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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  6. 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.
  7. 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.”
  8. 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.
  9. 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.
  10. 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.