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Family & Juvenile
Law Section “Top 10’s”
10 Technology Tidbits for Discovery
By:
Erin D. Gable, Esquire – Coordinator of Legal Resources,
Department of Family Administration
Alisa G. Cummins,
Esquire – Law Offices of Alisa Cummins, P.A.
- E-mail. E-mail
is the generally preferred method of communication today. It
is faster and less expensive than regular mail, and affords more
options for transmission than facsimile communication, including
the ability to send opposing counsel and/or clients documents they
may edit electronically, saving time and money. In navigating
this fast-paced world, be sure to confirm your client’s willingness
and/or preference to communicate by e-mail, and be certain to place
a confidential disclaimer at the bottom of all your e-mails, regardless
of the intended recipient.
- Discovery Right Under Your
Client’s Nose. The family computer may contain
a wealth of discoverable information. Be sure not to overlook
the value of e-mails or the history of Internet sites recently visited.
One can find out a lot about a person by the Internet sites that
they visit.
- Scanners. The
scanner is a lawyer’s new best friend! Attempt to scan in all
discovery, pleadings, correspondence and notes so that when you are
in trial, deposition, or lounging at home watching Monday Night Football,
you can have your entire file at your fingertips. Scanning
is also an excellent document management tool, especially if you
take advantage of the numbering systems in either Adobe Writer or
certain types of Bates-stamping software packages.
- Document Production. In
order to save time and money, produce discovery documents by scanning
and burning onto a CD-Rom. This will enable you to produce
discovery more efficiently, and will help to avoid the battles surrounding
inspection and reproduction.
- Backup. BACKUP,
BACKUP, BACKUP!
- Social Networking. Many
clients and opposing parties have MySpace, Tweeter and Facebook accounts. These
accounts are an excellent source of information, specifically including
photographs or memorialization – sometimes juicy – of
the account-holder’s activities. One tidbit is to create
your own account, which may allow you some limited information on
other accounts. For instance, Facebook displays all “friends” for
a particular member. You can obtain the list of friends and
perform criminal or Maryland Judiciary case searches.
- Texting or Sexting? Gone
are the days of simply chatting on the cell phone. Now days
people seldom “talk;” rather they “text message.” While
often uncooperative, many service carriers for your opposing parties’ cell
phones will produce text messages – or at least records of
numbers to whom and from whom texts were sent and received. Clients
should also be encouraged to photograph or otherwise memorialize “texts” from
opposing parties which are relevant to the proceedings and, at the
same time, be reminded of the consequences of “texting” or “sexting.”
- Video Clips on Phone. As
the speed of technology continues to increase so to the methods of
communications. The Internet is full of clips from videophones. Once
again, this source of potential information should not be overlooked. Another
tidbit is to request that the opposing counsel produce their phone
(unaltered) at a scheduled deposition.
- Don’t Get Lazy. Since
attorneys tend to use the same types of discovery repetitively, it
is easy to unintentionally fail to delete all the information of
the previous client. Further, if you are emailing the discovery
either to your current client or opposing counsel, a savvy attorney
can access information about the file by clicking “properties” under
file on the toolbar. It is best to create a “form” with
any client-specific information replaced by “asterisks” or
some other indication that information needs to be completed. Then
resave the file under a new name and double check that there is no
longer any information about the previous client in the document.
- Expert? We
are attorneys – not
computer specialists! While e-mails can often be authenticated
by laying a foundation as to e-mail addresses by which the parties
communicated in the past, some triers of fact have questioned the
validity of e-mails when they are introduced into evidence. One
suggestion is to secure the IP address of the computers sending and
receiving the e-mail(s) in question, whether by testimony or written
discovery responses. Then, when you attempt to introduce the
e-mail(s), you can match up the IP address to the computer(s) showing
that they originated on or were received by the computer(s) in question.
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