Access to Evidence

Access to Evidence

Rule 3.4(a) bars a lawyer from three acts: unlawfully obstructing another party’s access to evidence; unlawfully altering, destroying, or concealing a document or other material having potential evidentiary value; and counseling or assisting another person to do any such act.¹ The rule protects the channels through which an opponent reaches proof that someone else holds. Discovery, the pretrial process in which each side demands documents and information from the other, is one such channel. The subpoena, a court-backed order directing a person, including a nonparty, to produce material or give testimony, is another. Because the adversary system leaves each side to gather its own proof, a party relies on these channels to see what lies in the other side’s files or in a third person’s hands. Interference at the source leaves that party no practical way to learn what was lost.

The word “unlawfully” ties the rule to law found elsewhere. It appears before both the obstruction clause and the alteration clause, so the question in each case is whether the lawyer’s conduct violates some other law, such as a discovery rule or a criminal statute, and the disciplinary rule does not draw that line for itself. An unqualified ban would sweep in ordinary advocacy, since a proper privilege claim or a well-founded objection also keeps material from an opponent. Borrowing the standard from other law lets the rule separate lawful refusal from concealment. The rule is applied here in two settings: ordinary litigation, where the other law is chiefly the discovery rules, and crime, where physical evidence raises a harder problem because the controlling law lies outside the Model Rules.

Concealing and Destroying Evidence

Rule 3.4(a) reaches further than its three prohibitions first suggest. The first, against obstructing access, is the broadest, because it looks to the opponent’s path to the evidence and not to the condition of the evidence itself. Discovery shows the point. A lawyer who resists a request with no plausible basis blocks access without touching a document, and that obstructionist resistance violates ethical expectations because a frivolous objection cannot qualify as a “reasonably diligent effort” to comply.²

The second prohibition names three ways of defeating access. Alteration changes what an item says, destruction removes it, and concealment leaves it intact but beyond the opponent’s reach, so a lawyer who avoids the first two can still violate the third.³ The phrase “potential evidentiary value” sets the threshold low. The material need not be proved relevant, admissible, or damaging; it need only be the kind of thing that could bear on a claim or defense, which keeps the holder from deciding alone that an item does not matter.

The third prohibition closes the route through other people. Lawyers seldom handle evidence themselves, so the rule also reaches advice and help given to a client, an employee, or anyone else who does.⁴ Delegation does not escape it. Responsibility for preserving potentially relevant evidence, including electronic evidence, stays with the lawyer, who may not hand the client, in wholesale fashion, the work of identifying, gathering, reviewing, and disclosing documents.⁵ Nor may the lawyer send electronic discovery to a vendor without direct supervision. The lawyer must monitor the process and make sure that relevant, non-privileged information is identified, preserved, reviewed, and produced.⁶

None of this makes resistance to discovery suspect. Plausible and legitimate objections are part of the adversarial process and reflect zealous advocacy, so a genuine privilege objection, stated openly in the response, is lawful.⁷ The line falls between resistance through the channels the rules provide and resistance that has no plausible basis or that makes evidence unavailable by some other route. The lawyer may also counsel the client on all of this, because ensuring that discovery procedures are followed includes advising and instructing clients about their discovery obligations.⁸

A manufacturer shows where the line falls. Suppose a company sued over a defect holds an internal study concluding that paying accident damages costs less than fixing the problem. Three plans for keeping the study from the opposing party come to mind, and none works.⁹ Handing the study to the company’s lawyer protects nothing. A request for production reaches documents “in the responding party’s possession, custody, or control,” and a document the lawyer holds for the client stays within the client’s control. Signing the response also certifies that the party made a “reasonable inquiry” under Rule 26(g)(1), a search that must extend to the party’s employees and agents, lawyers included. Merely handing off a discoverable document to a lawyer does not shield it from discovery.¹⁰

The other two plans collide with Rule 3.4(a) itself. Destroying the study is destruction of material with potential evidentiary value, and burying it among unrelated files offered for inspection is concealment even though nothing is destroyed.¹¹ Concealment is measured by its effect on the opponent’s ability to find the item, so a production arranged to hide a document defeats access as surely as deleting it. Silent withholding fails too. The lawful route is to state the objection openly and let the opponent and the court test it.¹²

A lawyer who crosses the line faces several consequences at once. Courts sanction lawyers as well as parties for discovery failures. In Branhaven, LLC v. BeefTek, Inc., the court held that plaintiff’s counsel’s failure to identify and produce the client’s email in a timely fashion and in an acceptable form and manner, while suggesting—if not misleading defendants—that it had identified responsive documents, was sanctionable.¹³ Discipline under Rule 3.4(a) is a further exposure,¹⁴ and the physical-evidence cases below show that destroying evidence at a client’s request can end in a felony conviction.

Electronic evidence presents the same problem in a form that is easy to overlook. Metadata, the information embedded in an electronic file that records its history, such as who created it and when it changed, can be stripped, and stripping it alters the file as evidence. Some bar ethics opinions therefore conclude that removing metadata may be prohibited in at least some instances, particularly when a discovery response or subpoena calls for the file and no one has objected to producing metadata.¹⁵ The identical act can be proper elsewhere. A transactional lawyer with no dispute in view may scrub metadata from a contract draft before sending it, because the duty to protect client confidences calls for it and no evidence is being kept from anyone. Once litigation is reasonably anticipated, the duty of fairness to the opposing party may require the lawyer to preserve the same metadata, so the hinge is whether litigation was reasonably anticipated.¹⁶ Even then the duty is limited by relevance and privilege, and courts have not settled on one default: Williams v. Sprint/United Management Co. required production with metadata intact unless the producing party timely objected, while Wyeth v. Impax Laboratories, Inc. presumed against production unless the metadata is relevant, non-privileged, and reasonably accessible.¹⁷ A lawyer should therefore review metadata before deciding whether to preserve, produce, withhold, or dispose of it.

