One of the most important aspects of working with corporate clients is understanding the businesses. From general business functions to the overarching models, this knowledge can be extremely valuable in both transactional and litigation work. However, client technology is becoming more industry specific, often making it infeasible for attorneys to learn. It is in these cases that a quality IT team working on behalf of the firm is not only the most efficient way to service a client, but also may be a litigation requirement.
In a recent Texas case, technological shortcomings have come to the forefront with a judge actually leaving the door open for jail time if an attorney and his client do not comply with his discovery order. The personal injury matter stems from a trucking accident in which the driver allegedly made an illegal turn and struck a motorcyclist. Counsel for the plaintiff requested GPS tracking data for the truck, only to be given unintelligible tracking maps. The defense also instructed plaintiff’s counsel to interview a witness supposedly knowledgeable in the tracking system, which turned out to be the wrong witness after a trip was made out of state.
For its part, the defense asserted that it undertook significant efforts to retrieve the data, including an outside company to engage in a multi-day effort to comply with the prior orders. The court found this explanation insufficient, giving the firm and its client just one more chance at providing the data before it could be considered contempt.
The position of the defense is not facially implausible and is not uncommon in litigation. Attorneys are often asked to produce data in discovery that comes from programs that cannot be printed to a simple PDF document. In such cases, special programs and expertise are required to respond to discovery, and the fact that it is difficult to do is no excuse for failing to produce the data in a timely manner.
Attorneys may not understand how to obtain it, but it remains their ethical and procedural duty to retain IT specialists who can. In addition to facilitating compliance with discovery requests and orders, these professionals can also be available to explain any difficulties to the court as needed. Attorneys in modern litigation should therefore ask their clients at the outset of a case where any relevant data is stored, and how to produce it. Discussing its location and method for production should then be immediately addressed with either the client’s IT team, the firm’s internal IT team, an external vendor, or all three. As the above Texas case shows, waiting until after the technological disaster hits to claim ignorance will not be sufficient in just about any jurisdiction, and attorneys must be prepared to answer for any alleged technological difficulties.