Does Failure to Issue a Litigation Hold Mean a Breach of the Duty to Not Suppress Evidence?

12 Sep 2014

This week our blog has been reviewing the California Bar Association’s Formal Interim Opinion No. 11-0004. The last two posts reviewed the hypothetical scenario of an attorney who was not well-versed in ESI litigation and failed to consult with an electronic evidence expert. As a result, the attorney breached his duty of competence and duty of confidentiality in respect to tendering privileged and proprietary information, among other issues. However, the ethical breaches continue.

The opinion points out that although there are legal ramifications for the suppression of evidence, there are ethical consequences as well. In addition to the duty to not suppress evidence, the duty of candor also interplays in this scenario. The opinion highlights the fact that if a client engages in suppression or destruction of evidence, even if an attorney knew nothing about such actions, the attorney may be in trouble for preventing the evidence destruction.

The best way for a plaintiff trial attorney to protect him or herself from accusations of ESI spoliation is to issue and oversee a litigation hold on the client or entity.

When Should a Litigation Hold Be Implemented?

It is important to remember that the duty to preserve evidence begins not with a case being filed, but when litigation is reasonably foreseeable.  Additionally, past case law suggests that a litigation hold is more than just a directive, a prudent attorney should oversee the litigation hold to ensure the directive was not only received, but is being carried out.

ESI Spoliation and the Duty of Candor

Finally, the opinion discusses how not all ethical duties are owed to the client; some are owed to the court. The duty of candor is the ethical obligation to not mislead the court or offer personal knowledge of the case (except when testifying as a witness.)

In the hypothetical, the attorney breached the duty of candor when he informed the court that he had reviewed the ESI and that his client was in full compliance with the court order and discovery obligations. In fact, he had not reviewed the data and his client was not in compliance, which he learned only after reviewing opposing counsel’s Motion for Spoliation Sanctions.

The bottom line? Even highly experienced and qualified attorneys can run into ethical problems regarding electronically stored evidence. The best way to protect yourself? Consult with an ESI expert early in the case and avoid accusations of ethical breaches and prejudice to clients.

ILS – Plaintiff Electronic Discovery Experts