Senior SDNY District Court Judge William Pauley recently reminded the Bar of “the importance of verifying a client’s representations.” Lawrence v. City of N.Y., Case No. 15cv8947 (SDNY, 7/27/18) copy linked. Amen to that! As will be explained, in e-Discovery authenticity of “documents,” which are really nothing more than ephemeral computer files, zeros and ones, is a constant concern. If an electronic document is too good to be true, it may not be. It is important that you question the origin of important evidence, that you ignore popular wisdom and look a gift horse in the mouth.
If it is key electronic evidence, then give it a full dental exam, including especially the metadata. Plaintiff’s counsel in this case failed to do that. He barely glanced at the horse. As a result the case was lost and so was he. He was forced to withdraw and almost personally sanctioned for violation of Rule 3.3 Candor Toward The Tribunal, ABA Model Rules of Professional Conduct. Also see: Attorney Avoids Sanctions Over Client’s ‘Staged Photos’ (Bloomberg Law 7/31/18) (“Attorney won’t be sanctioned for failing to discover that his client had lied about when digital photos were taken in order to support her case against New York City police officers.”).
SUMMARY OF LAWRENCE
Continuing its tradition as the wrong court in which to play e-discovery games, the SDNY sanctioned the plaintiff in Lawrence by complete and final dismissal of her case. She had tried to hide the ball, at least part of the ball, the important metadata part of seventeen photos. The plaintiff’s attorney produced scanned PDFs of the paper printouts of the original photos, not the actual original photos. The original of the ESI here is the computer files on plaintiff’s phone. The attorney never even looked at the originals. Just the printouts. It never occurred to him to authenticate them, not even through close questioning of his client. She might have lied to her lawyer, but who knows; apparently he never asked.
Metadata of the original electronic file on the phone includes the date the photos were taken. The defendant city wanted to see these originals because a conflict in plaintiff’s testimony suggested that the key photos of her apartment might not be genuine. Once the original native files were recovered from the phone, they showed that the photos were taken years later than alleged, in fact, they were taken the day before she gave them to her lawyer. They were staged.
By hiding the metadata the Plaintiff was obviously trying to perpetrate a fraud on the court. The ultimate sanction was entered in the case. The case was dismissed with prejudice by the District Court Judge. He did not also enter monetary sanctions only because the plaintiff was indigent.
Aside from imposing the ultimate sanction, the opinion is memorable because the facts were not sufficient for a Rule 11 violation, but were for a violation of Rule 26(g). Rule 26(g) is often called the Rule 11 of Discovery. This case shows that and explains why. Interesting only to super FRCP nerds I suppose, but I liked seeing this discussion because it is so rare.
Judge Pauley
Lawrence is also memorable for appearing to state, incorrectly, that Rule 37(e) does not apply because the attorney was not to blame and he did not violate a discovery order. This was probably not intended by Judge Pauley, but that is how the opinion reads. The attorney’s innocence, or not, is not a factor on whether one party is entitled to relief under Rule 37. It should only impact the scope of the sanction, whether the sanction should include the attorney. Here is the analysis by Judge William Pauley that concerns me:
Rule 37 does not apply to this situation. This rule “provides generally for sanctions against parties or persons unjustifiably resisting discovery.” Fed. R. Civ. P. 37 advisory committee’s note; see Nieves v. City of N.Y., 208 F.R.D. 531, 535 (S.D.N.Y. 2002) (explaining that Rule 37 seeks in part to “obtain compliance with discovery orders”). Here, Leventhal did not fail to comply with discovery orders, to supplement an earlier response, or to preserve electronically stored information. Further, there is no showing that his actions were willful or part of a pattern of noncompliance. “Willful non-compliance is routinely found . . . where a party has repeatedly failed to produce documents in violation of the district court’s orders.” Doe v. Delta Airlines, Inc., 2015 WL 798031, at *8 (S.D.N.Y. Feb. 25, 2015) (citation omitted). Instead, Leventhal was unaware of Lawrence’s actions and took corrective action after learning that the photographs were taken two years later. Defendants have not shown that Leventhal handled his discovery obligations in an unethical or willfully non-compliant manner.
This holding re Rule 37 should be limited to the unusual facts of Lawrence. The production of altered and faked evidence to another party, instead of the originals, certainly can be a Rule 37 violation. You do not have to prove that the attorney was in on it before Rule 37 applies. Also, the opinion suggests that the plaintiff did have contemporaneous pictures of her apartment from two years earlier when the incident took place, but she did not save them. She destroyed them and so Rule 37(e) should apply too. Remember, subsection (e) applies when ESI “that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it.” Lost includes destroyed and substituted with fake pictures. Furthermore, unjustifiably resisting discovery certainly should include producing fake documents, instead of the original ESI requested. Instead, Judge Pauley looks to the attorneys actions and finds that his actions were willful or part of a pattern of noncompliance. The party’s actions are what matter here and the plaintiff here unquestionably acted willfully and as part of a pattern of non-compliance.
