Presuit Lawyer Information Duties Relevant to Civil Litigation

Abstract

Presuit Lawyer Information Duties Relevant to Civil Litigation Emeritus Professor Jeffrey A. Parness Northern Illinois University College of Law 105 Marquette University Law Review ___ (forthcoming 2022) In both federal and state courts in the United States, there are significant civil procedure, professional responsibility, and substantive laws addressing presuit lawyer duties on creating, preserving, producing, and protecting information relevant to later civil litigation. These laws speak to lawyer conduct both in personally handling information and in overseeing the information acts of others. To date, the challenges these laws pose to lawyers have not been well examined, or even largely perceived. And, to date, lawyers have been left unaccountable for their personal violations of these duties. This article is the first to survey presuit lawyer information duties. It reviews more general laws that sometimes distinguish between certain types of information (as between esi and nonesi); vary between states; differ in federal and state settings; and, appear in several sources simultaneously (including statutes, court rules, and precedents). It also reviews some very special laws that are applicable to very particular information (like x-rays) or to limited types of lawsuits (like medical malpractice). The challenges posed by these laws are magnified when later civil litigation might involve several possible forums, with multistate lawyer or lawyer-related conduct. The article utilizes the 2001 federal circuit decision in Silvestri v. GMC, a prominent ruling on the federal procedural common law duty to preserve information, to explore presuit lawyer information duties. The paper suggests possible new written laws and common law precedents to serve better the goal of just, speedy and inexpensive determination of every action and proceeding, as well as to guide civil lawyers on their obligations and civil judges on their enforcement powers. In particular, the article urges that lawyers (and their law firms), rather than or together with their clients, be held more personally accountable for presuit information duty violations, not unlike the accountability demanded of lawyers for their presuit pleading violations and for some of their presuit discovery violations. The article encourages greater employment of professional responsibility mechanisms when presuit lawyer information duties are breached, with use prompted by more disciplinary referrals by judges and lawyers that are expressly referenced in civil procedure discovery laws, as in some civil procedure pleading and motion practice laws. Finally, the article demonstrates the opportunities for substantive law claims on behalf of those harmed by presuit lawyer information failures, including claims in spoliation and/or malpractice.