• March 11, 2016

SpankingU.S. Mag. Judge Steven E. Rau (D. Minn.) sanctioned a party to civil litigation for discovery violations: deletion of text messages, failure to produce emails, and other lapses (to put it charitably). This week, U.S. District Court Judge Patrick J. Schiltz largely overruled the objections to Judge Rau’s sanctions. In response to the defendants’ finger-pointing at their previous lawyer (Mr. Jon Drucker of Beverly Hills, California), Judge Schiltz pointed out:

A party is responsible for the conduct of his or her attorney—and, if the consequences of an attorney’s misconduct must be borne by someone, those consequences should be borne by the party who hired the attorney rather than by that party’s opponent.

But isn’t there a problem with that reasoning?  If the consequences of an attorney’s misconduct must be borne by someone, shouldn’t they be borne by the attorney, not the party who hired the attorney (certainly not the party’s opponent, of course). Yet, notably, Judges Rau and Schiltz suggested that the defendants themselves were personally responsible and culpable for discovery violations, not just their lawyer.

Still, sanctions are sanctions. They are punishments. They have financial ramifications and reputational ramifications. Even though the linked order does not really stand for the proposition that “a party is responsible for the conduct of his or her attorney,” I think it should be underscored that parties should not generally be responsible for the misconduct of their attorneys.

Turning back to the specific case, the FFS v. Lee case has just about every indicium of e-discovery sanction-risk that I have highlighted in previous Minnesota Litigator posts.

Photo by Jonathan Rotondo-McCord

Photo by Jonathan Rotondo-McCord

First, we appear to have foreign (non-native to the U.S.) clients. People from other cultures sometimes do not fully appreciate or understand our civil justice system and, in particular, both the breadth and the obligations of their compliance with discovery rules.  Who doesn’t have a story of a foreign client who failed to appreciate U.S. court rules and caused at least some heartburn (or worse, a lot worse) along the way? (Judge Schiltz gave “little credence” to defendants’ claims of “lack of sophistication and difficulty with the English language” and I have no basis to argue the point one way or the other about these defendants. But, having personally experienced profound cultural disconnects with non-U.S.-origin clients — clients who seemed almost incapable of fathoming the scope of their obligations as civil litigants — I am not sure I would be as dismissive of these clients’ pleas. Before sanctioning the clients, I would want to get into their lawyer’s communications with them to see whether the lawyer communicated the obligations, whether he explained the means of compliance, the importance of compliance, and the consequences of non-compliance. I concede that one might encounter high evidentiary hurdles with this approach, however (privilege, he said/they said disputes, and the like).

Second, we have “large law firm” vs. solo lawyer — that is, we have a technological asymmetry and drastically differing levels of experience with regard to the scope of e-discovery and the nature of the lawyer’s (and his client’s) obligations with regard to e-discovery.

Third, we have not only a solo lawyer but a relatively older lawyer, a lawyer educated and trained in the predigital world. Civil litigation is not what it used to be. If you do not know a tiff from a gif, thumb drives from device drivers, an operating system from a browser, etc., etc., and if you do not invest in the help of an e-discovery services vendor or consultant, you face a very high risk of frying your “bios” (basic input output system), as it were, in a case where e-discovery is taken seriously (which is not the case in all civil litigation by any means).

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