When I represent an entity as you might guess if an employee is exited, one of the things that I have access to is their laptop. And as you might further guess, there is all kinds of amazing things you can discover from someone’s laptop and if they are thinking about suing you. A lot of stuff is super useful. As you might guess the law has kind of responded to company’s effort to pry into people’s work computers and on occasions employers might get an overzealous and for example using a forensic experts to fish out the Google password you used to get into your private web based email. Go through it and find out about communications with your attorneys and use those to kill your case.
Now there are some problems with what I just described and that’s a big NO NO you’re not supposed to do it. That’s how the speech came about was really working with companies to try to figure out what are the boundaries of what I can and I can’t get into when I’m working with a machine that I own. I own the machine but it has some content on it, that the employee probably kind of perceives as being something that either can’t get out or somehow is there’s. Now that’s not going to have a whole lot of connection on what you do. So here is the second part of the presentation as we started writing it. The other thing in our practice that came to light and I’m going to ask only for a show of hands for the first two questions I ask. I’m not going to ask for any show any hands beyond that. And if you don’t give me any hands the first time I will still ask the second time. So you totally cannot deter me from asking at least twice.
How many of you as a matter of fact will Google the responsible party in litigation? Right okay. Related question; how many of you as a matter of course and I don’t care if you use Bing or some or some other tool you use, how many of you as a matter of course search Google for your own client? Dude you all are doing well. So if you are searching the one you really ought to be searching the other and by the way if you are not searching either, you should totally start. Like you really really really need to use the tool that is known as “The Internet” to figure out everything you can about both your opponent and your own client early on.
One of the luxuries I have discovered about being a defense attorney is that my work is typically relationship based. Meaning I’m working with an organization and I’m working with more than once. It’s not a one hour representation and over the course of time you develop trust and report, I know which clients behave which ways. On the rare occasions that I end up representing individuals, I discovered—I don’t have that luxury and the person who totally says that I totally get everything you’re saying and do exactly that way. I promise I won’t take any of my employer’s information when I leave company A to go to company B. I understand completely to leave it all there and then the litigation starts and I find out they made a complete and whole sale, electronic backup of all of the trade secrets that they are now using at their new job after I represented to a court that no such thing happened.
Yeah that only happens once before you totally stop trusting individual clients. I don’t know how you all do it candidly, that was the end of it by me. And so I want to talk a little bit about what are the boundaries for what I can and I cannot use. What I describe it as self-help discovery tools to get into it. Now one of the thing, this is the part I’m not going to ask for the show of the hands, how many of you just think in your minds actually advise your clients on how to approach Facebook after they have hired you.
Okay, now if you are not doing that right now, I want you to stop and think for a moment, Again defense lawyer; usually I view discovery as asymmetrical warfare. What do I mean by that? I got a mountain of documents behind me, I got organization full of information, every single document is replete with metadata that may end up mattering, I got to send out litigation hold notices, I frequently have to engage for forensic teams. Just to manage my obligations under discovery. If I turn to the individuals and say give me everything you have that has any bearing on this case taken frequently hand it to me in a red vile. Here we go, they are people they don’t have mountains of documents that is slowly starting to change because what has happened is we for a series of probably borderline diagnosable reasons if we review it as an individuals instead of a collective society have started documenting virtually every part of our lives in one form or fashion or another.