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Recent high-profile cases show importance of competence when using file-sharing platforms

A Law.com article featuring quotes from Reed Smith Records & E-Discovery Group chair David Cohen highlights some recent high-profile discovery blunders relating to lawyers' use of file-sharing platforms like Dropbox. In "From Alex Jones to Clarence Thomas: What’s Behind These Inadvertent Dropbox Disclosures?" Cassandre Coyle discusses the causes of inadvertent disclosures like the one in the already-notorious case involving conspiracy theorist Alex Jones – and how legal professionals can avoid similar mistakes.

The most recent instance of this type of error to reach the headlines involved John Eastman, lawyer for former President Donald Trump, who was ordered to turn over emails to the House January 6 Committee. Eastman's legal team made a last minute production containing an active Dropbox link to various confidential communications. Among these were emails exchanged by Trump's legal team referring to Supreme Court Justice Clarence Thomas as their "only chance" to stop the certification of the 2020 election. When the 9th Circuit Court of Appeals then sought filings on Eastman's request for a stay, the Committee sent Eastman's email that still contained the active link, inadvertently making them accessible to media outlets.

The article discusses three key points to help lawyers avoid making similar mistakes when using file-sharing platforms:

  1. Process - Ensure that proper workflows are in place and followed to account for privilege and confidentiality concerns when producing information via file-sharing platforms. Consider and plan for the extra time these steps may take; in the Eastman case, for example, making productions before the last minute may have prevented important steps from being overlooked.
  2. Know Your Technology - Most file-sharing platforms have security features that provide protection against inadvertent disclosure of confidential and privileged information, such as dual-factor authentication or password protection. Learn which features your preferred platform offers so that, if a link is shared inadvertently, its sensitive contents are still protected from disclosure.
  3. Training and Assistance - The high visibility of inadvertent disclosures like those by Jones and Eastman have raised awareness of issues surrounding technological competence in the practice of law. Seek out training offered in these areas, and be on the lookout for other states to follow the lead of New York, which this year added a mandatory legal education requirement for cybersecurity, privacy, and data protection.  Finally, not every lawyer can also be a technology expert, so see out assistance from competent experts when needed.
Part of it is lawyers aren’t really trained in technology, but part of it is how easy it is to make these mistakes in this fast evolving technological world ... Was it Spider-Man who said, ‘with great power comes great responsibility’? … Technology has brought us great power and also brings us greater responsibility because we have to be more careful about securing the data of our clients. – David Cohen, chair of Reed Smith's Records and E-Discovery (RED) Group

Tags

ediscovery, dropbox, technology, e-discovery

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