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Digital Devices in Civil Litigation

Lawyers have an ethical obligation to be competent in the matters they handle, including understanding technology involved in litigation. Litigators must be knowledgeable about the potential evidentiary value of smartphones, tablets and other digital devices. This means knowing what information is carried on them, and potentially retrieved from them, as well as being versed in the legal and ethical limitations on extracting digital data from such devices through forensic examination. The limiting principles that lawyers (and forensic examiners) must appreciate are found in laws that prohibit wiretapping, computer abuse, and eavesdropping, and protect privacy rights, as well as in the ethical first principle that lawyers may not engage in, or enable clients to engage in, criminal or fraudulent activity.

Lawyers are responsible for determining the legally permissible boundaries for conducting forensic examinations of digital devices, and in so doing must carefully consider the quality and scope of the consent given, i.e., the authority under which the examination is to be performed. What may start out as a lawful search may quickly turn questionable, or even plainly unlawful, depending on the scope of the permission granted, what evidence is developed, and how the recovered information implicates the privacy rights of third parties. While the evidence from such devices can amount to a smoking gun, you don’t want it to backfire and find yourself sued, prosecuted or disbarred for actions that, in hindsight, were not lawful and could have been avoided with a modicum of foresight.