ESI: Who has what?

Lawyer works at Firm and represents Client.  Lawyer leaves for another job, Client’s paper files (and business) follow.   Some of Client’s information, however, remains at Firm.  In particular, electronically stored files that include sensitive information.

Scenario:

  • Person becomes involved in a dispute with Client.
  • Lawyer represents Client.
  • The dispute is substantially related to a matter in which Lawyer initially represented Client while formerly employed at Firm.
  • The electronically stored files that Lawyer left behind include a strategy memo that outlines Client’s strategy to the entire case.

Question:  can Firm represent Client?

  • A.  No
  • B.  Yes
  • C.   Yes, as long as any review of the ESI is limited to info needed to determine whether a conflict exists.

The Analysis

The Rule

Rule 1.10(b) says:

  • “When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm unless:
    1. the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and
    2.  any lawyer remaining in the firm has information that protected by Rules 1.6 and 1.9(c) that is material to the matter.

The Issue

From the facts, we know that Person’s interests are materially adverse to Client’s and that the instant matter is substantially related to the matter in which Lawyer represented Client while still employed at firm.  So, the issue becomes Rule 1.10(b)(2): whether any lawyer remaining at Firm has information that is protected by Rules 1.6 and 1.9(c) that is material to the matter.

What say ye?  The electronically stored information is protected and is material to the matters.  Do the remaining lawyers have it?

A New Jersey court recently addressed this exact issue.

The New Jersey Case

The case is Estate of Kennedy v. Rosenblatt.  The opinion is HERE.  A quick recap:

  • Plaintiff sued the Estate of Kennedy.
  • Firm represented Estate.
  • Plaintiff voluntarily dismissed complaint.
  • Estate’s lawyers left Firm, taking Estate and its paper files with them.
  • Oddly, Plaintiff’s lawyer joined Firm, where he recommenced suit against Estate.
  • Firm acted to “wall off” lawyers assigned to Plaintiff  from reviewing Estate’s electronically stored information.
  • Senior Lawyer and Firm’s IT staff conducted an analysis of the electronic file.
  • Estate’s lawyers, who used to be a Firm, moved to disqualify Firm.

A trial court granted the motion.  An interlocutory appeal followed.

On appeal, there was no dispute that the two matters were substantially related. Nor was there any dispute that the electronic files were protected by Rules 1.6 and 1.9(c). The only dispute was over the meaning of “has information.”

Plaintiff argued that “has information” means “has actual knowledge of the information and its contents.”

The Estate argued that “has information” means “has access to.”  In the alternative, Estate argued that the senior lawyer who analyzed the electronic information gained knowledge thereof and, as such, “had” the information.

The Court concluded that “has information” means:

  • has actual knowledge; or
  • has accessed the electronic file; but,
  • there’s an exception for limited access made to investigate a potential conflict.

The court remanded the matter to the trial court for further proceedings.  Specifically, the court noted that the record did not contain sufficient information for it to determine whether Senior Lawyer “has” any information.  Among other questions the court instructed the trial court to address:

  • did Senior Lawyer merely access metadata to determine who had accessed the substantive contents of the electronic file?
  • did Senior Lawyer look only at the names of various files?
  • or, did Senior Lawyer (or anyone else) access and read substantive content, including the strategy memo?

In sum, the appellate court suggested that the trial court should not disqualify firm if Senior Lawyer’s review was limited to accessing only that information needed to determine whether a conflict existed.  Such a limited review is not the equivalent of “having” information.

 

 

 

 

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