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!!!