Thursday, May 10, 2007

To Err is Human, but to Shift Blame is Less Than Divine

In the early morning hours that are reserved for researching and writing the posts for this blog, I often wonder if these posts are for naught. My frustration runneth over in vacillating between the fear that ESI in bankruptcy will remain a non-issue by the machinations of a vast anti-technology conspiracy and the sullen, sulking admission that the majority of our bar is as equally stunted in its technical competence as it is brilliant in all other areas of our practice.

A brewing controversy in the the Chapter 11 proceedings for the Catholic Diocese of Spokane, Case No. 04-08822-PCW-11 in the Eastern District of Washington, may ultimately prove me right on both counts. Amidst a bitter dispute between lawyers for the debtor, and a local newspaper (and its web counter part) The Spokesman Review about access to certain information regarding related to the sexual abuse crisis within the Church, it appears that Debtor's counsel may have inadvertently filed documents on the Court's PACER system allowing users to discover the names of some of the victims.

On the petition date, debtor's counsel wisely filed an ex parte motion (Docket No 12) authorizing portions of Schedule F, the Master mailing list and other documents related to the abuse victim's claims to be filed under seal. The court entered an order authorizing the sealed filings on the same day. Two days later, the debtor filed an amended Schedule F and a notice pleading of same (Docket Nos. 42 and 41, respectively).

For reasons that will become clear later, it is interesting to note that the Unofficial Committee of Clergy Sex Abuse Survivors filed an objection to the employment of debtor's counsel for a number of reasons, including the allegation that proposed counsel's firm had pre-petition claims against the Diocese (Docket No. 67). Attached to the objection were excerpts of discovery responses, which, on their face at least, identify one of the plaintiffs without clarifying whether or not the person identified is a victim of abuse.

On November 30, 2005, the Court entered an extensive, mostly well-prepared order and protocol for handling the abuse claims while also maintaining victim confidentiality (Docket No. 883). Under the Court's order, non-abuse claim forms are scanned as .pdf's and uploaded to via ECF. Abuse claims are not scanned, rather a "dummy" .pdf form is created reflecting the claim amount only. When the ECF system generates a claim number, the number is written on the original hard copy form and retained by Debtor's counsel. Under the information sharing protocol (Exhibit G to the order), Debtors counsel is authorized to provide true and complete copies as well as redacted copies of each abuse claim. Distribution is limited to the usual list of suspects, and only after a "Compliance Declaration" is executed by the recipient.

Fast forward now to April 16, 2007, when Tracy LeRoy, an attorney with Witherspoon, Kelley, Davenport and Toole filed a motion on behalf of Cowles Publishing Company, the publisher of the Spokesman-Review seeking an order requiring the Debtor to "publicly file copies of the Court records, claims, and decisions regarding payment thereof, regarding which the Debtor will pay the claim, with the names and identifying information of the victims redacted." (Docket No. 1868). The supporting memo is docket no. 1870.

It seems that one of the complaints lodged by the Spokesman-Review was that the claims procedure only identified 8 of the priests alleged to have committed acts of sexual abuse, although the notice documents indicate that more priests than that have been accused of such acts.

So far so good.

On May 9, 2007, the Debtor filed its objection to the paper's motion. Pointing out that the paper had the opportunity to object, and did object to the claims protocol, the debtor also pointed to the Judge's instructions regarding the media's right to access certain information.

Four days prior to the objection, John Stucke, a staff writer for the paper, revealed that he had been able to access confidential information from documents that had apparently been filed online by the Debtor. Stucke, to his credit, revealed no victims' information, but also discovered that at least 38 priests were subject to allegations of abuse. Stucke indicated that his method of obtaining the information was simple, but he did not share the methodology in the article.

Debtor's counsel, on the other hand, did. In footnote 3 of the Debtor's objection, debtor's counsel revealed that Stucke copied the "redacted" text from the .pdf files on the Court's docket, pasted the redacted text into Microsoft Word, and then "undid" the redaction. Debtor's counsel went on to characterize Stucke's actions as "hacking". At least twice in the body of the objection, Debtor's counsel also suggests that Stucke obtained his information through "presumably illicit means". The objection also complains that paper was not an "authorized Person" under the protocol, and had never signed a Compliance Declaration, so as to claim that the paper had unclean hands and should be denied all relief.

In yet another footnote, Debtor's counsel indicated that the redacted pleadings were rescanned on May 5, 2007.

In the future, the Debtor's objection may be reprinted in law school text books as one of the landmark self-destructive pleadings addressing of attorney liability in the electronic era. Conversely, Judge Williams may side with the debtor. If she does, the American bankruptcy bar will be set even farther behind the technological curve than we already are.

The protocol and the order initiating same seem to make it pretty clear that Debtor's counsel has the responsibility of taking all reasonable steps to protect the confidentiality of the abuse victims. If the order and the protocol do not make that abundantly clear, the ABA Model Rules sure as hell do. For more on this issue, see this recent article in this month's edition of the ABI's Commercial Fraud Task Force newsletter.

If the .pdf's were uploaded by the Debtor's counsel, and it isn't clear to me yet that is what occur ed, but if so, that "technical gaffe" is very likely a significant violation of the protocol by Debtor's counsel, independent of any actions of Stucke. Preventing the discovery of information in a manner such as this, is easily prevented with a minimum of technological competence. That counsel compounded this error by explaining in Footnote 3 how easy it was for Stucke to discover this information is tantamount to an admission of malpractice; counsel then poured salt in its own wounds by indicating in Footnote 5 that the remedy was simply corrected by having the forms rescanned.

I spent 13 hours yesterday working on a pro bono child abuse/custody case which has been feeding some dis-enchantment about the legal system's ability to protect victims of abuse. Shame on Debtor's counsel for, in a filed pleading no less, trying to shift the blame on the Spokane-Review. Rather than excoriate Stucke, you should be thanking him for saving you and your partners from potential claims by the victims. Imagine if someone with less restraint than Stucke had accessed the poorly protected information and caused some genuine harm to those folks.

1 comment:

Anonymous said...

Without expressing an opinion on the opinions in the post (particularly those regarding blame) - great article - very interesting stuff.