Metadata, Falsified Discovery Requests Lead to 6 Month Suspension
It is stupid to falsify legal documents instead of admitting your mistake and requesting accommodations from opposing counsel.
It's even more stupid to get caught due to electronic service of documents with metadata indicating the true date that the document was created. And it's downright idiotic to copy previous certificates of service from the same case and try to pass them off as authentic.
Jeffrey McGinness, a former NCAA national champion in wresting and Iowa attorney, probably knows how stupid his conduct was, and if he doesn't, he'll have six months to figure it out. He was suspended by the Iowa Supreme Court after lying about discovery requests, first to opposing counsel, then to the trial court, before finally accepting responsibility after the parties uncovered his ruse. (H/T to the Legal Profession Blog.)
After discovering, a few days before his client was set to be deposed, that he forgot to send out discovery requests, McGinness emailed opposing counsel and demanded responses. When he received a confused response, he attached copies of the discovery requests, along with certificates of service signed by his assistant. Opposing counsel checked the metadata, which indicated that the documents had been created months after they were supposedly served.
What is metadata? For PCs, right click on a document on your computer, then hit properties. See the dates for "Created," "Modified," and "Accessed?" That's almost certainly how he got caught.
Now, as a little experiment, I changed the date on my computer to March 5, 2014 (three weeks ago), then created and saved a new document, then fixed the date on my computer. Voila! Falsified metadata. Metadata is easily manipulated and far from foolproof.
That's why, had he merely had bad metadata, he may have been able to pass off the lie with an excuse like, "Your honor, I scanned in the signed copies when the dispute arose," or "I sent PDFs of the documents instead of the original Word files." Both would have created new documents with new metadata.
Copied Certificates of Service
This is where he really got himself into trouble. He photocopied old certificates of service from the same case, and tried to pass them off as legitimate. Opposing counsel compared the certificates to ones he already had on file, and shocker: the signatures were absolutely identical. A handwriting expert verified the allegations, and the judge who ordered sanctions and referred the case to the disciplinary commission stated that she didn't even need an expert to tell that they were the exact same document.
Next Time, Ask for an Extension
We're all human, and we all do stupid things. McGinness screwed up, first by forgetting to send discovery, then by lying about it. The sad thing is, unless opposing counsel was an absolute jerk, he probably would've granted an extension as a matter of professional courtesy; most lawyers do so routinely because we all make mistakes, or have life events that get in the way.
Even had opposing counsel rejected an extension, what's worse: committing an ethics violation, and risking your career (he's no longer with his former firm), or having a slightly more challenging deposition?
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- Iowa Supreme Court Attorney Disciplinary Board v. Jeffrey K. McGinness (Iowa Supreme Court)
- Five Ways to Irritate Opposing Counsel (FindLaw's Strategist Blog)
- Client Loses Settlement After Facebook Post -- 3 Lessons for Lawyers (FindLaw's Strategist Blog)
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