Ethics mix with e-discovery for attorneys in smaller courts

Listen to this article

State rules require consideration in certain cases

On the surface, a minor dog bite case does not seem like a logical instance in which electronic discovery of evidence is necessary.

But overlooking or underestimating the value of e-discovery, even in the smallest of cases, could cheat clients and pote\ntially lead to ethical violations for attorneys, said e-discovery lawyer Sharon Nelson, of Sensei Enterprises Inc., Fairfax, Va.

“What if that person who got bit by the dog writes her mom on the computer and says, ‘You know, I’m not hurt very bad, but I think I can jack this up into a heck of a settlement,’” Nelson said. “Now you’ve got electronic evidence in a dog bite case.”

Even though e-discovery is recognized as a requirement in the vast majority of complex and corporate business cases, Nelson said the need was less obvious in areas such as personal injury, divorce or debt collection. That especially is true in smaller cases, she said, but e-discovery is no less important because attorneys who avoid it altogether can put their careers and clients at risk.

“We’ve actually seen people say they won’t go near electronic evidence if you won’t,” she said. “They make this kind of devil’s bargain.

“Then you haven’t served your client diligently, so you’ve violated your ethical rules at the very least.”

Still, Nelson and others said attorneys often were reluctant to embrace the idea in smaller cases. The primary reason is cost, but there also is a deliberate ignorance on the part of practitioners, said Appleton e-discovery lawyer Bruce Olson, of ONLAW Trial Technologies LLC.

“They just didn’t want to get into it,” he said. “But it was as much lack of knowledge on their part to make an informed decision about whether they should spend any money to engage in e-discovery or not.”

While federal e-discovery rules have been around since 2006, Wisconsin’s version took effect Jan. 1, 2011, and attorneys still are adapting to the changes, which include a requirement that lawyers meet to discuss the extent of e-discovery in cases where there is a need.

Brookfield personal injury plaintiff’s lawyer Jeff Zirgibel, of Pasternak & Zirgibel SC, said in run of the mill car accident cases, e-discovery wasn’t something he would pursue, unless there was an indication that evidence electronically was buried.

“If there is a drunken driving case, I will want to see a Facebook page,” he said, “to see if there were pictures of a party and drinking. That kind of stuff could lend itself to punitive damages in a case.”

But especially in smaller cases, Zirgibel said, he has to justify a reason to engage in e-discovery before asking a judge for authorization to seize a defendant’s computer.

“You can’t just go fishing in front of a judge,” he said. “You’ve got to do due diligence elsewhere before throwing down on e-discovery.”

Madison employment law attorney Tim Edwards, of Axley Brynelson LLP, said one of the concerns expressed when the Wisconsin Supreme Court adopted an e-discovery rule was if the meet and confer requirement would burden lawyers in smaller cases.

But in his experience, Edwards said, that hasn’t been the case. As chairman of Axley’s Electronic Discovery & Records Management Team, he said those initial meetings with the opposing party could save time and money, even in minor cases.

“If you screw up and are 15 weeks or six months into a case where nobody had done that,” he said, “you will get back a bunch of garbage that will be expensive to sort through and probably have stuff missing.”

Such situations create an ethical nightmare for attorneys, he said, who could be susceptible to malpractice claims if they breach their obligation to at least consider the possibility of e-discovery.

The risk of suspension isn’t worth turning a blind eye, Olson said, and technology increasingly is tailored to attorneys handling e-discovery in smaller cases.

Document management software such as Quick View Plus retails for about $50, he said, and can translate a CDs worth of electronic data in a variety of formats and allow attorneys to look at different documents. Another option for managing a small volume of email in discovery, Olson said, is Adobe Acrobat, which is free.

“A lot of attorneys think they have to have every single native application to look at things,” he said. “The market realizes that not everyone has the money to do to that.”

When considering the extent of e-discovery in a case, Zirgibel said he tried to balance cost concerns with ethical obligations.

He recently represented a client bitten by a dog and had heard rumors that the canine was a repeat offender, which would warrant double damages for his client.

Zirgibel said he considered a court request to investigate the defendant’s Facebook page and email for evidence supporting the allegation, but wound up getting his proof the old-fashioned way.

“I found a second incident report and one witness who had also been bitten,” he said. “That was all I needed.”

But Zirgibel said he wouldn’t hesitate to consider using e-discovery on cases going forward, no matter the size.

“I always consider that possibility, especially if its dogs, drinking or teenagers,” he said. “Especially with Facebook or texts. The stuff that gets posted or sent can be mind-blowing.”