Court Disagreed that Plaintiff Metadata Reflected Attorney Misconduct
Can metadata steer parties in the wrong direction, or offer information that can be misconstrued or interpreted in the wrong way? This was a question in the case HSBC Bank USA v. Santana Cline, et al., Civil Action No. 2:13-cv-00978 (S.D. Ohio October 25, 2013), where defendants alleged attorney misconduct arising from metadata in the plaintiff ESI production.
Defendants alleged that an attorney from Kansas, Maren Ludwig, and the law office “Morris Laing” was engaging in the unauthorized practice of law, as they were not the attorneys of record on the case and they were not licensed in the jurisdiction to represent the plaintiff.
Defendants made this allegation as the result of metadata found in the plaintiff ESI production. They claimed the metadata showed that Maren Ludwig was the “author” of certain filings and that such evidenced an “ongoing and consistent scheme” to use the plaintiff trial attorney’s law license as a means to file the suit and to effectuate the theft of properties (the underlying case was a foreclosure action.) Defendants further argued that since the out-of-state attorneys subsequently erased the metadata, they were also engaged in spoliation of electronic evidence.
Plaintiff trial attorneys disagreed, and noted that the Ohio Rules of Professional Conduct, specifically Rule 5.5(c), allows for out-of-state attorneys who are not licensed in Ohio to provide temporary legal services to lawyers licensed in Ohio who are actively participating in the underlying matter. Plaintiff’s counsel also noted that the bare metadata does not reflect the collaborate efforts between the attorneys.
The court ruled the defendant’s motion to be without merit, and noted that not only is collaboration between attorneys specifically allowed by the Ohio ethical rules, but is fairly common in the Southern District of Ohio’s federal courts. As long as the licensed attorney takes final responsibility for the pleadings and motion practice, collaboration is wholly consistent with the ethical rules and in practice.