Thursday, February 7, 2019

More Ante Upping In New Jersey

On the recommendation of its Disciplinary Review Board, the New Jersey Supreme Court imposed a three-month reciprocal suspension rather than a one-month suspension and probation imposed in California.

The DRB described the fee petition filed by the attorney in a class action suit

In respect of respondent’s attorney fees, she first produced a hard copy of her time records, reflecting that, for a twenty-two month period, she had worked nearly all day (up to 16.75 hours), seven days a week, including holidays. Ibid. Consequently, in October 2006 and January 2007, Toshiba subpoenaed computer data and files related to respondent’s time records. Ibid. At the time, respondent’s time records were contained in Word files, which she then converted to PDF format, redacted those portions that she claimed were protected from disclosure by the attorney-client and work product privileges, and produced the PDF to Toshiba’s counsel. Id. 562-64.

When respondent converted the Word files to PDF format, she deleted the original Word files, including metadata, with the "Wipe and Delete" program. Id. at 564.3 Toshiba persisted in its request that she produce a "searchable electronic copy" of her time records. Id. at 563.

On January 26, 2007, the Los Angeles Superior Court held a hearing on respondent’s objections to Toshiba’s discovery requests. Ibid. The judge asked respondent and her counsel whether they "really" believed that he would award her $24 million in attorney fees without her being deposed and producing any documents. Ibid. The judge described the amount of fees  requested as "staggering" and ordered respondent to appear for deposition and to produce electronic time records in "native  format . . . or at least something . . . searchable." Ibid.

From there followed civil sanctions and bar discipline.

Bloomberg BNA reported on the California action

The California Supreme Court suspended a lawyer who balked at producing her computer for a court-ordered inspection of her electronic time records supporting a multimillion-dollar fee request in a class action.

Lori J. Sklar received a one-year stayed suspension with two years of probation, beginning with a 30-day period of suspension ( In re Sklar , 2017 BL 95065, Cal., No. S238847, 3/22/17 ).

Sklar filed a petition for certiorari with the U.S. Supreme Court on June 20.

The disciplinary order is the latest chapter in a long-running fight over sanctions for Sklar’s conduct in seeking fees as plaintiffs’ counsel in a class action suit involving defective Toshiba laptop covers.

During litigation over her fee request, Sklar said she couldn’t produce her time records in “native form” with associated metadata because she scrubbed her computer daily to eliminate metadata.

Sanction Order, Then Disciplinary Case

The California Court of Appeal upheld an order sanctioning Sklar and sent a copy of its opinion to the California state bar.

After a four-day trial in Sklar’s disciplinary case, a hearing judge found that she misled the court in the class action about the amount of her fee request and disobeyed orders to produce her computer so an expert could examine backup files.

The California State Bar Court, Review Department, rejected Sklar’s challenges to the hearing judge’s findings. She violated California Business & Professions Code §6068(d) (misleading a judge) and §6103(disobeying court orders), the court said in an unpublished opinion.

The California Supreme Court denied review and imposed the discipline recommended by the state bar court.

‘Wipe and Delete’

The state bar court said that when Sklar initially made a $24 million fee request in the class action, the judge allowed discovery about the amount of time she actually worked on the case, and ordered her to produce electronic time records in “native format.”

Sklar turned over hard copies of her time records and Microsoft Word files of the records, but not electronic, searchable copies in their “native form” with associated metadata. Sklar claimed those records no longer existed because she used a program called “Wipe and Delete” to scrub her computer daily and eliminate metadata.

Toshiba moved for sanctions, claiming Sklar had deleted or destroyed responsive records. The judge ordered the parties to select a neutral expert to search Sklar’s computer backup files and produce anything that wasn’t privileged.

Sklar fought the order and nearly a year later, the inspection still hadn’t occurred. The judge then ordered the inspection to take place on a particular date. Sklar challenged that order too, and the inspection never took place.

The judge ultimately imposed $165,000 in sanctions against Sklar for misuse of the discovery process. The court of appeal upheld the sanction, saying she had unquestionably flouted the court-ordered inspections.

Sklar, of Minneapolis, represented herself. She’s still authorized to practice law in Minnesota, according to her official listing there.

To contact the reporter on this story: Joan C. Rogers in Washington atjrogers@bna.com

To contact the editor responsible for this story: S. Ethan Bowers atsbowers@bna.com

For More Information

Full text of California Supreme Court opinion is athttp://src.bna.com/qDO.California state bar court's opinion can be viewed athttp://www.statebarcourt.ca.gov/Portals/2/documents/opinions/Sklar.pdf.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2019/02/on-the-recommendation-of-its-disciplinary-review-board-the-new-jersey-supreme-court-imposed-a-three-month-reciprocal-suspens.html

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