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What’s the Duty of Loyalty in Pre-production Document Review?

by Joshua Gilliland


What is an attorney’s Duty of Loyalty to review discovery documents before producing them to an opposing party? That issue recently arose in Price Waicukauski & Riley v. Murray, a summary judgment battle between a client and his former attorneys.

The Case of Price Waicukauski & Riley v. Murray

The client, Dennis and Margaret Murray, claimed that the law firm, Price Waicukauski & Riley, LLC, had committed malpractice because the attorneys failed to review discovery responses before production to the opposing party – after being directed to do so by their client. Things really went wrong when the client was hit with sanctions, and the law firm denied knowledge of certain documents in court. (Price Waicukauski & Riley v. Murray, 2014 U.S. Dist. LEXIS 130680 (S.D. Ind.Sept. 18, 2014).)

In response, the former client did not offer any expert testimony to show that the law firm had breached their duty of loyalty. Instead, the client argued that no expert testimony was needed, because the client had explicitly directed his attorneys to review the discovery responses before production. Furthermore, the client argued that whether or not the lawyers breached their standard of care was a question “within the common knowledge of the community as a whole or when an attorney’s negligence is so grossly apparent that a layperson would have no difficulty in appraising it.” ( PWR, at *54-55, citing Storey v. Leonas, 904 N.E.2d 229, 238 (Ind. Ct. App. 2009).)

The Court agreed that no expert testimony was needed, because the client had specifically directed the attorneys to review the documents before production. While case law has held that whether attorneys have a personal duty to review documents before production is not within the knowledge of a layperson, the case at bar differed because there was a client directive to review the discovery before production. Simply put, a layperson could understand that lawyers generally have to follow their clients’ instructions. (PWR, at *55, citing Niswander v. Price, Waicukauski & Riley LLC, 2011 U.S. Dist. LEXIS 70412, at *8-9 (S.D. Ind.June 30, 2011).)

Summary judgment was ultimately not granted on this issue, because there was a factual dispute as to whether the attorneys knew about the documents. As such, the issue would have turned on whom a jury would believe, the client or their former attorneys.

Ethical Duties During Document Review

Many state bar associations have stated that “document review” is the practice of law. (See, e.g., North Carolina in Lola v. Skadden, Arps, Slate, Meagher & Flom LLP, 2014 U.S. Dist. LEXIS 130604 (S.D.N.Y.Sept. 16, 2014).)

As such, whether or not a lawyer has breached his ethical duties would require expert testimony on whether or not the standard of care had been breached. However, that all changes if a client asks an attorney, “Can you review these specific documents before you produce them?”

Our ability to conduct document review with analytical software allows attorneys to review the documents which are relevant to a case. In our modern age, in which people send emails, text messages, social media updates, and more, it is unrealistic for lawyers to look at every document – especially when that data can come to a terabyte from a single laptop. Moreover, no court would find that a lawyer breached his duty of care for not reviewing duplicate files removed by software during de-duplication. Today’s technology to reduce data down to what is relevant can help avoid protracted document review, allowing attorneys to focus on the ESI that supports the merits of a case.

Let’s say a client requests that a lawyer review specific communications between the client’s personal email and another individual – such as a spouse or clergy member – for privileged communication. A document review tool can quickly find all of the email messages between the relevant individuals, enabling an attorney to more quickly review.

Lawyers can use processing and analytical search features to exclude irrelevant data, based upon date ranges, key individuals, key words, and other objective information. This empowers attorneys to determine which ESI supports their clients’ claims and defenses, instead of spending valuable time reading one email message at a time.

The Takeaway

In the end, document review is the bedrock of discovery. Missing relevant documents or inadvertently producing privileged communications can have a disastrous effect on a case. However, leveraging ediscovery software features can help attorneys determine what is relevant, respond to discovery requests with confidence, and prepare their case for trial.