Court Orders Cloning of a Nonparty Attorney's Computer
By Angela Foster, Litigation News Contributing Editor – December 26, 2012

After a recent New York court decision, attorneys called as a nonparty witness should beware. All of their computer files—privileged or not—may be subject to a forensic search.

Generally, the rules of civil of procedure, New York CPLR § 3101, and Federal Rule 34 provide that all parties are required to preserve evidence that is likely to be relevant in reasonably anticipated, threatened, or pending litigation. Evidence includes hard copy documents and electronically stored information (ESI). Attorneys must balance this obligation with the duty to protect their client’s confidential information. ABA Model Rule 1.6 provides a lawyer must make reasonable efforts to prevent inadvertent or unauthorized disclosure, or unauthorized access to information relating to representation of a client. In the absence of the client's informed consent, an attorney must not reveal information relating to the representation. According to a New York court, if a nonparty attorney has failed to produce documents, cloning of the attorney’s computer files is permissible provided doing so does not create an unreasonable burden and appropriate steps are taken to protect privileged information.

Dispute over Will Leads to Cloning of Attorney’s Computer
In In the Matters of Tilimbo v. Posimato [PDF], parties sought to set aside a deed transfer based on alleged undue influence and conflict of interest. The decedent and his sister each owned 50 percent of a real property. In 2000, for unknown reasons, the sister, who was 86 at the time, transferred her 50 percent interest in the property to her brother, the decedent. Four months later, the decedent executed a will naming his female friend as sole beneficiary. The decedent died five years later and was survived by his sister and her two children.

The sister and her children sued, alleging that the sister had deeded her interest in the property to the decedent solely as a result of undue influence exerted upon her by the decedent. The decedent’s female friend’s son, on behalf of his mother, alleged his mother owned 100 percent of the property because of the duly executed will.

The plaintiffs alleged that the same attorney who drafted the decedent’s sister’s will also represented the decedent at the time the sister signed the deed transfer and that he was a material witness to their undue influence claim. The attorney contended that he represented the sister at that time of the deed transfer and that the decedent was unrepresented.

During a deposition, the attorney testified that his entire paper file for the sister was lost except a copy of the deed relating to the deed transfer; however, he “might” have computer files relating to the decedent and his sister. Therefore, the court directed the attorney to conduct a diligent search of his computer and forward documents to the plaintiffs, or to provide an affirmation that no documents were located after a diligent search.

The attorney forwarded an affirmation stating that he had conducted a diligent search of his computer and that the only documents he found were the last wills of the decedent and his sister. The attorney also stated he could not recall who paid him for the deed transfer.

The plaintiffs moved for an order permitting their forensic computer expert to examine and clone the attorney’s computer to search for documents referring to the decedent’s sister, her will, and the disputed deed transfer. In response, the attorney asserted the attorney-client privilege regarding information relating to other clients. The court granted the plaintiffs’ motion and instructed that an undue burden and expense was not placed upon the attorney and that his attorney-client privilege information be protected.

“Attorneys should be very afraid,” states Betsy P. Collins, Mobile, AL, cochair of the ABA Section of Litigation’s Pretrial Practice and Discovery Committee. She believes “this decision opens doors for either party to request the cloning of the computer of an attorney or third party.”

Unreasonable Burden
Applying a cost-benefit analysis, the court noted that any significant disruption to the attorney’s law practice outweighed the benefits that the plaintiffs might obtain from the information provided by the cloning.Therefore, the court concluded that an unreasonable burden would not be placed upon the attorney if the cloning occurred at the attorney’s office in four hours or less on a date and time the attorney selected, or during the weekend.

“Despite the court’s efforts to prevent undue burden, the actions ordered by the court clearly would be disruptive to the business of the solo practice attorney,” says Collins. “The attorney is an officer of the court, and I’m surprised the court refused to accept his word that he searched his computer.”

Duty to Protect Confidentiality
Addressing attorney-client privilege issues, the court directed the forensic computer expert to review the attorney’s computer only for documents that referred to the sister. In the event the forensic computer expert inadvertently began examining information that was not related to the sister, the computer expert was directed to immediately cease examination of that file.

All information retrieved related to the sister, her will, or the deed transfer would be mailed to the attorney and counsel for the decedent’s female friend and son. The parties had 14 days from receipt of the ESI to object to disclosure to the plaintiffs and request an in camera inspection by the court. If no objections were made or the court determined the ESI was to be disclosed, the forensic computer expert was required to forward the ESI to the plaintiffs.

 “This case is a warning that just because you are attorneys and claim work-product or attorney-client privilege, doesn’t make it so,” says Nathaniel J. Cade Jr., Milwaukee, member of the ABA Standing Committee on Ethics and Professional Responsibility and past cochair of the Section’s Products Liability Committee. Although the attorney was afforded some protection (having 14 days from the receipt of documents to object to disclosure to the plaintiffs), the damage was possibly already done at that point because the material was already forwarded to another attorney, opines Cade.

Lessons Learned
Cade cautions attorneys to back up electronic material, run conflict checks, note how conflicts were identified, and save materials for longer than the statute of limitation. Echoing that advice, Collins says the best practice would be for attorneys to set up their business so they can say with some degree of certainty that hard copy or computer information is the complete file.

Attorneys should know the rules of their jurisdiction, says Michael P. Downey, St. Louis, chair of the Rules and Regulations Subcommittee in the Section’s Ethics & Professionalism Committee, noting by rule that Missouri generally allows lawyers to destroy client files after 10 years. He advises that attorneys must know their client’s retention policy and try to mirror it.

The duty to preserve evidence for reasonably foreseeable litigation is mandatory and sanctions are applicable, reminds Loren Kieve, San Francisco, cochair of the Section’s Task Force on Attorney-Client Privilege. Kieve notes that the Federal Circuit recently held that “reasonably foreseeable” is a flexible fact-specific standard, and document retention policies should be put in place early—before parties are actively seeking litigation.

Keywords: attorney-client privilege, ESI, preservation of evidence

 
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