Model Rule 3.3 and Electronic Discovery

The American Bar Association's Model Rule 3.3 imposes a duty of candor on attorneys requiring them to, "offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal."

Rule 3.3 is relevant to electronic discovery with respect to a counsel's discussion of his or her client's ability to locate electronically stored information; the thoroughness of a search performed by a client of its network data; and contents of electronic productions. See a post on the ABA's site here.

Obligations under Rule 3.3 may override an attorney's duty to protect the confidentiality of a client's data.

A decision by Judge Joy Flowers Conti of the United States District Court for the Western District of Pennsylvania quoted Rule 3.3 of the Pennsylvania Rules of Professional Conduct, "failure to make a disclosure is the equivalent of an affirmative misrepresentation." Hohider v. UPS, 257 F.R.D. 80, 82 (W.D. Pa. 2009). Judge Conti faulted the Defendant for failing to be candid with her about its preservation. "For example, defendant's counsel wrote a letter to plaintiffs' counsel in 2005 stating that defendant was 'in the process of placing a 'Hold,' as that term is defined in the UPS Records Manual, on all categories of documents requested by Plaintiffs in the litigation.' (J. Culleiton letter to C. Bagin at 3-4, May 3, 2005.) It was also represented to plaintiffs' counsel that defendant was 'even going a step further and disseminating a memorandum to applicable managers throughout the Company which describes the litigation and further details the records that are to be held from destruction.' (Id.) Defendant, however, did not issue the hold at that time, did not disseminate the hold memorandum, and it did not advise plaintiffs of its failure to do so. " Id.