In a brief order, the Colorado Supreme Court fined and publicly censured attorney Randall Miller for failing to promptly disclose false evidence. During the underlying representation, the attorney’s client deleted emails that the client should have preserved. The client promptly restored those emails, but counsel improperly proffered evidence as if the deletion had never occurred.
This case originated when John Landers, the client, resigned from a pet food company and started a competing company. His former employer sued, alleging that Landers had taken company materials and used them to set up his new business. After resigning but before retaining counsel, Landers “attempted to manually purge” his email account. Landers then retained Miller, the office managing partner at a prominent local law firm, for representation.
On April 7, 2014, Landers informed Miller that he had deleted emails. However, contrary to the complaint against him, he asserted that he had not “taken anything” from his former employer. On April 9, Miller asked an associate to “confirm that [Landers didn’t] have any [company] information.” Unfortunately, due to a “miscommunication,” the associate instead advised Landers to delete the remaining company emails he had. Although the law firm quickly tried to rescind that instruction, it was too late. The associate prepared an affidavit for Landers that described the post-litigation deletion.
On April 10, Miller filed the Landers affidavit, omitting that Landers had possessed company information or deleted emails after the lawsuit commenced. Later that day, Miller tried to restore the emails and “likely” succeeded. Miller arranged for Landers’ electronic devices to be imaged and preserved.
On May 5, Miller disclosed to opposing counsel that Landers did possess some company information. He did not disclose the deletion and restoration of emails. Similarly, when Miller questioned Landers during a May 28 hearing, he failed to tell the court about the post-complaint deletions. In October, Miller’s interrogatory answer about email deletions again omitted the post-complaint deletion.
Finally, in November, when the parties were discussing spoliation, Miller advised opposing counsel about the email deletion and his firm’s role in it. Miller’s firm withdrew as Landers’ counsel and, after being sanctioned by the trial court, paid the agreed sanctions.
Under Colorado Rule of Professional Conduct 3.3(a)(3), “When a lawyer’s client has offered material evidence and the lawyer comes to know of its falsity, then the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.” The court agreed with the stipulation that Miller had violated this rule and “his duty of candor” to the court and to opposing counsel. It concluded that Miller was negligent in submitting an affidavit with false information and “reckless in failing to take remedial action to disclose the false statements.” The court noted that Miller’s 20 years of practice was an aggravating factor. However, it tempered its decision with mitigating factors. For instance, Miller had no disciplinary history, cooperated fully, had “good character and an excellent reputation,” and was “genuinely sorry.”
Under these circumstances, both the American Bar Association’s guidance and case law “support[ed] public censure rather than a suspension.” Therefore, the court assessed Miller $224 in costs and publicly censured him according to the terms of his agreed settlement. The court dismissed two other rule violations.
Takeaways for disclosing deleted data
When you or your client loses or destroys evidence — even if you can quickly restore it — advise the court and opposing counsel immediately. Here, the court expressed little concern about the initial poor advice to delete emails. Instead, it focused on the deceit that followed that apparent mistake.
Questions about recovering ESI for e-discovery?
We’re here to help you unlock e-discovery mastery. If you need a hand or have questions, please contact us.