and the issue should be triangulated as shown below.

This three-fold structural analysis allows for a deeper understanding of the true dynamics of legal practice. Legal competence serves as an independent upward force, along with professional duties, to counter-balance the pressures and temptations involved with fulfillment of duties to clients. The forces of law and profession work hand-in-hand to offset the demands of some clients, typically implied, to prevail over their adversaries at all costs.

Most of the time the temptations of greed and power do not cause “lawyers to behave badly.” Certainly, lawyers do not make a practice of lying to courts and opposing counsel, even though they could probably get away with it in many instances and maximize their income in the process. There is more to this picture than simple economics. The law, after all, attracts many who are concerned with justice and care about doing the right thing. Most lawyers have strong moral fiber and need little encouragement to do the right thing. They are more than pen-and-quill mercenaries. Integrity, professional pride, and competence temper their financial motivations. Moreover, some enlightened clients recognize and financially reward professional competence and are influenced by professional reputation in the lawyer selection and compensation processes.

Cooperation

The strategy demanded in e-discovery when it is performed competently, is fundamentally different than traditional adversarial strategy for courtroom arguments. It involves cooperation on discovery, buttressed by liberal disclosure by both sides (party requesting information, and party responding to the discovery requests). The need for this new strategy, and the name given therefore of cooperation, was initiated by Richard Braman, the founder of the Sedona Conference. Richard set forth this Sedona initiative in a press conference followed by a written, online Sedona Conference Cooperation Proclamation (2008). This is a brief document of only two and a half pages. It is well summarized by its conclusion, which states:

It is time to build upon modern Rules amendments, state and federal, which address e-discovery. Using this springboard, the legal profession can engage in a comprehensive effort to promote pre-trial discovery cooperation. Our “officer of the court” duties demand no less. This project is not utopian; rather, it is a tailored effort to effectuate the mandate of court rules calling for a “just, speedy, and inexpensive determination of every action” and the fundamental ethical principles governing our profession.

Although the proclamation was short, it was elaborated at length in The Case for Cooperation, 10 Sedona Conf. J. 339 (2009 Supp.) The article was written by a group of Sedona contributors led by Bill Butterfield of Hausfeld LLP.  The executive editors were Richard G. Braman and Kenneth J. Withers, both of The Sedona Conference®. This initial proclamation and article were followed by case law where all of the leading e-discovery judges weighed in with their strong support of the new doctrine, and many more articles.  Mancia v. Mayflower Textile Services Co.253 F.R.D. 354 (D.Md. Oct. 15, 2008) (landmark case on cooperation by Judge Paul Grimm that details the basis in the rules and reasonable, ethical practice for a cooperative approach to discovery, especially e-discovery); Losey, R., Mancia v. Mayflower Begins a Pilgrimage to the New World of Cooperation, 10 Sedona Conf. J. 377 (2009 Supp.) (reviews initial case law adopting the Cooperation Proclamation); Gensler, S., The Bull’s-Eye View of Cooperation in Discovery, 10 Sedona Conf. J. 363 (2009 Supp.) (Professor Gensler provides a scholarly basis and analysis of the new doctrine and its benefits to litigants); Also see DeGeer v. Gillis, 2010 WL 5096563 (N.D. Ill. Dec. 8, 2010) (J. Nolan) (found that the absence of a “spirit of cooperation [and] efficiency” was the controlling factor in determining whether cost shifting was warranted for discovery of nonparty ESI).

The cooperation challenge is still beyond the skill of most attorneys, at least when it comes to making e-discovery related decisions and communications. The competence weakness in turn limits the restraints on unethical conduct.  The hardest ethical decisions have to be made where you are not sure what to do. As practitioners of e-discovery improve their technical competence, they realize that the cooperative model must be employed to focus on the issues and to control costs. I have yet to meet an experienced attorney in this field who does not agree with this proposition, one who knows both discovery and trial Practice.

Hypothetical

Let us assume for purposes of this hypothetical that the attorneys for one side, the defendant employer in a class action case, have shifted to the new paradigm of Cooperation, and the attorneys for the other side, here the plaintiffs’ counsel, have not. This means plaintiffs’ counsel are still stuck in the old school attitude of attacking all of the other side’s proposals without first considering their merits, without any objective analysis of reasonability.

