Ethical Hazards Posed by the Digital Age. Leslie A.T. Haley Sr. Asst. Ethics Counsel Virginia State Bar. Dangers of Technology. Attorneys make excuses for not learning good informational technology skills. . . . I’m a technophobe I’m technology challenged I’m techno-illiterate
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Leslie A.T. Haley
Sr. Asst. Ethics Counsel
Virginia State Bar
• Duty to scrub electronic documents for metadata; duty of attorney to mine or not mine opponent’s electronic documents for metadata • Lawyer’s use of information or data obtained by client in violation of ECPA or other computer trespass laws • Electronic file retention, storage, destruction, and delivery to client • Ethical issues arising out of e-discovery: Qualcomm, Inc. v. Broadcom Corp. • Unintended relationships: “Are you my lawyer?” Ethical duties owed to persons who communicate via lawyer’s website or Internet mail • What should a lawyer do when an opponent mistakenly transmits electronic documents that contain privileged information?
Is it unethical to look for metadata that might contain privileged or confidential information?
If so, can’t look.
RPC 8.4:Misconduct to engage in conduct involving “dishonesty, fraud, deceit or misrepresentation.”
If so, then rules and cases that
require notifying the sender
could applyRecipient’s Duties
ABA Model RPC 4.4(b): “A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.”
NYSBA Op. 749 Ariz. Bar Op. 07-03
Dishonest to look Dishonest to look
Notify of receipt Notify of receipt
Florida Bar Op. 06-2Virginia? LEO 1702?
Can’t look; Dishonest?
Notify of receipt D.C.?
Alabama State Bar Opinion Number: 2007-02
Dishonest to look
Notify of receiptCan You Look? Must You Notify?
ABA Op. 06-442
Maryland Op. 2007-09
Colo. Bar Op. 119 (2008)
Can you look?
Where do you practice?
Must you notify?
Where do you practice?
- Do ethics rules include Rule 4.4(b)?
- Does it apply?
- What does it say?
- Any case law?
Other Considerations in Determining When to Destroy a Client’s File:
The Qualcomm trial team decided not to
produce these newly discovered emails
to Broadcom, claiming they were not
responsive to Broadcom’s discovery
What are the ethics issues:
Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 216 (S.D.N.Y. 2003).
(assessing a spoliation claim against Deutsche Bank; a litigant asserting a spoliation claim must show bad faith if its adversary destroyed documents before the appropriate "trigger date," but need not show bad faith if documents are destroyed after that date; defining the "trigger date" as the date "when a party knows or should have known that the evidence is relevant to future or current litigation").
(holding that a company had engaged in spoliation, and approving “an adverse spoliation of evidence instruction in the jury instructions.”)
United States v. Phillip Morris USA Inc., 327 F. Supp. 2d 21 (D.D.C. 2004).
The New York Times (5/19/05) "Jury Tallies Morgan’s Total at $1.45 Billion."
Fed. R. Civ. P. 26(f)(4).
(1) the disclosure is inadvertent;
(2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and
(3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Fed.R.Civ.P. 26(b)(5)(B).
(Rhoads Industries, Inc. v. Building Materials Corp; 254 F.R.D. 216 (E.D. Pa. 2008))
(Laethem Equipment Co. v. Deere & Co.; 2008 BL 290231 (E.D. Mich. 2008))
Court found privilege waived where Plaintiff did not pursue allreasonable means of preserving the confidentiality of docs produced.
(ReliOn, Inc. v. Hydra Fuel Cell Corp., 2008 BL 270238 (D. Or. 2008))
Court found no privilege for doc where Plaintiff failed to meet its burden to show reasonable steps were taken to prevent the disclosure.
(Conceptus, Inc. v. Hologic, Inc., No. C 09-02280 (N.D. Ca. 2010))
(pursuant to Rule 502(d))
(Alcon Manufacturing, Ltd. V. Apotex, Inc., No. 06-cv-01642 (S.D. Ind. 2008).