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June 06, 2011

Greene: Court Slaps Plaintiff's Counsel for ESI Sanctions

Judge In Greene v. Netsmart Technologies Inc. (E.D. N.Y., Docket 08-CV-04971) District Judge Thomas Platt ordered plaintiff's counsel to pay half the sanctions imposed on plaintiff, in an order entered June 2, 2011. The sanctions were half of the attorneys fees and costs associated with the defendant's motion as well as half of the cost of the vendor that examined the plaintiff's hard drive and recording device.

Platt adopted the "Report and Recommendation" of U.S. Magistrate Judge A. Kathleen Tomlinson on defendant's motion. Tomlinson had recommended the sanctions using an ordinary negligence standard to determine the appropriateness of sanctions. As detailed in that report, plaintiff had deleted voice recordings, destroyed handwritten notes, and not produced documents until defendant learned of them during plaintiff's deposition or as a result of a third-party examination of plaintiff's computer.

Although the costs involved are modest by some standards (the invoices for the third party's analysis totaled $4,824.25), the Greene case shows that courts are more inclined to hold attorneys responsible for adequate responses to electronically stored information requests in garden variety litigation (Greene is an employment discrimination case). As we are coming up on the fifth anniversary of the ESI amendments to the FRCivP, this is perhaps overdue.

In her report, Tomlinson noted that, "While it is impossible to know precisely why these events occurred, there was clearly a breakdown in communication between Plaintiff and his counsel regarding document preservation and collection," (Report p. 16). Sounds like Paul Newman's oft-quoted line in Cool Hand Luke, "What we have here is a failure to communicate."

Perhaps the most interesting aspect of the opinion is how it demonstrates the thoroughly uncomfortable position in which attorneys who want to point the finger at their clients for discovery failures may find themselves. In plaintiff's objections to the report, counsel Thomas Ricotta of Leeds Morelli & Brown noted that "Because Plaintiff's counsel's response to this point involves attorney client privilege and counsel takes positions that may be adverse to our client on this point, we cannot ethically disclose these issues publicly to opposing counsel. Accordingly we are submitting all argument regarding Plaintiff's counsel's conduct within an ex parte submission."

In his order, Platt noted that he had declined to consider the ex parte communication for counsel's failure to comply with Rule 1.8(b) of New York's Rules of Professional Conduct that provides that "A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules."

In a docket entry entered March 30, 2011, it appears that Platt advised Ricotta that, "The Court informs the parties that he is reluctant to get involved in disputes between counsel and clients. The Court recommends that if there is a question regarding a potential conflict the parties should consult the Bar Association."

In "Defendant's Response to Plaintiff's Objections," the defense asserted that Platt had also offered plaintiffs the opportunity to reopen the issue with the magistrate.

This case serves as yet another reminder that counsel responsible for e-discovery needs to document their instructions to clients, especially if any problems start to surface.

The "Report," "Plaintiff's Objections," "Defendant's Response," and the "Order" are available using Pacer and are also at



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