e-Discovery Docket Sheet

The court considered a petition for a disciplinary action filed by the Attorney Grievance Commission against the defendant, an attorney, for violating the Maryland Rules of Professional Conduct. When resigning from a law firm, the defendant took paper files pertaining to two of the firm's clients, stating that he believed the clients would choose to have the defendant continue representing them. The defendant also deleted the client files from the firm's computer without authorization. The computer records included all documents prepared by the defendant and the firm's secretaries relating to matters involving the clients. The commission sought suspension of the attorney's license, alleging that the defendant committed “a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects.” The judge appointed to hear the initial action held that the defendant did not violate the code. However, the court of appeals reversed, finding by “clear and convincing evidence” that the defendant's conduct in deleting the files violated the rules of professional conduct. The court also noted that: “[n]otwithstanding the attorney's motive, lawyers in this State may not delete computer records or take client files … without authorization.” The court concluded that the defendant's misconduct warranted a 90-day suspension from practicing law. Attorney Grievance Comm'n of Maryland v. Potter, 2004 WL 422548 (Md. Mar. 9, 2004).

In an action for breach of an insurance contract, the defendant moved to compel production of documents and requested monetary sanctions, contending that the plaintiff made false statements regarding the location and existence of its documents and destroyed evidence relevant to the lawsuit. Among documents the defendant requested were e-mail communications that the plaintiff sent. Specifically, the defendant sought: “All electronic mail communications sent or received by the Plaintiffs during August 2001, September 2001 and October 2001.” The plaintiff represented to the defendant that the e-mails could not be produced because the plaintiff archived e-mail on its servers for only a 2-week period. The court found these statements false because the plaintiff eventually disclosed the requested e-mails after more investigation. Accordingly, the court awarded the defendant costs and attorneys fees, noting that “[a] reasonable inquiry by the plaintiff's counsel … would have alerted counsel that the plaintiff possessed electronic mail that fell within the scope of Federal's document request … the plaintiff has disregarded its discovery obligations, made misleading statements regarding the existence and location of relevant evidence, and/or failed to make reasonable inquiries into matters pertinent to the pretrial discovery phase of this litigation.” Invision Media Communications, Inc. v. Federal Ins. Co., 2004 WL 396037 (S.D.N.Y. Mar. 2, 2004).

In a collection action, the defendant moved to compel the plaintiff to produce electronic data, including e-mail, spreadsheets and databases. The plaintiff argued that it could not be compelled to produce the documents because it did not have control of the documents as required by Federal Rule of Civil Procedure 34(a). The court determined that under Rule 34(a), the plaintiff possessed the requisite control because the plaintiff had “the right, authority, or ability to obtain the requested document.” The plaintiff also contended that it had produced all electronic documents from its two computer systems that were within its “knowledge and expertise,” and offered to allow the defendant's technicians to inspect the computers. The defendant rejected this offer, stating that it would unreasonably shift the discovery burden and expense to the defendant. The court agreed with the defendant, noting that: “the court cannot relieve a party of its discovery obligations based simply on that party's unsupported assertion that such obligations are unduly burdensome.” The court also found that the plaintiff did not show that complying with the defendant's request would unduly burden the plaintiff in terms of time, money and procedure. The court ordered the plaintiff to produce the electronic documents within 30 days. Super Film of Am., Inc. v. UCB Films, Inc., 219 F.R.D. 649 (D. Kan. 2004).

Attorney's License Suspended for
Deletion of Client Files from Law Firm Computer

The court considered a petition for a disciplinary action filed by the Attorney Grievance Commission against the defendant, an attorney, for violating the Maryland Rules of Professional Conduct. When resigning from a law firm, the defendant took paper files pertaining to two of the firm's clients, stating that he believed the clients would choose to have the defendant continue representing them. The defendant also deleted the client files from the firm's computer without authorization. The computer records included all documents prepared by the defendant and the firm's secretaries relating to matters involving the clients. The commission sought suspension of the attorney's license, alleging that the defendant committed “a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects.” The judge appointed to hear the initial action held that the defendant did not violate the code. However, the court of appeals reversed, finding by “clear and convincing evidence” that the defendant's conduct in deleting the files violated the rules of professional conduct. The court also noted that: “[n]otwithstanding the attorney's motive, lawyers in this State may not delete computer records or take client files … without authorization.” The court concluded that the defendant's misconduct warranted a 90-day suspension from practicing law. Attorney Grievance Comm'n of Maryland v. Potter, 2004 WL 422548 (Md. Mar. 9, 2004).

In an action for breach of an insurance contract, the defendant moved to compel production of documents and requested monetary sanctions, contending that the plaintiff made false statements regarding the location and existence of its documents and destroyed evidence relevant to the lawsuit. Among documents the defendant requested were e-mail communications that the plaintiff sent. Specifically, the defendant sought: “All electronic mail communications sent or received by the Plaintiffs during August 2001, September 2001 and October 2001.” The plaintiff represented to the defendant that the e-mails could not be produced because the plaintiff archived e-mail on its servers for only a 2-week period. The court found these statements false because the plaintiff eventually disclosed the requested e-mails after more investigation. Accordingly, the court awarded the defendant costs and attorneys fees, noting that “[a] reasonable inquiry by the plaintiff's counsel … would have alerted counsel that the plaintiff possessed electronic mail that fell within the scope of Federal's document request … the plaintiff has disregarded its discovery obligations, made misleading statements regarding the existence and location of relevant evidence, and/or failed to make reasonable inquiries into matters pertinent to the pretrial discovery phase of this litigation.” Invision Media Communications, Inc. v. Federal Ins. Co., 2004 WL 396037 (S.D.N.Y. Mar. 2, 2004).

In a collection action, the defendant moved to compel the plaintiff to produce electronic data, including e-mail, spreadsheets and databases. The plaintiff argued that it could not be compelled to produce the documents because it did not have control of the documents as required by Federal Rule of Civil Procedure 34(a). The court determined that under Rule 34(a), the plaintiff possessed the requisite control because the plaintiff had “the right, authority, or ability to obtain the requested document.” The plaintiff also contended that it had produced all electronic documents from its two computer systems that were within its “knowledge and expertise,” and offered to allow the defendant's technicians to inspect the computers. The defendant rejected this offer, stating that it would unreasonably shift the discovery burden and expense to the defendant. The court agreed with the defendant, noting that: “the court cannot relieve a party of its discovery obligations based simply on that party's unsupported assertion that such obligations are unduly burdensome.” The court also found that the plaintiff did not show that complying with the defendant's request would unduly burden the plaintiff in terms of time, money and procedure. The court ordered the plaintiff to produce the electronic documents within 30 days. Super Film of Am., Inc. v. UCB Films, Inc. , 219 F.R.D. 649 (D. Kan. 2004).