Biglaw Partner And Associate Destroyed Evidence, Suborned Perjury
What Biglaw firm is in hot water for ordering the destruction of dox?
Ask any litigator, or anyone familiar with the often Herculean task of document review, and they will tell you that documents make the cases go ’round. The everyday emails, texts, memos, etc. create the backbone of litigation, and though you may hope for a true smoking gun to gleefully put in front of a witness at deposition, it is often the innocuous communications that compose the substance of the underlying conflict.
Suffice it to say lawyers take their documents pretty seriously, so it isn’t much of a surprise that a judge would be angry when it turns out a Biglaw firm ordered their clients to destroy evidence — after the complaint had been filed.
It all started when All American Pet Proteins hired Bryan Cave to advise them — before any complaint had been filed — on transition matters as the principals were leaving a competitor, Premium Pet Health, to start their own business. Pre-litigation, one of Bryan Cave’s clients, John Landers, took it upon himself to rid his personal email inbox (from which he regularly conducted business) of all Premium Pet Health documents.
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Though, as the court notes, this is a separate concern for spoliation, the real trouble for Bryan Cave started after this deed had been done. Then a complaint was filed — but a litigation hold was not immediately put in place. Which may not be a giant deal, except between the filing of the complaint and any document retention, Bryan Cave associate Sarah Hartley ordered the client to destroy additional documents.
Rut roh.
Bryan Cave claims it was all a “miscommunication.” It seems the managing partner of the Denver office, Randall Miller, asked Hartley to “confirm” that Landers was no longer in possession of any Premium Pet Health emails (since Landers had deleted them), and Hartley took that to mean go ahead and get rid of any remaining emails. And apparently there were plenty of emails left post-complaint, as Landers had only deleted materials from his inbox — not sent mail, any subfolders, or archives.
Judicial District Court Chief Judge Michael A. Martinez did not take kindly to any of this nonsense:
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The Court is deeply troubled by the post-complaint destruction of ESI as well as Bryan Cave’s involvement in the spoliation. The Court is further concerned by the omissions and half-truths that have pervaded Defendants’ and Bryan Cave’s explanations regarding the post-complaint spoliation.
Listen, mistakes happen — but often the best course of action post-f*ck up is to admit it immediately and throw yourself on the mercy of whomever is in charge. “Omissions and half-truths?” Not a good look on anyone.
Here, the Court finds that Defendants and counsel at Bryan Cave have engaged in reckless and bad faith conduct that… is a “flagrant disregard [and] dereliction of discovery obligation” … Hartley instructed her clients to destroy ESI that was relevant to an ongoing lawsuit… The relevance of the evidence was not by chance; Hartley ordered the deletion of the emails precisely because of their relevance to the claims at issue. The Court cannot summon a more serious violation of the basic document preservation guidelines and discovery obligations.
Did the judge just call the attorney basic? No. It was so much worse, especially in a professional context.
Well, at least it was a single incident and the parties involved can work through the matter. What’s that? Oh, there is more.
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The ever-helpful Landers also submitted an affidavit in the case stating that he had no Premium Pet Health materials — the day after he deleted all Premium Pet Health materials. Judge Martinez took particular issue with this turn of events, since Bryan Cave partner Randall Miller was aware of this before he filed the affidavit:
[Miller] reviewed the Landers Affidavit and filed it … thereby suborning perjured testimony… Miller also failed to alert the Court or opposing counsel to the spoliation that Bryan Cave had ordered the day before, another clear violation of professional and ethical obligations.
Lastly, we have our friend insult joining injury:
Defendants have attempted to downplay the post-complaint spoliation by describing it as a miscommunication and the mistake of a “young lawyer”… the “young lawyer” Hartley is a Yale-educated attorney with 10 years of experience.
Judge Martinez went out of his way to call Hartley old. That’s just cold, man.
The court ordered an adverse inference instruction to be given as a result of the spoliation and overruled Bryan Cave’s assertion of privilege over evidence related to the issue. And the defendants have to pay all the legal fees, natch.
We reached out to Bryan Cave. The firm informed us that it could not comment on this ongoing litigation.
Not a great day for Bryan Cave. You can read both court orders in this matter on the next page.
