A couple of articles written by blogger Laura J. Tyson at E-Lessons Learned caught my attention I as I’m preparing to present my brand new ethics course on Thursday, July 1st. More information about the course (Advanced Ethics: Complex Issues for Attorneys and Paralegals) is available at this link.
First, in Learn a Lesson from Smuckers: Preserve Those Blackberries’: “When the court orders your client to preserve data, don’t let employees wipe their BlackBerrys® before turning them in. A wiped BlackBerry® smartphone could translate into “bad faith” and might just induce a court to impose spoliation sanctions.” The cite for this case is Southeastern Mech. Servs. v. Brody, No. 8:08-CV-1151, 2009 U.S. Dist. LEXIS 85430 (M.D. Fla. Aug. 31, 2009).
Another is “The Dog Ate It,” “We Didn’t Know About That Shared Directory,” and More Great eDiscovery Excuses” at this link The lesson: If your client is under an agreement to produce specific custodians’ documents by a specific deadline, make sure you know all physical locations each custodian might save documents, INCLUDING a shared file directory on a server. The court will not be impressed by your attempts to use, in support of your motions, documents produced late; and the excuse that you were unaware of a shared directory of a named custodian is no excuse for filing to produce responsive documents found on that directory.” The cite: Wixon v Wyndham Resort Corp., 2009 U.S. Dist. LEXIS 86337 (N.D. Cal. Sept. 21, 2009.
There’s one more interesting article: Livescribe Smart Pen: That, Too, Is Discoverable in Litigation! at the Best Practices Construction Law blog, author Matt DeVries expressed caution “when recording any attorney-client conferences, as well as meetings with consultants and testifying experts.”
One thing is clear: eDiscovery is a broad and confusing area that paralegals are learning more about every day. The importance of looking for evidence on mobile devices is stressed, as is the importance of preserving those mobile devices when the evidence may be needed in litigation.
The ethics lesson here is to be very careful how you use these mobile devices…your iPhone, Blackberry…and even that Livescribe Smart Pen…because you could be creating secrets you would not want to be discovered. Think about restricting your use of these devices so that you preserve the confidences and secrets of your client…as well as your integrity.