Estate administration falls under the purview of the civil courts. Consequently, the
Federal Rules of Civil Procedure apply to estate-related cases. Failure to follow those
rules, as evidenced by the cases examined below, can lead to big trouble in the form of
massive financial sanctions and disciplinary actions. Where disciplinary actions lurk,
malpractice cases are sure to follow.
Changes to the Federal Rules of Civil Procedure
A handful of changes were made to the Federal Rules of Civil Procedure with the same
overall principle in mind: electronically stored information is a category of evidence
equal to paper documents. Under Rule 34, it now has its own category in the rules of
discovery, fittingly called "Electronically Stored Information."
Rule changes cover such issues as mandatory pre-discovery discussions and disclosures,
accessibility, undue burdens and a safe harbor provision. The goal is consistency, clarity
and predictability in what was once a muddled area of discovery.
Qualcomm v. Broadcom
Qualcomm v. Broadcom is a patent infringement case that perfectly exemplifies the
serious consequences facing attorneys who don't take e-discovery seriously. When
producing documents for discovery, Qualcomm found 21 emails relevant to the subject
matter of the lawsuit. Not only did Qualcomm fail to produce these emails, they also
failed to continue searching. After all was said and done, around 46,000 relevant yet not
produced emails were located.
What role did the Qualcomm attorneys play? According to the court, they were seriously
remiss in overseeing the e-discovery process. Basically, they shouldn't have taken their
clients at their word that a thorough search had been performed. The attorneys for
Qualcomm were assessed more than $8.5 million and sanctions. And there was damage
to their reputation, too, with the court referring the attorneys to the state bar for an
investigation into possible ethics violations.
Columbia Pictures Industries Inc v. Bunnell
The Bunnell case really tested the boundaries of the still relatively new ESI rules.
Columbia Pictures, along with several other major motion picture companies, filed a
copyright infringement suit against TorrentSpy, a search engine that indexes materials
available through file sharing.
To protect the privacy of its users, TorrentSpy never logged their visitors' IP addresses.
That, says the court, had better start changing. The decision rocked the legal (and
business) community because this type of data is only temporarily stored in the Random
Accessory Memory (better known as RAM). This ruling has the potential to vastly
expand what is considered electronically stored information for purposes of discovery
and the Rules of the Civil Procedure.
What do these cases and rule changes mean for estate planning attorneys?
The two big cases outlined above may make it seem like the new ESI rules only affect
big-time corporations. Not true. Estate planning and estate administration attorneys must
concern themselves with this growing trend as well. The lesson to learn here is that courts
are starting to hold attorneys accountable for not following the Rules of Civil Procedure.
An unpaid creditor or an unhappy heir could sue an attorney or an estate administrator for
failing to follow the applicable rules. Keep in mind, estate planning and administration is
an emotionally charged area of the law. Grief, bitterness, jealousy, and greed combine to
make for aggressive plaintiffs. Creditors too are infamous for their relentlessness.
Another lesson to take from these cases is that courts aren't taking violations of the ESI-
related rules lightly. Attorneys practicing estate law need to learn and understand the rule
changes. Courts expect attorneys to play by the rules, and they'll hold you accountable
when you don't. Protecting your reputation – and your bank account – is well worth the
time it takes to dissect the rules and proceed with caution.
