ALI-ABA Course of Study Current Developments in Employment Law July 24-26, 2008 Santa Fe, New Mexico

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1 693 ALI-ABA Course of Study Current Developments in Employment Law July 24-26, 2008 Santa Fe, New Mexico Ethical Issues Associated with Preserving, Accessing, Discovering, and Using Electronically Stored Information By Paul W. Grimm U.S. District Court Baltimore, Maryland

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3 695 Ethical Issues Associated With Preserving, Accessing, Discovering, and Using Electronically Stored Information Paul W. Grimm 1 One of the most rapidly developing areas of civil practice concerns issues relating to the discovery of electronically stored data. During the last few years we have gone from only a few cases addressing this issue to the current state where new rules of civil procedure dealing with electronically stored information, or ESI, have been adopted, and new cases are decided nearly every week. Despite the new rules, however, the standards being adopted can differ substantially from court to court. Because nearly all records are drafted and retained in electronic format 2 and the unceasing advances in technology make it easier and easier to access, store, transfer and use electronic records, the resolution of issues associated with discovery of electronic data has become complicated. This article will focus on the ethical issues associated with the duty to preserve electronic and other evidence, as well as ethical standards relating to the use of metadata. The aim of this article is modest: to help define these issues and direct you to sources that will provide more comprehensive and thought-provoking information that will be helpful as you try to resolve electronic discovery issues in your practice. If you take away anything from this article, it should be that you need to be well-informed about these 1 Chief United States Magistrate Judge, District of Maryland. I gratefully acknowledge the assistance of Elysha Carouge and Lauren Grossman, student interns who assisted with this article. 2 Thompson v. HUD, 219 F.R.D. 93, 96 (D. Md. 2003) (citing In Re Bristol-Myers Squibb Securities Litigation, 205 F.R.D. 437, 440 n.2 (D.N.J. 2002) (estimating that more than 90% of all records created are done electronically)). 1

4 696 subjects because the consequences of not knowing what is required can be severe for both counsel and client. Ethical Requirements The Rule of Professional Responsibility most directly affecting the issue of preservation of electronic data is Rule 3.4, entitled Fairness to Opposing Party and Counsel. 3 Rule 3.4(a) states: [A lawyer shall not] unlawfully obstruct another party s access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act. 4 The comment to the rule provides further important guidance regarding its purpose and scope: The procedure of the adversary system contemplates that the evidence in a case is to be marshaled competitively by the contending parties. Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like. Documents and other items of evidence are often essential to establish a claim or defense. Subject to evidentiary privileges, the right of an opposing party, including the government, to obtain evidence through discovery or subpoena is an important procedural right. The exercise of that right can be frustrated if the relevant material is altered, concealed or destroyed. Applicable law in many jurisdictions makes it an offense to destroy material for purposes of impairing its availability in a pending proceeding or one whose commencement can be foreseen.... Paragraph (a) [of Rule 3.4] applies to evidentiary material generally, including computerized information. 5 3 American Bar Association, MODEL RULES OF PROF L CONDUCT R. 3.4 (2003) Lawyers must be careful to check the version of the rules applicable in each state in which they practice, because many states adopt modified versions of the ABA rules. 4 Id. 5 Id. at cmt. (emphasis added). 2

5 697 The annotation to Rule 3.4(a) points out that while a violation of the rule may expose a lawyer to professional discipline, 6 [i]t is normally the judge hearing the matter who initially takes the corrective action through litigation sanctions, such as... exclusion of evidence, and the payment of fines, costs, and attorneys fees. A court is likely to consider Rule 3.4, as well as other ethics rules, when imposing these litigation sanctions. 7 Thus, the annotation makes an important point: while the ethics rule is the starting point, much of what is important regarding the ethical issues related to the duty to preserve electronic data is found in the case law discussing spoliation of evidence, the duty to preserve evidence, the sanctions available under the discovery rules, and the inherent authority of the court. The Duty to Preserve Evidence Although it comes as a surprise to many lawyers, the duty to preserve evidence commences prior to the actual initiation of litigation. As one court aptly stated: The duty to preserve material evidence arises not only during litigation but also extends to that period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation. If a party cannot fulfill this duty to preserve because he does not own or control the evidence, he still has an obligation to give the opposing party notice of access to the evidence or of the possible destruction of the evidence if the party anticipates litigation involving that evidence. 8 6 See, e.g., Attorney Grievance Comm n v. White, 731 A.2d 447 (Md. 1999) (lawyer disbarred for multiple ethical violations, including Rule 3.4(a) for, inter alia, destruction of part of a manuscript containing autobiographical information that related to employment discrimination claim filed in federal court). 7 Center for Professional Responsibility, American Bar Association, ANNOTATED MODEL RULES OF PROF L CONDUCT at 348 (5th ed. 2003) (hereinafter Annotated Model Rules). 8 Silvestri v. General Motors Corp., 271 F.3d 583, 591 (4th Cir. 2001) (citations omitted). Accord Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 436 (2d Cir. 2001); Thompson v. HUD, 219 F.R.D. 93, (D. Md. 2003); Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 216 (S.D.N.Y. 2003). 3