Extract from Ralph Losey’s article “Judge Pauley Reminds Lawyers Of Their Duty To Verify Client Representations”
Senior SDNY District Court Judge William Pauley recently reminded the Bar of “the importance of verifying a client’s representations.” Lawrence v. City of N.Y., Case No. 15cv8947 (SDNY, 7/27/18) copy linked. Amen to that! As will be explained, in e-Discovery authenticity of “documents,” which are really nothing more than ephemeral computer files, zeros and ones, is a constant concern. If an electronic document is too good to be true, it may not be. It is important that you question the origin of important evidence, that you ignore popular wisdom and look a gift horse in the mouth.
If it is key electronic evidence, then give it a full dental exam, including especially the metadata. Plaintiff’s counsel in this case failed to do that. He barely glanced at the horse. As a result the case was lost and so was he. He was forced to withdraw and almost personally sanctioned for violation of Rule 3.3 Candor Toward The Tribunal, ABA Model Rules of Professional Conduct. Also see: Attorney Avoids Sanctions Over Client’s ‘Staged Photos’ (Bloomberg Law 7/31/18) (“Attorney won’t be sanctioned for failing to discover that his client had lied about when digital photos were taken in order to support her case against New York City police officers.”).
