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After the Olympics, I’m looking forward to the return of new episodes of The Good Wife. It’s a brilliant show, with characters that you truly love to hate, and a leading lady that is unflappable, no matter WHAT is thrown at her. And she always has good hair, too, which is amazing considering that she’s a mom and a lawyer. But, I digress. The Good Wife has been lauded as the “most tech-savvy show on TV” by Wired Magazine, and the scripts have given us not only a reminder that electronic information is EVERYWHERE, but teach us some pretty good lessons about what we as counsel, employers, employees, litigants and witnesses should be thinking about when it comes to evidence:
Video is Everywhere
I’d be hard pressed to recall an episode of the show that DIDN’T find a video that turned the tides of the case. Remember the slip and fall case where Kalinda (the firm investigator) pieced together video from cameras posted outside the residence where the accident occurred by nearby shops? Video cameras are everywhere — but you need to get to them fast, as they are over-written quickly. If your case involves personal injury or criminal activity, video should be at the top of your list of ESI sources to check out.
The more recent David and Goliath episode is an even better example of why you need to know what’s out there. Alicia’s client — a local band — sued a popular TV show for copyright infringement after the show covered the band’s song but denied royalties. Robyn (Alicia’s investigator) discovered that the show had to release the song on iTunes in Sweden before releasing it in the USA and that the engineers directly ripped the Indie band’s track constituting actual theft. Video of the clip from the Sweden iTunes store tipped the evidentiary scales for the band. (On a side note, if you haven’t seen the cast the video made of the song “Thicky Trick” from that episode, you should check it out.) And don’t forget that the last episode before the Olympic break showing security camera video of the Democratic chairman carrying a ballot box out of the back of a truck. The video was anonymously tipped to a reporter, giving Ely more headaches to deal with for the Governor — and Alicia, as she had previously defended that box in court on Peter’s behalf.
Lawyers aren’t used to thinking about YouTube and other video sources as an evidence treasure trove, but you need to start. You need to know what’s already out there, where it is, and, if you have to defend it, be able to put it in context before the other side gets it. Employers need to know what video is being captured on their property and make sure that retention of relevant video is tied into the legal hold protocol so evidence is not over-written. Be aware of what can be out there. It can help you or harm you depending on what side you’re on.
Do Not Overlook Social Media as evidence
Social media has been center stage in multiple episodes — viral videos that impacted political campaigns, Alicia’s daughter Grace being listed as one of the hottest political daughters on a website (that led to her abduction), and the episode in which “Scabbit” (modeled after “Reddit”) maintained a site where average citizens had determined Alicia’s client was a terrorist based on postings of photos and information amassed from crowdsourcing. That episode highlighted the fact that the law is far behind technology, and lawyers have to be savvy in their arguments to keep cases with facts that are beyond both the understanding of the court and the law afloat under traditional legal principles. Being on Facebook isn’t enough — lawyers need to understand what social media sites are constantly popping up, how information is created and stored on them, and be prepared to investigate as part of discovery. If you can’t do that, you better find someone that can.
Plenty of case law exists now on the privacy issues of posting on Facebook, but new issues arise daily with all of the social media platforms that are launched weekly. Make sure that you, or your lawyers, are savvy enough to know the potential sources of ESI and to argue the intricate legal issues that they raise.
Your Company Owned Mobile Device is NOT Your Own
Alicia learned that the hard way when she was escorted from the halls of Lockhart Gardner after Diane found out that she was leaving to start her own firm. Will confiscated her Blackberry with no opportunity for her to move her data over to a new device. No device, no data — emails, contacts, etc. And, he had access to all of her communications, including when her daughter called her on the number later that day. If you’re an employer, you need a BYOD policy that deals with recovering employee’s devices for legal holds, upon exit and if you suspect they may be involved in nefarious activity. Here’s a tip: remote wipe needs to be part of the plan. If you are an employee, you better understand the risks of having your information on an employer’s device and backup your personal data regularly (photos, etc.). If you lose that iPhone with photos of your kids, and the company policy is to remotely wipe the data, your photos will be gone. A cloud based solution that automatically backs up your photos and other data may be a good investment.
The Good Wife is an interesting sandbox for what the new and upcoming legal issues really are in ESI. They aren’t going away — just growing in number and complexity. Make sure you and your team are on top of them.
And be sure to catch The Good Wife on Sunday nights — you’ll be glad you did.
- Tagged: Alicia Florrick, BYOD, crowdsourcing, e-discovery, ediscovery, ESI, ESI Attorneys, facebook, Kelly Twigger, Reddit, Social Media, The Good Wife, Thicky Trick, video, Will Gardner, YouTube