Preserving Mobile Data in Anticipation of Litigation

In a recent post, eDiscovery expert Craig Ball makes 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.

A Lesson for Lawyers

There is a takeaway for lawyers too. In Oregon, the “client file” includes text messages if they bear on the merits of a client’s position in the matter. This begs the question: are you preserving client texts? If not, look into Zipwhip, which I’ve discussed before. It has many advantages, not the least of which is the ability to save texts as PDFs to the client file.

All Rights Reserved 2017 Beverly Michaelis

Attorney-Client Privilege and Cloud Storage

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.”

Source: Don’t Let New Technology Cloud Your Legal JudgmentProskauer commercial litigation blog.

Lessons Learned

As Proskauer points out:

  • Attorneys and clients are responsible for their own technological choices as well as those of the client’s agents
  • Technological ignorance on the law firm’s part is no excuse

What You Should Do Now

  • Conduct a cyber security audit of your firm’s practices and systems.
  • 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.

All Rights Reserved 2017 Beverly Michaelis

 

 

Pro Se Adversaries – Tips for New Lawyers

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:

[All Rights Reserved 2015 Beverly Michaelis]

Common Malpractice Traps in a PI Practice

10-16-2013 12-37-48 PMPersonal injury generates the most frequent and costly legal malpractice claims in Oregon.

If you are a PI practitioner, watch out for these common traps:

Naming the Wrong Defendant
A thorough investigation of your client’s claim is essential.  Seek out corroborating documentation of the facts.  Take special care to properly identify parties – especially when using the
Business Registry to search for an assumed business name or corporate entity. (Many names are similar.) File your complaint well before the statute expires.  If you later discover that you misidentified the defendant, you should be able to file an amended complaint.

Omitting a Defendant
Even if you believe that you conducted a thorough pre-filing investigation of your client’s claim, it is still possible to miss a defendant.  Here is an example:  Your client is crossing the street and is struck by a car in the cross walk.  In working up your client’s claim, you instruct your investigator to interview the driver who is not represented.  Based on the statement taken by your investigator, the case appears straightforward:  pedestrian versus driver.  You file suit, naming the driver.  In the course of depositions, after the statute of limitations has run, you discover the driver was performing a work-related errand for her employer at the time of the collision.  You failed to name the employer as an additional defendant.  There are several lessons to learn from this scenario.  One of the most important is to file early!  If you learn of a second defendant before the statute runs, file an amended complaint.  Also take the time to review scenarios like this with your investigator and be sure he or she has adequate direction from you on how to conduct interviews.

Suing a Defendant who is Deceased
Failure to discover that the defendant passed away does not toll the statute of limitations.  Conduct a records search prior to filing.  Use resources like the
Oregon Judicial Information Network (OJIN) or Accurint to check court and public records.  If a probate estate has been established, name the estate as the defendant and serve the Personal Representative.

Not Knowing the Law
Claims involving minors often trip up practitioners.  Many believe that minority automatically tolls all statutes and tort claim filings until the minor reaches the age of 18.  This is not the case.  Do your research!  Use the
PLF’s Oregon Statutory Time Limitations handbook as a resource to verify the applicable deadline.  Every Oregon lawyer received a copy of this handbook in 2010.  A PDF of the book is available for download on the PLF Web site.

Missing the Statute of Limitations
The first defense in avoiding a blown statute is to know the law.  As suggested above, use the
PLF’s Oregon Statutory Time Limitations handbook as a resource.  Even if you think you know the statute of limitations, check again.  The second defense is to establish reliable calendaring and file tickling systems that remind you of upcoming deadlines and prompt you to move cases forward.  Consult the PLF’s docketing and calendaring practice aids available online or download and review our book, A Guide to Setting Up and Running Your Law Office, also available online.  Third, always file well in advance of the statute.  Am I beginning to sound like a broken record?  Filing early allows time to recover from the mistakes described above.

Failing to Timely Complete Service
Put the summons and complaint in the hands of your process server on the day you file your complaint or as soon thereafter as possible.  Create a reminder or task to follow-up with your process server 10 days later.  If the defendant is avoiding service or if your server is having difficulty locating the defendant, you need to know early on so you can pursue alternate service methods.  If the defendant is not personally served, be sure you comply with any additional steps that must be taken.  For example, if substituted or office service is obtained, follow-up service by first class mail is required.  Lastly, remember that ALL service steps, including mailings, must be completed within Oregon’s 60 day window for service of process.

Other Resources for Personal Injury Practitioners
The PLF offers 19 litigation/personal injury forms on our Web site, including a civil litigation checklist, service of process checklist, common civil litigation time limitations, and a settlement/judgment disbursal checklist.  We also have many articles dedicated to helping PI practitioners avoid potential malpractice.  An archive of PLF In Brief articles dating back to the year 2000 is available on the PLF Web site.  Additionally, in May 2013 we held Malpractice Traps for Lawyers Handling Personal Injury Cases.  This CLE and the accompanying handout are available to order on the PLF Web site.

Call the PLF for Help 1-800-452-1639
If any of the above happens to you, or if you are concerned for any reason that you may have committed malpractice, call our office.  Ask to speak to one of the claims attorneys on call. 

If you would like assistance with setting up a reliable calendaring or file tickling system, ask to speak to a PLF practice management advisor. 

All PLF services are confidential.

All Rights Reserved – Beverly Michaelis [2013]

Learning the Ropes 2013

Are you new to private practice? Then I have just the ticket for you!

Attend our three day conference – Learning the Ropes: A Practical Skills & Ethics Workshop – for a mere $65.  Attendance at the full program satisfies the MCLE requirements for new admittees’ first reporting period.

Choose from these concurrent sessions:

  • Domestic Relations or Criminal Law
  • Tort Litigation or Estate Planning
  • Civil Motion Practice or Bankruptcy
  • Creating a Firm or Joining a Firm

Can’t decide?  All tracks are recorded for later viewing at no charge.

Plenary sessions include:

  • How to Develop a Successful Practice and Avoid Legal Malpractice
  • Client Communication and Other Practice Management Survival Tips
  • Alternative Dispute Resolution
  • The Ethics of Practice Management
  • Recognizing Child Abuse and Fulfilling Your Duty to Report
  • Negotiation Tips, Tricks, Traps, and Tools
  • Courtroom Do’s and Don’ts
  • Employment Law and Conscientious Communication
  • Bridging the Cultural Gap

Day 1 includes a “Meet the Judges” luncheon.  Day 2 features a networking luncheon with bar leaders and respected practitioners in the fields of Appeals, Criminal Law, Employment Law, Intellectual Property, Business Litigation, Debtor/Creditor Law, Estate Planning, Litigation, Business Transactions, Elder Law, Family Law, and Real Estate.

All meals, including the luncheons, are included in your $65 workshop fee.  The program is at the Oregon Convention Center November 6-8, 2013.  Register here or visit the PLF Web site > Upcoming Seminars (under the heading Loss Prevention – CLE).  Sign up early.  Space is limited!

Copyright 2013 Beverly Michaelis