The convenience of our increasingly mobile society comes with the increased potential for loss and theft. Protecting and backing-up your Electronically Stored Information (ESI) often involves some very simple, common-sense steps, including: use strong passwords; use encryption; backup your data; and avoid unsecured public WiFi hotspots. This is especially true while you are traveling since data on your mobile device can be compromised on the go. Password protecting your laptop or phone is your best first-line security defense. If lost or stolen, a laptop or locked phone with a unique and strong password will deter a casual thief and protect the integrity of your data. However, to thwart more determined thieves, encryption of the data on the laptop hard-drive or smartphone may be necessary. Services also exist that can help you track and remotely wipe the drives of laptops and smartphones. WiFi connectivity to the Internet, while convenient and often inexpensive, is largely insecure. Even encrypted WiFi can be easily compromised, so resist using unsecured WiFi networks. Instead, use a mobile/cellular data connection on your smartphone, a mobile broadband for your laptop via an AirCard or other device, or use a Virtual Private Network (VPN) to remotely use your office or home Internet connection and network. Bluetooth technology is fairly standard and provides a way to connect and exchange information between devices within 30 feet of each other such as mobile phones, earpieces, laptops, printers, etc. over a secure, globally unlicensed short-range radio frequency. While convenient, it also makes mobile phones vulnerable to security breaches unique to Bluetooth. The practice of “Bluejacking” uses Bluetooth technology to send instant messages to strangers. Likewise, “Bluesnarfing” uses Bluetooth technology to capture data (contact info, messages, etc.) from Bluetooth-enabled phones without the owner’s knowledge or permission. The Model Rules, specifically Rule 3.2, generate broad guidelines for ethical behavior during discovery. Lawyers cannot lawfully obstruct or slow down the discovery process, nor can they alter or destroy potentially probative evidence. Even before the 2006 Amendments to the Federal Rules of Civil Procedure, these principles were applied whether a party sought | discovery of paper or testimonial evidence, or of electronic data. The American Bar Association's (ABA) Civil Discovery Standards explicitly contemplated electronic discovery in 2004, describing numerous sources for data that could be potentially responsive to discovery requests and stressing the value of the pretrial conference to identify and resolve conflicts over electronically stored information. In 2004, The Sedona Conference, a legal think tank, first proposed a series of Principles of Electronic Discovery ("Sedona Principles") designed to offer further guidance to lawyers facing electronic discovery issues. Their goal was to interpret electronic discovery as fitting within the same general legal framework as paper discovery, though with fact-specific applications to electronically-stored data. Underlying the Sedona Principles is the idea that the practical experience of litigation and the day-to-day needs of the client should motivate one's ethical conclusions. Absent relevant differences, then, treating electronically discoverable material as similarly as possible to paper material seems ethically well-tailored to minimize the burdens of litigation. As the Sedona Principles conclude, "[t]he best approach to electronic discovery begins by recognizing how existing precedent and new technology interact." However, this technology presents new and unique problems to civil litigators. Factors such as the massive volume of electronic data typically generated by an organization, the ease of replicating that data, the difficulty in permanently "deleting" such information, and the challenges of accessing relevant archived data, counsel for special rules and attendant ethical obligations to govern them. The ABA Civil Discovery Standards and the Sedona Principles provide some guidance here. The comments to Rule 31 of the Civil Discovery Standards list many considerations that parties and the court should consider in preparing for electronic discovery, such as defining the relevant universe of documents and the availability of preservation stipulations. Similarly, the Sedona Principles also rightly point out that steps such as "instituting defined, orderly procedures for preserving and producing potentially relevant documents and data, and establishing processes to identify, locate, retrieve, preserve and produce data that may be responsive" will help attorneys meet their ethical obligations. Taken together, both sets of guidelines stress the importance of preparation for the possibility of electronic discovery requests well in advance of litigation. |