The deciding fact in each scene is what the lawyer directed once the dispute was foreseeable. Letting a routine purge continue is the assistance the third prohibition reaches, although the lawyer deletes nothing. Preservation combined with an openly stated privilege claim stays within lawful channels.

Rule 3.4(a) must also be kept apart from the rules that govern how a lawyer obtains evidence for a client. Rule 3.4(a) governs what a lawyer does to evidence another party is entitled to reach. Rule 3.4(c), which requires a lawyer to obey court rules, governs the lawyer’s own pursuit of evidence: limits that the procedural rules place on discovery may not be circumvented. As Professors Hazard and Hodes and attorney Peter Jarvis suggest, where the Federal Rules of Civil Procedure prescribe detailed protocols for discovering an opposing party’s expert witnesses and bar discovery of non-testifying experts except in exceptional circumstances, informal ex parte “debriefing” of an opposing party’s expert must be considered prohibited, at least by clear implication.¹⁹ A separate rule, Rule 4.2, closes a related informal route: it prohibits a lawyer from communicating about the subject matter of the representation with anyone the lawyer knows to be represented by counsel in the matter, without the other lawyer’s consent.²⁰ Rule 3.4(a) protects the opponent’s access to what the lawyer’s side holds; Rule 3.4(c) limits how the lawyer’s side goes after what the opponent holds. A lawyer can break either one without breaking the other.

Physical Evidence of Crime

The adverb “unlawfully” does most of the work when a lawyer meets physical evidence of a crime.²² Three kinds of items recur: fruits of a crime, such as a bag of bank-robbery money; instrumentalities, such as a murder weapon; and contraband, items unlawful to possess, such as drugs or child pornography. In these cases the answer cannot be read off the concealment and destruction rules of the previous subsection, because the Model Rules do not draw the line themselves.

They refer the lawyer to the substantive law of the applicable sovereign, federal or state, so conduct is consistent with Rule 3.4(a) when that law permits it and violates the rule when that law forbids it.²³ That law is opaque, particularly in federal criminal practice. Congress has responded to corporate scandals by imposing stricter duties to preserve potential evidence, but the case law does not address every situation, and a lawyer who must decide what to do with real evidence under exigent circumstances cannot readily find the answer.²⁴

The deference leaves a criminal defense lawyer real room to act. The lawyer must be a diligent and zealous advocate and has forward duties to shield the client’s affairs from prying eyes. When law enforcement or prosecutors present a lawful claim of access, the lawyer must respond properly and may not obstruct, alter, destroy, or conceal the evidence, but the lawyer may and should assert non-frivolous grounds for quashing a subpoena.²⁵ Short of such a claim, the lawyer’s duty to shield the client’s affairs ordinarily lets the lawyer decline to say where the client’s papers or objects are, and the lawyer may counsel the client to dispossess herself of documents, objects, or materials associated with wrongful behavior or wrongfully possessed in the first place.²⁶ Both permissions end where the conduct would be unlawful, and the cases arise at that boundary.²⁷

Two decisions show lawyers who crossed it. In In re Ryder, a lawyer took stolen money and a sawed-off shotgun used in an armed robbery, knew what they were, kept them in his own safe deposit box, and was suspended from practice for eighteen months.²⁸ He had stopped shielding his client’s secret. He had taken the evidence into his own custody and placed it where the authorities could not reach it. In United States v. Kellington, a lawyer burned an envelope at the request of a client facing an extradition hearing, and the court affirmed his felony conviction.²⁹ The court’s point was that an “honest and unwitting” lawyer would want to know what he was causing to be destroyed for his fugitive client before putting the torch to it, and it added that burning envelopes of unknown contents is not taught in American law schools.³⁰ The cases differ in form, since one lawyer hid evidence and the other destroyed it. In both, the lawyer’s own hands made material unavailable to the authorities, and a lawyer who becomes the instrument of that result has stopped advocating.

Between shielding and hiding lies a middle ground that the doctrine protects. A lawyer who is unsure what the unsettled law requires, and who only advises the client about the legal consequences of handling an item, has acted properly, because explaining the law is not itself an unlawful act.³¹

The lawful advice in the first scene depends on counsel’s staying out of the item’s handling and on the absence of a lawful claim of access. Once a subpoena or other lawful demand reaches the item, advice to dispose of it could become counseling an unlawful act, because the duty to respond properly has attached.³² The second scene is protected for a related reason: counsel withholds information about the client’s affairs and does not move or alter the papers.

The doctrine grows less comfortable when a client discloses where an item is and the lawyer then retrieves it. In a problem that casebooks use, a client named Scott told his lawyer, Schenk, about a wallet. Schenk retrieved it from Scott’s yard and delivered it to the police, and the prosecutor could tell the jury that it came from Scott’s yard.³³ The editors ask whether that is fair to Scott, who revealed the information, they suggest, only because he reasonably thought it was within the privilege. Because the Model Rules defer to other law, the answer lies in the substantive law of the particular jurisdiction.³⁴

The third step does the real work. Students often treat the lawyer’s possession of an item, or the client’s wish to dispose of it, as itself the violation, but the professional-responsibility answer follows the criminal-law answer. The outcomes in Ryder and Kellington turned on the lawyer’s own acts of hiding or burning the material.