They do this because they assume that if the other side wants something, then it must be bad for their side. They assume that any proposal is not genuine, that it is instead a gross-exaggeration of the other side’s real position. They assume anti-Solomon attitudes where the baby will be split. For that reason they say 1,000 is their bottom line, whereas in fact the reasonable number, which they well know, is 10 not 1,000. They begin at 1,000 even though they know that 10 is proportional. They do not cooperate. They negotiate. They want to win, and most will do so at all costs without regard to the unnecessary attorney fees thereby incurred.

Unfortunately, in e-discovery most attorneys are still stuck in the non-cooperative win/lose discovery battle. They mistakenly think that it is their job to not only argue the law and application of the law to the given facts, but also to try to change the given facts, to hide and obfuscate facts they think are adverse to their client.

This fundamental difference in attitude towards discovery makes the position of the cooperator, here defense counsel, very difficult. The solution is largely one of education of opposing counsel, or failing that, the court.

An objective reasonable discussion should resolve all issues, especially if there is a fair measure of transparency to the process. This must remain the goal of all cooperative counsel in order to protect their clients from excessive costs and disputes.

Next assume that plaintiffs’ counsel makes a very broad demand for production of email using the old school, win-lose negotiation methods. Assume they make demand for the relevant emails from 50 custodians, naming everyone and their uncle that might possibly have anything to do with the dispute in question. They also purport to define relevancy very broadly by making 50 category demands on a wide variety of subjects, many with only a nebulous connection to the factual issues of the case. They do so knowing that at most 10 custodians are likely to really know anything, but they are not sure exactly who they are, and for that reason they name the larger group of 50. They are also not sure of the real issues of fact in the case yet, largely because they have never talked with opposing counsel. Since they do not have a clear idea of the issues in the case, they define relevancy very broadly with 50 categories of documents.

The new paradigm attorneys, here defense counsel, quickly realize when they attempt real communication with plaintiffs’ counsel on issues of e-discovery, that they are dealing with old school negotiators. It quickly becomes obvious to experienced e-discovery counsel when opposing counsel has little or no personal competence in the area. You cannot hide that, no matter how many experts you may hire to guide you.

Defense counsel quickly realized that no true communications were likely, that they were engaged in a traditional negotiation process with Plaintiff’s counsel. But rather than accept and play the game by say offering 3 custodians and 5 issues, hoping to settle for 5 and 7, defense counsel lays out their case for five custodians and seven issues. They play a new game, a cooperative game of reasoned discussion and informed decisions. Defense counsel makes disclosure and explains why they consider the 5/7 offer to be reasonable. They explain why they think the offer that would be beneficial to all parties.

Next assume that plaintiffs’ counsel are unpersuaded by defense counsel, that they respond with little or no substance, and instead demand 30/30, instead of 50/50, arguing that they have now made major concessions, and thus suggesting or signaling that they will accept 20 custodians and 20 issues. They assume, incorrectly, that defense counsel is like them, that the 5/7 proposal was just the opening offer in a negotiation dance. They did not really care about the reasons stated by defendants for the proposal, and, truth be told, they did not really understand most of the e-discovery technical talk surrounding the issues. They were hardball trial lawyers; tough advocates doing their job by pounding out as much information from the other side as they could. They thought it would help their clients to make the defendant’s case as expensive as possible. They knew e-discovery was a good way to do that, and knew from past experience that this oppose everything tactic was a good way to drive up the settlement value of the case. Discovery, especially e-discovery, was just another tool in the battle against the other side.

Next assume defendants continue to refuse to play the negotiation game, and hearing no real reasons for them to think their original calculation of 5 custodians and 7 issues is wrong, press forwards in their demands for 5/7. They ask for reasons and calm discussion from plaintiffs’ counsel, but instead receive rhetoric and negotiation bluster. Accusatory letters are exchanged, the real purpose of which are not true communications, but mere posturing, mere creation of exhibits for use in motion practice.

