Digital World Is Lawyers’ Hunting Ground in Suits
SAN ANTONIO — The proliferation of social media, email, electronic storage of documents, tweets and texts makes for fertile ground for lawyers sniffing out ammunition in lawsuits against credit unions and other organizations.
It’s also created a whole new specialty for barristers like Gregory Johnson, an attorney and legal technologist who specializes in e-discovery for the Spokane, Wash., practice of Paine Hamblen LLP.
Johnson spoke Tuesday at the CUNA Operations & Service Council/CUNA Technology Council combined conference at the Marriott Rivercenter in San Antonio.
He told a breakout session that the discovery process in a lawsuit against a credit union now can include everything from emails, texts and social media postings to electronically stored documents–including versions with comments and revisions – and Web browsing histories.
And just as the technology itself, case law also is building rapidly in the area. “Where we might see one or two recovery cases each quarter in the case law, now we see four or five a week,” he said.
Johnson’s talk included a number of practical tips, such as a reminder that copy machines have hard drive memories and they should be erased before leased machines are turned in, and he especially drove home the point that not being transparent with attorneys for both sides about what’s available can be costly.
“Federal courts require you to let the other side know what information exists, and without waiting for a request,” he said. “So when someone like me comes to you, to represent your side, and I start asking you for all these things, and it turns out it was there and you didn’t tell, there can be sanctions. They’ve been known to reach a couple million dollars.”
He said he tells his clients to “preserve, preserve, preserve, and tell me about it. We can always fight later about what we’re going to give to the other side. But they have the right to know it exists.”
The best defense is a good defense, he added. Credit unions should have very clear policies about employee use of company computers, and they need to be as concerned about inside jobs–particularly former employees – as outside hackers.
Surveys shows a large number of organizations take days or longer to cut off computer access to ex-staffers, he said, when they should actually be monitored as soon as their continued employment comes into question for any reason.
“There are ways to identify, trap and block information going out that you should be using,” he said.
Another good way to protect potentially sensitive information, he said, is not put it in writing.
“Walk down the hall. Don’t email if you don’t have to,” he said. “Same with voice mail.”
Johnson also touched on document retention, and advised destroying e-documents “if there’s no valid legal or business reason to retain them.” He said the e-discovery will continue to evolve and that new questions will arise.