Metadata, Transparency, Outsourcing & Lawyering.

1. 2 Metadata, Transparency, Outsourcing & Lawyering. eDiscovery Class March 29, 2010

2. The Facts MARKINS has been a practicing attorney since October, 2001. MARKINS was employed as an associate attorney at the law firm of Huddleston Bolen, LLP (“Huddleston”)

3. The Facts His wife, also an attorney, was similarly employed at the law firm of Offutt, Fisher & Nord (“OFN”).

4. The Facts In late October or early November of 2003, MARKINS began accessing his wife's OFN e-mail account without her permission or knowledge. MARKINS testified that the purpose of reading his wife's e-mails was to secretly monitor her activities because he believed she had become involved in an extramarital affair with an OFN client.

5. The Facts MARKINS further testified that, initially, he improperly accessed only his wife's account and later, that of another attorney, an OFN partner. Eventually, however, MARKINS’ curiosity got the better of him, and he began accessing the e-mail accounts of seven other OFN attorneys.

6. The Facts The password to his wife's e-mail account was her last name. Similarly, the passwords to the e-mail accounts of all OFN attorneys was the individual account holder's last name.

7. The Facts When an OFN attorney began to suspect that her e-mail account had been improperly accessed, OFN launched an investigation. From the investigation, it was learned that on numerous occasions from sometime prior to November 7, 2003, until March 16, 2006, MARKINS gained unauthorized access to OFN e-mail accounts from three IP accounts:

8. The Facts These accounts included MARKINS’ Huddleston IP account; MARKINS’ residential IP account; and the IP account at the Hampton Inn in Beckley, West Virginia, where MARKINS had been monitoring a trial in which both Huddleston and OFN clients were being represented.

9. The Facts It is undisputed that MARKINS improperly accessed the e-mail accounts of OFN attorneys on more than 150 occasions.

10. The Facts The confidential client information that had been accessed by MARKINS , a large mass tort case that was in litigation during the time period at issue. Both law firms represented co-defendants in that litigation. In March, 2006, MARKINS, along with other lawyers whose firms were involved in the mass litigation, was monitoring the trial from the Hampton Inn in Beckley, West Virginia.

11. The Facts While monitoring the proceedings, MARKINS gained unauthorized access into various OFN e-mail accounts from the Hampton Inn's IP account. Huddleston's mass tort client had a contractual relationship with and a claim for indemnity against OFN's client. Though the claim was not then being litigated, the information included in the firm's e-mail system would have been “helpful” to Huddleston's client.

12. The Facts Since MARKINS’ misconduct was reported by the Charleston Gazette newspaper and the Associated Press, OFN “has suffered further damage to its image and reputation.” One of the firm's clients expressed “serious concerns” about the security breach and about whether MARKINS improperly accessed important information concerning that client.

13. The Facts This client has put the firm on notice of a potential claim for damages against it. The Firm anticipates that similar concerns will be expressed by other clients in the future and that the negative ramifications and stigma of MARKINS’ misconduct will be felt for many years.

14. Questions Who are the potential plaintiffs?

15. Questions When should MARKINS’ law firm issue a litigation hold?

16. Questions In the Rule 26(f) conference, what, if anything, should MARKINS’ law firm keep the other side from learning about the law firm’s information or systems? Why?

17. Questions What kind of metadata would be important in this case?

18. Questions Would MARKINS’ law firm want to collect and process its own electronic discovery? Why?

19. Questions How would the law firm representing MARKINS and his firm go about outsourcing the eDiscovery?

20. Questions What issues are involved in selecting an eDiscovery Vendor?

21. Questions What issues are involved in selecting an eDiscovery Vendor? Reputation Bench Strength Costs

22. Questions Other outsourcing issues:

23. Questions What kind of ethical and liability issues do you see in this case?

24. The Case Supreme Court of Appeals of West Virginia. LAWYER DISCIPLINARY BOARD, Petitioner v. Michael P. MARKINS, a Member of the West Virginia State Bar, Respondent. No. 33256. Submitted April 1, 2008. Decided May 23, 2008.