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Discovery
Unauthorized ‘rummaging’ through opponent’s Dropbox leads to sanction against this law firm
Justice Joel M. Cohen of New York has ordered Robins Kaplan and its client to pay nearly $156,000 for “surreptitiously and repeatedly” accessing the files of their litigation opponent. Image from Shutterstock.
A trial-level judge in New York has sanctioned Robins Kaplan for “rummaging” through the Dropbox of its litigation opponent after a third-party vendor accidentally revealed the link in discovery.
Justice Joel M. Cohen ordered Robins Kaplan and its client to pay nearly $156,000 for “surreptitiously and repeatedly” accessing the files of their litigation opponent, the Pursuit Special Credit Opportunity Fund. The sanction covers the Pursuit Special Credit Opportunity Fund’s cost in bringing the sanction motion.
Reuters and Law360 have coverage of Cohen’s Oct. 4 decision.
Cohen also ordered the return of documents that were not subsequently produced by the Pursuit Special Credit Opportunity Fund in discovery. And he warned that he could restrict future discovery requests by Robins Kaplan if they are based on the improper review of the Dropbox files.
The Pursuit Special Credit Opportunity Fund is suing Robins Kaplan’s client, litigation funder KrunchCash, for allegedly squandering $10 million of it money, according to Law360.
The Dropbox link provided live access to Pursuit’s cloud-based corporate file directory. Robins Kaplan said it didn’t review a directory called “Legal,” but Cohen said the law firm shouldn’t have reviewed anything.
The situation “should have raised professional alarm bells—loud ones,” Cohen said.
Cohen called the review of Pursuit’s documents “something more akin to corporate espionage.” Instead of stopping the review and making sure that its client did the same, Robins Kaplan “went on the offensive and threatened to use the information gleaned during its clandestine review for litigation advantage,” Cohen said.
Cohen cited a “blunt letter” that a Robins Kaplan lawyer sent to Pursuit in November 2022 after reviewing the Dropbox files for about a week. The letter said the firm had downloaded the Dropbox contents, and it was entitled to use every document in the litigation.
According to the letter, the documents revealed purportedly improper conduct by Pursuit that supposedly gutted its case. As a result, the letter said, Pursuit should dismiss the lawsuit.
Pursuit was not aware of the defendants’ Dropbox access before it received the letter.
The lawyer who wrote the letter was Robins Kaplan partner Gabriel Berg. He told Law360 and Reuters in an email statement that all the documents referenced in the letter were later produced in discovery. He also said he did not review anything protected by attorney-client privilege.
“In 25 years of practice, I have never been sanctioned or had a grievance filed against me,” Berg told Law360. “I look forward to appealing this decision.”
Pursuit counsel Renee Bea of Slarskey told Reuters in an email that her firm was advocating for its client “and the profession at large” in the sanction request.
“The ethical rules clearly spell out what an attorney should do when they receive information that was not intended for them. That did not happen here, and opposing counsel did not take the many opportunities that were offered to correct course,” Bea said.
The case is Pursuit Special Credit Opportunity Fund v. KrunchCash.
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