Qualcomm and Beyond: More Lawyers Sanctioned for e-Discovery Misconduct (Part 3 of a 3)

Posted by Fortiva Blog Editor

In my previous posts I discussed two cases where lawyers were sanctioned for e-discovery misconduct and reviewed in detail some of legal counsel’s e-discovery obligations.   Here are 2 more cases, each one representing another of counsel’s duties when it comes to e-discovery.

Duty to Advise Client of Preservation Duty & Consequences and Duty to Advise with Specificity 

In Samsung Electronics Co., Ltd. v. Rambus, Inc. 2006, it was found that general admonitions by counsel to preserve relevant documents was insufficient and counsel should have instructed on the subject matter and kinds of documents to preserve.  In its findings, the court discussed the duty of counsel to assure retention of documents relevant to litigation, and criticized counsel with respect to advice given regarding document preservation. 

Duty to Supervise

In Cardenas v. Dorel Juvenile Group, Inc., 2006, the court granted monetary sanctions and emphasized counsel’s duty to adequately supervise the e-discovery process. "Trial counsel have a duty to exercise some degree of oversight over their clients' employees to ensure that they are acting competently, diligently, and ethically.  This includes identifying the persons responsible for the matters that are the subject of the document requests; identifying all employees likely to have been authors, recipients or custodians of documents falling within the request; and reviewing all documents received from the client to see whether they indicate the existence of other documents not previously retrieved or produced.”

While this is by no means an exhaustive list of counsel’s obligations when it comes to e-discovery, the implications are clear; it is now considered the professional, personal, and ethical responsibility of lawyers to ensure that e-Discovery is done, and that it is done right.   

It follows them, that legal counsel needs to be proactive when it comes to understanding, recommending, and implementing email archiving and e-discovery best practices for the organizations they represent.

Read more on the Qualcomm and Beyond series - Part 1 - Part 2 - Part 3 -