Tuesday, March 1, 2011

"Screening is Alive and Well in the Second Circuit..."

Hat tip to Bill Frievogel, legal ethics maven, who writes that: "...screening is alive and well in the Second Circuit..." with the just issued decision in Arista Records LLC v. Lime Group LLC, 2011 U.S. Dist. LEXIS 17434 (S.D.N.Y. Feb. 22, 2011).

The organization in question, a 600-lawyer firm based in New York, used ethical screening software to secure and prevent access to electronic information repositories. It also distributed memoranda and took other steps to demonstrate compliance, including affidavits.

In this case, a lawyer who worked for the plaintiff's firm, later joined a firm which was subsequently engaged to represent a defendant. The lawyer in question was the "senior associate" on the case in his former life, and it was "undisputed" that he had access to confidential information in that role.

At the heart of the disqualification motion were assertions that the screen was insufficient. As part of its response, the firm took the interesting step of conducting a complete electronic audit of its document management system, in order to confirm that no sensitive information had been accessed by the screened lawyer.

Interestingly, the court agreed that there were weaknesses in the screening procedure such as policy creation and  notification delays, but ruled that there was no reason to believe that the screen was ineffective, that confidential information had been communicated and that there was no "real risk that the trail will be tainted."

In addition to the acceptance of screens, this case also highlights the extent to which firms moving for disqualification will assess and attack every element of a screening firm's response (including their affidavits).

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