Mindful Ethics:
Professional Responsibility for
Lawyers in the Digital Age

Class Two
August 26
The Road to Discovery -- Documents and Yourself

This week we are introduced to two young lawyers whose legal careers we will follow over the course of the semester. Mindy Fuller is a third year associate at a large corporate law firm. Pedro Respono has just joined the firm. Pedro’s journey begins with his first big case and the various ethical questions that emerge as he makes his way through this exciting and challenging time in his career.

Pedro Respono is excited and nervous to begin work as an associate at a big firm. He had clerked with the firm during his 2L summer but today marks the start of his professional career. He is assigned to the litigation team working on a major commercial case that involves a patent dispute concerning the ownership of new cutting-edge technology.

Mindy Fuller, now a third-year associate and Pedro’s friend since law school, tells Pedro that it is a great assignment because he will be working with Laura, one of the firm’s most ambitious and successful young partners, and Larry, one of the firm’s most experienced paralegals.

The case is currently in discovery and Pedro is assigned to review the pleadings so that he can assist with the document review and deposition preparation. As Pedro reviews the documents produced by the opposing party, he finds a group of documents that appear to be inadvertently produced; there are letters between the opposing attorney and his client discussing the case strategy and possible witnesses. Unsure of what to do, Pedro takes copies of the documents to Laura. She begins taking copious notes and then thanks him for being so thorough.

Later that week, Pedro asks Larry, who is cataloging these discovery documents, whether there is anything wrong with using them since they seem to have been accidentally produced. Larry comments that it’s not the firm’s fault that the other side might have produced the wrong documents. Sensing that Pedro was still doubtful, he reassures him that the legal ethics rules don’t require a lawyer to return inadvertently produced documents. “Don’t worry about it,” he tells Pedro.

Larry changes the conversation, showing Pedro how he is using Facebook to “friend” as many of the other side’s witnesses as possible to gather additional information for depositions and cross examination.

Pedro decides to focus his energy on assisting Laura in preparing their client’s employees for depositions. He accompanies Laura to prepare the main witnesses and impresses her with his knowledge of the case. She allows Pedro to prepare one of the minor witnesses while she observes. Laura tells Pedro that he has done a great job and asks him to prepare other witnesses on his own with Larry’s assistance.

Pedro works late into the night studying the case and reviewing the relevant documents to prepare his first witness. He drafts mock questions so that not only will the witness be prepared, but he will be sharpening his skills.

The next day, Pedro meets with Claire, one of the client’s employees who is on the witness list. Pedro carefully reviews the documents with her and asks her questions as if he is the opposing counsel. Pedro’s thoroughness results in Claire discussing documents with which Pedro is unfamiliar. Pedro asks her about them and she shows him 21 emails that appear to be relevant to the discovery requests but have not been produced. Pedro wonders whether the keywords used for the electronic discovery search were adequate to cover these emails.

Pedro reports to Laura on his meeting with Claire and provides her and Larry with copies of the 21 additional emails. Laura looks at the first several documents and explains that they either are not responsive to the discovery request or they are privileged.

While Pedro is unsure about Laura’s decision, he feels comforted that he raised it with her and reminds himself that just because he might decide differently doesn’t mean that he’s right. Pedro is excited about the prospect of participating as third chair at the trial, defined as “the learning seat.” He is there to take notes, run errands and absorb as much as possible.

The trial begins and Pedro is ecstatic! This opportunity is why he attended law school---Pedro updates his friends on Facebook every evening as to the happenings at the trial. He has also started a young lawyer’s blog on which he describes the trial, which appears to be going well for his client.

Unfortunately, midway through the trial, Pedro’s dream turns into a nightmare. Laura demolished a witness during cross-examination using notes she had taken from the inadvertently produced documents and the information that Larry had obtained from the Facebook witnesses. Opposing counsel is outraged and moves to disqualify the firm.

The client is confused and upset.

Then, on cross-examination Claire referred to some of the 21 emails that were not produced. When Claire is asked whether she had discussed them with any of her lawyers, Laura interjects and raises the attorney-client privilege.

The Judge is losing his patience and orders the firm to revisit the electronic search. Pedro looks over the original discovery request and more fully appreciated that the e-mails were responsive. In fact, when appropriate keywords are entered, the search reveals not just the 21 e-mails but an additional 46,000 documents that should have been produced.

The Judge disqualifies the firm from representing the client based on Laura’s improper use of the information from the inadvertently produced documents, sanctions Laura for the discovery violations, and refers her to the state bar. She resigns from the firm in disgrace.

The Judge calls Pedro aside during a recess and tells him that he narrowly escaped being reported to the Bar. Pedro silently recollects his conversations with Claire about the discovery issues and nods.

A few months later, during Pedro’s annual review, the managing partner tells Pedro that the firm was extremely disappointed with his handling of the discovery matters in the case and his failure to speak with someone other than Laura and Larry at the firm. The partner says that the firm’s reputation has been damaged by the case and the firm has decided to terminate Pedro’s employment. Pedro feels sick and disillusioned as he ponders the events and his future.


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