Whether we like it or not, a reality of today’s world is that often important business is conducted by text messages. And so, when it is time to issue a litigation hold notice, you must include an instruction to preserve text messages as well as the devices from which they are sent/received (i.e., smartphones).  Your failure to do so can
Continue Reading Text Messages Must be Preserved

Approximately, one year ago, I authored a blog about emoticons finding their way into the courtroom as purported evidence of a crime or tort (Texter Beware: Emojis as Evidence).   Although emoticons began appearing in court in 2004, their presence has risen exponentially.  In fact, just last month, Eric Goldman of the Santa Clara Law School reported in the
Continue Reading Cases Involving Emoticons As Evidence Are On the Rise

This is the 4th and final blog in a multi-part blog discussing various critical requirements that can serve as the road map to allow a lawyer to fulfill his/her duty of technological competence. [Click here to read Part 1, here to read Part 2, and here to read Part 3].

You have assessed the discovery needs of your matter, implemented
Continue Reading A Lawyer’s Obligation to be Technologically Competent – Part 4

This is Part 3 in a multi-part blog discussing various critical requirements that can serve as the road map to allow a lawyer to fulfill his/her duty of technological competence. [Click here to read Part 1 and here to read Part 2]..

After you have assessed the discovery needs and issues in a given matter, and you have implemented appropriate
Continue Reading A Lawyer’s Obligation to be Technologically Competent – Part 3

This is Part 2 in a multi-part blog discussing various core requirements that can serve as the road map to allow a lawyer to fulfill his/her duty of technological competence. [Click here to read Part 1]

2.  Implement Appropriate Preservation Procedures

ESI spoliation remains a real issue that lawyers must confront.  The best way to prevent spoliation is to take
Continue Reading A Lawyer’s Obligation to be Technologically Competent – Part 2

The role of electronically stored information (“ESI”) and new technologies has grown tremendously in recent years.  This growth has a direct impact on discovery specifically, and the practice of law, generally.   And so, the new practical reality is that attorneys need to be technologically literate and competent.  This should come as no surprise to those who read my blog.  Earlier
Continue Reading A Lawyer’s Obligation to be Technologically Competent – Part I

Often viewed as a necessary evil, the Rule 26(f) conference can serve as an invaluable opportunity to meaningfully discuss discovery such that the process is streamlined and seeks to avoid unnecessary (and often costly) disputes.   Generally speaking, Rule 26(f), among other things, sets the deadline for the conference as soon as practicable and at least 21 days before the scheduling
Continue Reading The Rule 26 Conference: Necessary Evil or Critical for Streamlined and Efficient Discovery?

Imagine if the above emojis, casually fired off in a text message (or in an Instagram or Facebook post) to a friend or colleague, could be used against you as evidence of workplace harassment?

Or if another combination of cartoon-like representations of emotions could be used as proof of defamation?

Or if inclusion of a face emoji with its tongue
Continue Reading Texter Beware: Emojis As Evidence

What do applications like Snapchat, Telegram, Wickr, Cover Me, Speak On, and Whisper have in common? They are all self-destructing message (“SDM”) applications. What exactly does this mean, you ask? Self-destructing messaging applications transmit information with end-to-end encryption, and auto destruct after a set time period of time, or after receipt and access by the intended recipient.  Consider Snapchat, for
Continue Reading The Perks and Perils of Self-Destructing Messages

In past blogs, I have discussed the importance of issuing a litigation hold notice (“Hold”), as soon as a litigation is reasonably anticipated. I have also written about various best practices when drafting one’s Hold. [See Practical Tips For an Effective Litigation Hold Notice and Your Litigation Hold Must be Generally Broad And Specifically Tailored]. In an effort
Continue Reading Litigation Hold Notices Should Not Cloak the Recipient With Discretion Over What Documents to Preserve