Inherent Power of the Court
The main grounds for the case dismissal sanction was the inherent power of the court to sanction a party for bad faith litigation conduct. This case should be cited for this proposition, as well as for Rule 26(g). Note that the Plaintiff had a couple of interesting explanations for creating staged photos of her apartment to try to prove her case. First, she said she had a mental illness and that is why she did it. Then, at a deposition, she added that her medications prevented her from testifying truthfully. She did in fact have a history of mental illness, but, of course, that did not justify her attempted fraud on the court. Still, it is an interesting twist that you do not see very often.
“Our judicial system generally relies on litigants to tell the truth . . . .” McMunn, 191 F. Supp. 2d at 445. Therefore, “[f]raud upon the court . . . seriously affects the integrity of the normal process of adjudication.” Hargrove v. Riley, 2007 WL 389003, at *11 (E.D.N.Y. Jan. 31, 2007) (citation and marks omitted). “[T]ampering with the administration of justice . . . involves far more than an injury to a single litigant. It is a wrong against the institutions set up to protect and safeguard the public, institutions in which fraud cannot complacently be tolerated consistently with the good order of society.” Shangold v. Walt Disney Co., 2006 WL 71672, at *4 (S.D.N.Y. Jan. 12, 2006) (citing Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 246 (1944)). . . .
These shifting explanations are as troubling as the photographs themselves. This Court does not know how it can credit any of Lawrence’s explanations. In considering the factors relevant to sanctions, most, if not all, support a harsh sanction. First, it is clear that the photos were intentionally staged. Photographs do not create themselves, and Lawrence’s belated attempts to explain them are not worthy of belief. From this Court’s review of the photographs, it is clear that Lawrence or someone on her behalf intentionally staged scenes of her apartment, including ripped furniture, a couch turned over, a broken air-conditioner, and disassembled stereos. Whether Lawrence personally created the photographs or not, she embraced them and willingly testified that they accurately depicted the condition of her apartment as of August 2014. . . .
Lawrence’s mental illness, while a mitigating factor, does not excuse her actions. Memory lapse does not explain manufactured exhibits and perjured testimony. This Court cautioned Lawrence that she needed to provide [*10] a credible explanation for her actions. (Feb. Hr’g Tr., at 13:1-4; 13:10-12.) She has failed to do so. As this Court stated in February, Lawrence may not be a lawyer, but she “know[s] the difference between giving honest testimony and providing honest exhibits as opposed to giving perjured testimony and manufacturing exhibits . . . [b]ecause that’s the difference between right and wrong.” (Feb. Hr’g Tr., at 11:4-10.)
Lawyers Ethical Duty to Prevent Fraud on the Court
The final lesson we learn from Lawrence comes from Judge Pauley’s evaluation of the conduct of the lawyer representing this fraudulent plaintiff, Jason L. Leventhal. Judge Pauley begins his opinion in Lawrence with the statement: This Opinion & Order showcases the importance of verifying a client’s representations. The opinion then makes clear that Leventhal did not do that here. The lawyer just accepted his client’s representations that she had taken these photos and done so at the time of the incident, two years earlier. Jason never asked to see the phone or metadata to verify that these were in fact taken at the time. He just took his client’s word for it that everything was legitimate. This opinion suggests that was a mistake, although the lawyer was not sanctioned this time. It was close. We should all be aware of the Big Bad Wolf client who comes in with computer evidence too good to be true. Look carefully, Grandma may be a wolf and you may be tangled in a web of fraud.
The attorney who failed in his verification duties in this case helped his case by moving to withdraw as soon as the Defendant City discovered the photos were fraudulent. Leventhal also hired ethics counsel, Michael Ross, to represent him and plead his innocence. Ross even filed an affidavit about what happened. Reading between the lines it seems clear that Leventhal himself was very nearly sanctioned. For all we know an ethics complaint may have been filed with the local Bar.
The ethics issue is whether Leventhal violated Model Rule of Professional Conduct 3.3, Duty of Candor Toward the Tribunal, which states:
Advocate
(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;
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
The official Comment to Rule 3.3 has some good insights into the purpose of this requirement:
Offering Evidence
[5] Paragraph (a)(3) requires that the lawyer refuse to offer evidence that the lawyer knows to be false, regardless of the client’s wishes. This duty is premised on the lawyer’s obligation as an officer of the court to prevent the trier of fact from being misled by false evidence. A lawyer does not violate this Rule if the lawyer offers the evidence for the purpose of establishing its falsity.
