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."