Fairness in the Adversary Process (Part One): Lawyers and the Discovery of the Truth

Our adversarial legal system contemplates that each party will have the opportunity to fully investigate the facts of a dispute and bring to the attention of the trier of fact those facts most favorable to its position. This process presumes that, in this manner, the court will be amply informed of the circumstances underlying the dispute.  And this is notwithstanding the fact that a party has no affirmative obligation to volunteer information to the opposing party in civil matters (understanding that discovery rules may mandate certain disclosures).

Still, the self-interested motivation to put forward one’s best case is not without checks.  You cannot destroy evidence.  You cannot avoid reasonable discovery or investigatory requests for information.  Indeed, the duty to disclose adverse evidence arises in the context of discovery and when the court may be misled by misrepresentations or, in some cases, omissions by a party or counsel.  Specifically, Rule 3.3(a)(1) of the Virginia Rules of Professional Conduct, mandates that a “lawyer shall not knowingly . . . make a false statement of fact or law to a tribunal.”

In addition, Rule 3.4 governs fairness to the opposing party and counsel and requires that a “lawyer shall not:”

(a) Obstruct another party’s access to evidence or alter, destroy or conceal a document or other material having potential evidentiary value for the purpose of obstructing a party’s access to evidence. A lawyer shall not counsel or assist another person to do any such act

(c)        Falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law. . . .

(e)        Make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party.

The ethics rules, coupled with the discovery rules, seek to ensure that litigation is conducted fairly.  In so doing, Comment 1 to Rule 3.4 explains that: “The procedure of the adversary system contemplates that the evidence in a case is to be marshaled competitively by the contending parties. Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like.”

Of course, viewed through the prism of “winners” and “losers,” it may make little sense to require the offering up of adverse evidence.  Concern over a lessened focus on uncovering the truth led a former federal court judge to note:

We proclaim to each other and to the world that the clash of adversaries is a powerful means for hammering out the truth. Sometimes, less guardedly, we say it is “best calculated to getting out all the facts . . . .”  That the adversary technique is useful within limits none will doubt. That it is “best” we should all doubt if we were able to be objective about the question. Despite our untested statements of self-congratulation, we know that others searching after facts-in history, geography, medicine, whatever-do not emulate our adversary system. We know that most countries of the world seek justice by different routes. What is much more to the point, we know that many of the rules and devices of adversary litigation as we conduct it are not geared for, but are often aptly suited to defeat, the development of the truth.

We are unlikely ever to know how effectively the adversary technique would work toward truth if that were the objective of the contestants. Employed by interested parties, the process often achieves truth only as a convenience, a byproduct, or an accidental approximation. The business of the advocate, simply stated, is to win if possible without violating the law. (The phrase “if possible” is meant to modify what precedes it, but the danger of slippage is well known.) His is not the search for truth as such. To put that thought more exactly, the truth and victory are mutually incompatible for some considerable percentage of the attorneys trying cases at any given time.

Marvin E. Frankel, “The Search for the Truth: An Umpireal View,” 123 U. Pa. L. Rev. 1031-1036-37 (1975)

Notwithstanding the handwringing over “winning” and the pursuit of the truth, our adversarial system of justice bestows broadly on the opposing party the ability to investigate and discover evidence that would otherwise go undisclosed but for the rules governing the litigation process.  And professionalism and ethics require it.

A cautionary tale involved a matter in which a lawyer advised his client to “clean up” his social media account.  Allied Concrete Co. v. Lester, 736 S.E.2d 699 (Va. 2013).  The attorney represented his client in connection with a wrongful death action brought in connection with the death of his wife, who was killed in a motor vehicle accident.  By way of a “spoiler alert,” the jury awarded over $10,000,000; yet, the plaintiff sought to avoid a fair contest and attempted at the direction of his attorney to destroy and hide evidence (which ultimately was produced and, apparently, had little effect on the outcome).

On appeal, the Supreme Court of Virginia detailed the discovery misconduct as follows:

On March 25, 2009, Allied Concrete issued a discovery request to [the attorney], seeking production of “screen print copies on the day this request is signed of all pages from [the plaintiff] Isaiah Lester’s Facebook page including, but not limited to, all pictures, his profile, his message board, status updates, and all messages sent or received.” Attached to the discovery request was a copy of a photograph Tafuri downloaded off of Lester’s Facebook account. The photo depicts Lester accompanied by other individuals, holding a beer can while wearing a T-shirt emblazoned with “I ♥ hotmoms.” That evening, [the attorney] notified Lester via email about the receipt of the discovery request and the related photo.

The next morning, on March 26, 2009, [the attorney] instructed Marlina Smith (“Smith”), a paralegal, to tell Lester to “clean up” his Facebook page because “[w]e don’t want any blow-ups of this stuff at trial.” Smith emailed Lester requesting information about the photo. Smith also told Lester that there are “some other pics that should be deleted” from his Facebook page. In a follow-up email, Smith reiterated Murray’s instructions to her, telling Lester to “clean up” his Facebook page because “[w]e do NOT want blow ups of other pics at trial so please, please clean up your facebook and myspace!”

On April 14, 2009, Lester contacted Smith and informed her that he had deleted his Facebook page. The next day, [the attorney] signed and served an answer to the discovery request, which stated “I do not have a Facebook page on the date this is signed, April 15, 2009.” Allied Concrete subsequently filed a Motion to Compel Discovery. On May 11, 2009, [the attorney] told Smith to obtain the information requested in the March 25, 2009 discovery request. Smith contacted Lester, who eventually reactivated his Facebook page. Smith was then able to access and print copies of Lester’s Facebook page.  After Smith printed the Facebook page, consistent with the previous directive to “clean up” his Facebook account, Lester deleted 16 photos from his Facebook page. On May 14, 2009, [the attorney] sent the copies of Lester’s Facebook page to Allied Concrete. On October 12, 2009, [the attorney] provided additional, updated copies of Lester’s Facebook page to Allied Concrete.

In the end, defense counsel obtained the social media information it arguably sought even as it lost at trial with a jury award in excess of $10,000,000.  However, the trial court awarded sanctions in favor of the defendant, including a monetary award of $542,000 against the plaintiff’s attorney and an additional $180,000 against the plaintiff to cover the defendant’s attorney’s fees and costs in addressing and defending against the misconduct.  Further, disciplinary proceedings were initiated against the attorney for violation of ethical rules governing candor toward the tribunal, fairness to opposing party and counsel, and misconduct.  The resulting investigation concluded with an agreed disposition providing for the attorney’s suspension from the practice of law for five years.  In the Matter of Matthew B. Murray, Discipl. Bd. Va. State Bar, Virginia State Bar Docket Nos. 11-070-088405, 11-070-088422 (July 17, 2013).

I could suggest that the jury’s award notwithstanding the presentation of the “destroyed” evidence demonstrates that the plaintiff’s advocate did not need to engage in unfair conduct to achieve a just result for his client.  But that misses the point, doesn’t it?  For if we lose faith in the credibility of the adversary process, the outcome may be immaterial.

Jeff Geiger assists attorneys and law firms with ethics and professional responsibility matters.  If you have any questions about this post or other issues, please contact Jeff at (804) 783-7248 or jgeiger@sandsanderson.com.

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