The State Bar Association of North Dakota Fall 2014 Gavel Magazine | Page 26

STEALTH DISCOVERY - CAN LAWYERS
BUY LITIGATION OPPONENT’S USED
COMPUTER EQUIPMENT?
of information from the hard drive, which
the defendant-owner had attempted to
obliterate by reformatting the hard drive and
installing a new operating system.

JUSTICE DANIEL CROTHERS
North Dakota Supreme Court
Can a lawyer (or a client at the lawyer’s
direction) buy a litigation opponent’s
used computer equipment? If so, can the
buyer hire a forensic computer expert to
attempt recovering the opponent’s deleted
or concealed data from the computer?
A Washington federal district court
answered these questions by denying
the former computer owner’s motion
to disqualify opposing counsel and by
requiring a process for the former owner
to assert the attorney-client privilege
before any recovered information could be
used in subsequent proceedings.1
The Facts:
Plaintiffs and defendants were litigating
a commercial dispute. Several defendants
settled by confessing judgment in
plaintiffs’ favor. Plaintiffs obtained a
writ of execution, and the sheriff seized
personal property from one of the
settling defendants, including a personal
computer. The computer was sold at public
auction with plaintiffs’ counsel prevailing
in a bidding war with defendants’
representative. Plaintiffs’ counsel then sent
the computer to a third party for recovery
26

THE GAVEL

When plaintiffs tried using some of the
recovered information in a later court
proceeding defendants moved to disqualify
plaintiffs’ counsel. Plaintiff resisted
disqualification and moved to allow use of
the evidence, claiming defendant waived any
privilege that might attach to information
contained on the computer. This article
discusses the disqualification motion and an
article in the next Gavel will explore issues
related to the privilege claims.
Attorney Disqualification:
The court recognized that a litigation
party who wrongfully obtains documents
outside the normal discovery process can
be subject to sanctions, including dismissal
of the action or disqualification of counsel.2
Yet the Kyko court concluded defendants
improperly relied “on a case applying an
old version of the model ethical rules
and an outdated ABA opinion.”3 Instead
they should have relied on current Rule
of Professional Conduct 4.4 which only
requires notice to opposing parties and
does not require return of inadvertently
sent documents.4 As a result, the court
ruled plaintiffs’ acquisition of the computer
was not “inherently wrongful” and
disqualification was not required on that
basis.5
First, legitimate discussion can be had
whether documents forensically extracted
from an opposing party’s computer sold at
public auction were “inadvertently sent” to
plaintiffs by the defendants, as contempla