Common law imposes a duty to preserve potentially-relevant information in anticipation of litigation
Most information is electronically-stored information (ESI)
Understanding ESI entails knowledge of information storage media, encodings and formats
There are many types of e-storage media of differing capacities, form factors and formats:a) analog (phonograph record) or digital (hard drive, thumb drive, optical media)b) mechanical (electromagnetic hard drive, tape, etc.) or solid-state (thumb drive, SIM card, etc.)
Computers don’t store “text,” “documents,” “pictures,” “sounds.” They only store bits (ones or zeroes)a) ASCII or Unicode for alphanumeric characters;b) JPG for photos, DOCX for Word files, MP3 for sound files, etc.
Digital information is encoded as numbers by applying various encoding schemes:
We express these numbers in a base or radix (base 2 binary, 10 decimal, 16 hexadecimal, 60 sexagesimal). E-mail messages encode attachments in base 64.
The bigger the base, the smaller the space required to notate and convey the information
Digitally encoded information is stored (written):a) physically as bytes (8-bit blocks) in sectors and partitionsb) logically as clusters, files, folders and volumes
Files use binary header signatures to identify file formats (type and structure) of data
Operating systems use file systems to group information as files and manage filenames and metadata
File systems employ filename extensions (e.g., .txt, .jpg, .exe) to flag formats
All ESI includes a component of metadata (data about data) even if no more than needed to locate it
A file’s metadata may be greater in volume or utility than the contents of the file it describes
File tables hold system metadata about the file (e.g., name, locations on disk, MAC dates): it’s CONTEXT
Files hold application metadata (e.g., EXIF geolocation data in photos, comments in docs): it’s CONTENT
File systems allocate clusters for file storage; deleting files releases cluster allocations for reuse
If unallocated clusters aren’t reused, deleted files may be recovered (“carved”) via computer forensics
Forensic (“bitstream”) imaging is a method to preserve both allocated and unallocated clusters
Because data are numbers, data can be digitally “fingerprinted” using one-way hash algorithms (MD5, SHA1)
Hashing facilitates identification, deduplication and de-NISTing of ESI in e-discovery
Tripartite relationships among an insurer, the insured, and defense counsel have been delineated extensively in both court decisions and advisory opinions. “Quadripartite” relationships, by contrast, are a fairly new development and remain comparatively unplumbed.
While the addition of a fourth party to the insurer/insured/defense counsel relationship is rare, it can occur. This raises the question: can defense counsel share confidential information with the fourth party?
The answer under advisory opinion no. 201802 is yes – if the client consents and if doing so is in client’s interest and does not jeopardize attorney/client or work product privilege.
Oregon has no opinion on quadripartite relationships.
In a recent post, eDiscovery expert Craig Ballmakes the case for routine preservation of data contained on mobile devices. I concur.
The tendency is to dismiss or ignore the degree to which we lean on our smartphones and tablets. We either assume the data is preserved elsewhere or we convince ourselves that mobile devices couldn’t possibly contain anything relevant or unique. Both beliefs are false. Craig’s post is a wakeup call for both law firms and their clients. Consider his key points:
Texting has overtaken email as a means of direct and candid communication. No competent business person would never send a letter or email without retaining a copy. The same standard should apply to text messages.
Mobile data is accessible and easy to backup using iTunes. (Yes, I know the interface deserves a Rotten Tomatoes score of 0%, but it does work.)
Preserving data does not mean it must be produced.
There is much more to this topic, and I encourage you to read the full post.
Do your clients or their agents use cloud storage for case-related documents? Do they transmit information using unsecured hyperlinks?
If the answer is yes, your client may have waived its claim of privilege to the stored information. This is the lesson learned in Harleysville, where a federal court in Virginia held that an insurance company waived the attorney-client privilege when the insurer’s investigator used an unsecured account to share claim-related information.
Key Facts in Harleysville
Insurer’s counsel knew or should have known that the information posted to the cloud account was publicly available because counsel had themselves used the unsecured hyperlink to access and download the claims file.
As a result, counsel “failed to take reasonable measures to ensure and maintain the document[s’] confidentiality, or to take prompt and reasonable steps to rectify the error.”
The court analogized the insurer’s actions to “leaving its claims file on a bench in the public square” and warned that if a company chooses to use a new technology, “it should be responsible for ensuring that its employees and agents understand how the technology works, and, more importantly, whether the technology allows unwanted access by others to its confidential information.”
Establish a secure system for confidential file sharing if one is not already in place. Address other issues uncovered during the security audit.
Create file sharing policies and procedures.
Train everyone now; conduct annual training sessions thereafter. Address protocols for uploading and downloading files. All law firm members – attorneys, staff, administration, bookkeeping – need to know the warning signs of receiving or forwarding content from unsecured hyperlinks.
Talk to clients about file storage and sharing practices. Do they use agents, like the investigator in Harleysville? If so, how do they exchange documents? Consider offering an on-site client training lunch to go over dos and don’ts.
Dealing with a pro se party raises a number of reasonable concerns:
The pro se could misconstrue what I say
The pro se may regard me as his or her lawyer
The pro se could sue me for legal malpractice
Communicate in Writing Whenever Possible
When you communicate verbally, a pro se can misremember your words, misconstrue your meaning, or even deny the discussion occurred.
When you communicate in writing your words are documented. It becomes impossible to “misremember” or deny what you said. Yes, written communication can still be misconstrued, but there is less likelihood of this happening.
Use a 3-Way Disclaimer
“I don’t represent you.”
“I can’t give you legal advice.”
“If you have questions, hire a lawyer.”
Every pro se communication should include this type of disclaimer. If the pro se party later argues you had a lawyer-client relationship or attempts to assert a legal malpractice claim on the grounds that you failed to protect her interests, you will be in a better position to defend yourself.
Be a Broken Record
The 3-way disclaimer must be used every time you communicate with a pro se. Does it become repetitive? Perhaps, but that doesn’t matter. Some pro se adversaries “get it” from the beginning; some “get it and forget it;” some never “get it.” This doesn’t mean the pro se is purposely trying to make your life more difficult. But it does underscore the value of redundancy.
Practice Tips Beyond Pro Se Communication
For more tips on how to work with pro se adversaries, peruse the following: