Livescribe Smart Pen: That, Too, Is Discoverable in Litigation!
Fellow blogger Matt Handal did a post today about his Livescribe Pulse Smart Pen. I love technology and I absolutely love this gadget! However, Matt's post raised a red flag to me about the discoverability of taped or recorded conversations in litigation.
For years, lawyers have been requesting "electronic discovery" from the opposing side. Traditionally, the debate has been about emails and native electronic files. How are we to collect the information? How are we to process the information? How are we to produce the information? But the debate mainly focused on computer servers, desktops and laptops.
Then came mobile devices, such as Blackberries and iPhones. Is the information on these devises subject to discovery? Instant messages and other data stored on mobile devices are generally discoverable under the applicable rules in your jurisdiction covering e-discovery. In one reported case, the court found it suspicious that all data had been wiped from two Blackberries and ordered sanctions for spoliation of evidence.
So what about the data from a Livescribe Smart Pen? I would treat this data as any other form of data ... whether in hard-copy or electronic format. If a construction schedule is discoverable, then the native Primavera files are most likely subject to production. If a particular written statement is discoverable, then the recorded version is most likely subject to production. If hand-written notes are discoverable, then the electronic notes transcribed by the smart pen are most likely subject to production.
In the end, I am extremely leery of recording any attorney-client conferences, as well as any meetings with consultants and testifying experts. The Livescribe Smart Pen would be great for hearings and other public meetings. But understand that the digital recording may be otherwise discoverable depending on your jurisdiction.
Matt Handal agrees: "For privacy reasons I restrict my use of the smart pen to proposal and strategy related meetings."
Good point. I think the rule of thumb is everything is discoverable.
I would just say that those who read my site are mostly marketers in the A/E/C industry. So, they don't think about discoverability much. In fact, I never heard that term when i worked for a designer. But i think there are some courtesies that everybody should consider when using a device like this.
First, you don't use it unless people know that you are using it. You can't record people unless they know and agree.
Second, as a marketer, you shouldn't use it with clients. But if you are brainstorming with teaming partners, I think that is ok. For example, i used it with a software developer when brainstorming ideas for a new contact management system. But I asked and got permission first.
But I will say it is a great tool for the limited purposes I use it for. For some, like lawyers, its not going to have much use. But for architects and engineers who are working on proposals, it could be a game changer.
Matt: Thanks for the comments, although you don't always have to have consent of the other party. Many states require only one party's consent, which could be the one taping the conversation. In some states like Maryland, you need both parties' consent (i.e., Linda Tripp debacle). I agree that this gadget is AWESOME!!!
Gents,
I find this whole debate of privacy/recording/photography etc interesting because there are no laws or norms yet formulated. However, the pertinent question is what should be allowed? Let me take an example - Muslims do not want their ladies to be seen by other men - so they wear the burqa (veil). But if a Muslim girl goes out without a burqa should other men close their eyes? Not a very perfect example but raises a debate!! Now if a meeting is taking place and everyone present in the room can hear it and right it down then the data is already transferable through discussions outside the meeting by any single member , or by typing. Then recording by livescribe pen is the same thing,is not it? Either you don't speak( not go out without a burqa) or then do not object other men looking at you (intentionally or by chance) so do not utter in a meeting which is confidential or strategic or trust the members that they would not leak the info either verbally/typing or by livescribe pen!! So please let us not make too much noise about others invading our privacy, not crate evidence to prevent it. Thanks for your patient reading!! Cheers!!Sandeep