The court is then asked to consider cross-motions for relief on a variety of complex e-discovery issues. Both sides claim that they are the true cooperator, and that the opposing party, not them, is to blame for the impasse. What should a judge then do? How do you tell the true cooperator from the mere poser? Both sides claim to be cooperators, and one side did make a major move in custodian and issue count, whereas the other did not. From the negotiation perspective, it looks like plaintiff’s counsel is being more cooperative. Whereas we know that they are not cooperating at all, they are not even communicating or attempting to narrow the issues. How is a savvy judge to sort things out?

The answer lies in probing the merits of the dispute. This requires the judge to also break out of the old negotiation paradigm, to look beyond the facial numbers.  Why are five custodians reasonable and proportional, and twenty custodians too much? Why should relevancy be defined by seven issues, and not twenty? It is not a mere numbers game, as plaintiffs’ counsel in this scenario would suggest. The court must do the hard work of examining the merits of the dispute, of determining what is reasonable and proportional for the case, and what is not. The court should refuse to buy into the old paradigm negotiation model, and just split the difference and enter an order allowing 12 custodians and 14 issues. The judge should instead examine the facts in an objective manner, and if 5 custodians and 7 issues are indeed reasonable, should rule accordingly.

This takes time and hard work on the judge’s part, and on part of the attorneys who frame the issues and present the case. They need to provide meat for the bone. They need to make disclosures and present facts to support their positions.

In the hypothetical let us further assume that defense counsel realized their quandary and voluntarily made substantial disclosures. Assume they disclosed their own mental impressions, their work product as to why the five custodians they picked would have the most relevant email. Assume they also provided total counts and other metrics of email for the five custodians they proposed. Moreover, assume the defendant also provided counts for the additional fifteen custodians that plaintiffs’ proposed.

Assume the defendant make even further disclosures to support their argument of reasonability and proportionality. Assume they presented detailed information concerning the costs of the review and production proposed by plaintiffs, as compared to their proposal. Assume it was not puffed or inflated and was supported by facts, which they offered to backup with further testimony if needed.

Assume defendants went even further and began to make sample productions from the top five custodians they picked, and that they did so after a strong confidentiality and clawback order was entered by the court. Assume the emails produced showed that most of the other fifteen custodians that plaintiffs wanted to add at great additional cost were copied on most of the relevant documents.

Assume defense counsel even made some random sample productions from all twenty custodians to show that the top five they had selected had the vast majority of the relevant documents, and were the only source of the few highly relevant documents found. Assume they not only produced the documents they marked relevant, but also made a selective disclosure of documents they marked irrelevant to provide the plaintiffs with an opportunity to review and if need be, to challenge their understanding of relevancy in this case.

Assume that defense counsel was also proposing phased production. That they only insisted their 5/7 approach be for the first phase, and that they did not insist plaintiffs waive their rights to seek additional document productions in follow-up phases. Instead, assume the defendants only sought to clarify that they reserved their rights to object to any future discovery, or not, depending on the circumstances.

With all of these additional facts, these voluntary disclosures, the judge’s work becomes much easier. The judge now has the information, the facts, on which to make a ruling. The defendant has made significant disclosures of their client’s email systems, and even of their email contents. Now the judge is in a position to determine whose position is reasonable, and who is the true cooperator here. This information provides the substance needed for the judge to go beyond the negotiation model of discovery dispute resolution to a true judicial model.

Of course, in the real world all lawyers come before judges with a history. They have a reputation. This can also help a judge to evaluate “who’s on first” and know who is a poser, and who is not. This is especially true where a judge has seen and heard from one or more of the lawyers several times before. That is where the intangible value of an attorney’s reputation comes in.

I am happy to say that in my experience when most judges are faced with this situation, and properly advised of the issues, they will do the hard work and make their own determination of reasonability. They will not simply split the baby and order 12 custodians and 14 issues. But this requires proper education of judges on the issues, which in turn requires competent counsel with a good reputation for truth, honesty and fair dealing. If defense counsel in this scenario are competent, and so is the judge, a just and reasoned result will usually be attained, regardless of any overly-clever negotiation tactics of plaintiffs’ counsel.

END OF PART ONE.

In Part Two I will analyze this hypothetical using the six key Rules of Professional Conduct.