Case Law: Long v. Fairbank Farms, Inc.

Third Party Defendant Ordered to Show Cause Why it Should Not Be Held in Contempt on Account of Alleged Misrepresentations

Long v. Fairbank Farms, Inc., 2011 WL 722767 (D. Me. Feb. 17, 2011). In this discovery dispute, the defendants sought to compel production, impose sanctions and require a third party defendant to show cause why it should not be held in contempt of court for accessing documents designated as for “Attorneys’ Eyes Only.” Despite finding discovery violations relating to two of five categories of documents allegedly withheld or destroyed, the court declined to impose sanctions or compel production as extraordinary relief had already been granted in a previous order permitting mirror-imaging. Regarding the next issue, attorneys for the third party defendant claimed they erroneously disseminated materials to their client marked “Attorneys’ Eyes Only,” pulled the documents back and confirmed the client had not since accessed them. However, the defendants produced evidence that a separate copy of the disclosure file was created and accessed using a USB storage drive on at least two occasions and the file had been transferred to an iPod or iPhone. In light of this evidence, the court ordered the third party defendant to show cause as to why it should not be held in contempt on account of the alleged misrepresentations.

Commentary

Rule 4.4(b) of the Model Rules of Professional Conduct reads:

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

Although the third party defendant who was ordered to show cause in this case was not a lawyer, legal professionals should remember that these Model Rules apply to ediscovery issues as well, even if they have not been formally adopted by the ABA. For example, in March 2010, the Supreme Court of New Jersey issued Stengart v. Loving Care Agency, Inc., which addressed whether the attorney-client privilege attaches to e-mails sent via a web-based e-mail account over company servers. However, the court also referred the case back to the trial court to determine what remedy was appropriate to discipline the defendant’s attorneys for their violation of Rule 4.4(b). The defendant’s attorneys discovered the arguably privileged messages and did not set them aside, notify the plaintiff or seek court permission for use. Instead, they retained a computer forensic expert to retrieve the privileged e-mails from the company system and read through them. At the current time, the trial court has yet to rule regarding what discipline it will impose based on the attorneys’ violation of Rule 4.4(b).

Ethical responsibilities have always been a gray area, which is certainly further complicated by the addition of new technologies that lawyers are faced with on a daily basis. We have discussed several times the impact social media sites are having in discovery and the impact of ethical obligations, and another hot trend – cloud computing – also raises interesting ethical issues, particularly around areas of competence and confidentiality of information. Lawyers must develop a stronger understanding of electronic discovery in general and this delicate interplay with ethical obligations to help them avoid negative consequences