Don’t knowingly produce incorrect electronic devices for discovery! When opposing counsel requests production of your client’s cell phone from the relevant time period for inspection, it is your duty to provide accurate information regarding the whereabouts of the phone. If your client no longer has the phone, be upfront and do not oppose the discovery requests on the grounds that the scope is too broad. Just tell the court the truth! Additionally, making representations to the court that you mistakenly believed opposing counsel was requesting your client’s current cell phone damages your credibility.

In Moreno v. Ostly, the court considered allegations of sexual harassment, retaliation, and failure to pay back wages. The allegations were based on text messages, which the plaintiff received on her phone from the defendant, relating to both the sexual relationship and the subsequent termination of her employment after she ended their relationship.

Understandably, the defendant’s attorneys sought production of the plaintiff’s cell phone and computer from that time frame so that a forensic expert could examine the devices. When the discovery requests were received, plaintiff’s counsel requested that the scope of discovery be narrowed, and opposing counsel agreed to narrow the scope. After much back and forth with the court, the judge ordered the production of the relevant devices by September 11, 2009. Plaintiff’s counsel produced a cell phone and a laptop on September 4, 2009. Both devices were not the devices from the time frame, and in fact neither of the devices even existed at the time.

On October 20, 2009, defendant’s counsel filed a motion for terminating the case and for monetary sanctions resulting from “needless meet and confer sessions,” the fees from having a forensic expert examine and copy information from a nonrelevant phone, and from the costs of the attorneys preparing for the motion for sanctions and preparing a response brief.

At the motion hearing on November 11, 2009, plaintiff’s counsel apologized to the court and opposing counsel if they “believe[d] my actions resulted in a waste of time and resources.” He went on to testify that he thought he was being truthful because he told the court that he thought there were no relevant messages on plaintiff’s phone, but that he did not advise any of the relevant parties that the phone he was referring to was not the phone from the relevant time period. He further claimed that his failure to disclose was a result of a “competing set of duties.”

This “competing set of duties,” which both the trial court and Appellate Court found to be entirely disingenuous and not at all credible, was his duty of confidentiality to his client, and his duty of candor to the court.

After hearing from both sides, the trial court granted the motion for sanctions, and imposed a total of $13,500. The Appellate Court upheld the award of sanctions, stating that, “instead of doing what would have been reasonable and in good faith under the circumstances, counsel and his client first resisted any attempt to obtain the production of her cell phones…to make matters worse, they then engaged in the charade of producing her current phone and computer.”

It is unclear why plaintiff’s counsel tried to “hide the ball” from both the court and opposing counsel regarding his client’s cell phone, especially when the court was understanding regarding the upgrade of his client’s work computer, but plaintiff’s counsel’s mistake is a valuable lesson: If your client upgraded his or her electronic device, just tell the court!

Courtney O’Brien is a student at Seton Hall University School of Law, Class of 2013, where she serves as an Associate Editor of the Seton Hall Journal of Sports and Entertainment Law. Prior to law school, she was a 2010 magna cum laude graduate of Villanova University, where she majored in Political Science and minored in sociology. Presently, Courtney serves as the Seton Hall Legal Intern Chair in the Appellate Division of the Bergen County Prosecutor’s Office.