6] If a lawyer knows that the client intends to testify falsely or wants the lawyer to introduce false evidence, the lawyer should seek to persuade the client that the evidence should not be offered. If the persuasion is ineffective and the lawyer continues to represent the client, the lawyer must refuse to offer the false evidence. If only a portion of a witness’s testimony will be false, the lawyer may call the witness to testify but may not elicit or otherwise permit the witness to present the testimony that the lawyer knows is false.
With these ethical requirements in place it is easy to understand why Plaintiff’s attorney, Leventhal, moved to withdraw and hired ethics counsel to represent him personally in these sanction proceedings. The defense was based on innocent ignorance on metadata and the possibility that these photos were fake. It is the most popular and widely used defense in this situation. I call it the caveman lawyer defense.
Here is Judge Pauley’s final ruling that let Leventhal off the hook. (Citations to record removed.)
Leventhal accepted his client’s representations and after reviewing the photographs, saved them to a PDF, Bates-stamped them, and produced them to Defendants. At that time, Leventhal was unfamiliar with electronically stored metadata and “did not doubt [that] the photographs were taken contemporaneously with the occurrence of the damage.” . . .
When Defendants checked the photographs’ metadata, they learned that 67 of the 70 photographs had been taken in September 2016—two years after the incident and immediately before Lawrence provided them to Leventhal. In September 2017, Defendants sent a Rule 11 safe-harbor letter to Leventhal.
In October 2017, Leventhal moved to withdraw as counsel, asserting that “based upon facts of which [he] was not aware . . . [he] hereby disavow[ed] all prior statements made [regarding] the photographs.” At an October 2017 conference, Leventhal’s ethics counsel represented that at the time of production, Leventhal “did not believe or have reason to believe that there was any question about the date or provenance of the photographs.” Ethics counsel also stated that other events now compelled Leventhal to withdraw. While Leventhal’s motion was pending, Lawrence terminated Leventhal’s representation.
In December 2017, this Court granted Leventhal’s motion to withdraw and afforded Lawrence two months to secure new counsel. Lawrence was unable to engage a new lawyer and appeared pro se. . . .
Leventhal repeatedly attempted to gain access to the devices containing the photos. Further, some of the photographs appear to show damage to Lawrence’s apartment consistent with her testimony, including a mattress and couch torn open, and damage to other items. Therefore, a reasonable lawyer would not have doubted that they showed what Lawrence claimed. Finally, Leventhal explains that at the time he produced the photos he was unfamiliar with the process for checking a digital photograph’s metadata, which entails right-clicking it and navigating to its properties.
Based on these facts, Leventhal’s production of the photos may have been careless, but was not objectively unreasonable. Cf. Johnson v. BAE Sys., Inc., 4 F. Supp. 3d 62 , 307 F.R.D. 220 , 226 (D.D.C. 2013) (sanctioning attorney for producing doctored medical records without any inspection or inquiry whatsoever).
Leventhal was not sanctioned, even though the Judge found that he was careless in accepting without scrutiny his client’s “newly found” electronic evidence. There is some fine hair-splitting going on here. He was careless, but he was not “objectively unreasonable.” Had he been the later, he could have been sanctioned. I wonder how much longer that kind of aw shucks defense will work anywhere, especially in the SDNY? I would not want to have to play that card. Would you?
Conclusion
If the client comes to you and says they have found great evidence to support their case, then disregard the popular saying. Look the gift horse in the mouth. Look at it carefully, especially if it becomes key evidence to prove your case. If it is too good to be true, maybe it’s not. There could be metadata deep in the ESI, like in this case, that shows the pictures to be fake. Date of Creation is the most common red flag, but there are others, including some little known internal system metadata markers. Sorry, but I am not doing to discuss that publicly for safety concerns.
When you get a great photo that makes your case, then at least look at the metadata and confirm the date, camera and GPS location (if that feature is turned on). Do not be naïve. Be skeptical. Be a lawyer. Check out the evidence. Look the gift horse in the mouth. If those teeth are rotten and fake, you could easily become ensnared in a conspiracy to get fake computer files into evidence. Don’t know what you are seeing? Then hire a dentist, so to speak, an ESI specialist. They can help you out. And yes, most do provide Novocain or Nitrous Oxide upon request to make e-discovery as painless as possible.
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