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44 Law Prac. 18 (2018)
Hot Documents: Handling Stuff You Arguably Shouldn't Have

handle is hein.journals/lwpra44 and id is 340 raw text is: 


Hot Documents: Handling Stuff

You Arguably Shouldn't Have

By Lucian T. Pera

LAWYERS AND CLIENTS are awash in electronic data
and documents, and much of our lawyer life involves receiving,
viewing, sharing and sending this stuff to clients, opposing
counsel, courts and others. That's surely why, more than ever
before, every lawyer's life includes moments when we realize
that we've come into possession of a document or data that we
shouldn't have. Or a document that we just know someone else
will argue-rightly or wrongly-that we shouldn't have. Yikes.
I believe this problem is becoming more common, and case
reports and our common experience confirm this.
  The realization that this problem is on your doorstep can
bring elation or fear, or sometimes both, depending on what the
document is or says. Is it the smoking gun that destroys your
opponent's case? The errant note by the opposing party in a deal
to their lawyer that lays out their secret negotiating strategy? Or
has your client brought you a very interesting document that
looks like it may have been stolen? What do you do-especially
when you need a very quick answer to the problem?
  If this hasn't happened to you yet, it will soon enough.

Doubtless you have heard and thought about pieces of this
topic before. And you've likely experienced an email sent to the
wrong recipient.
  I've thought for quite some time that many lawyers-and the
rules themselves-define the problem too narrowly, and that
this narrow view makes it harder both to recognize it and work
through it. I submit that there are a number of related kinds of
problems we lawyers sometimes see that share much in the way
we must address them and that redefining the problem more
broadly makes recognizing it and solving it more manageable.
  I intentionally cast the net wider. I include inadvertently

18 Law Practice September/October 2018  www.lawpractice.org

produced privileged documents, sensitive information received
in unusual or murky  ways from opposing parties or third
parties and even stolen documents received by a lawyer or his
or her client.

I doubt I need to remind you of all the dire consequences that can
befall lawyers in these situations, but they have included lawyer
disciplinary sanctions, court sanctions of the lawyer or client,
monetary penalties, lawyer disqualifications, adverse inferences,
dismissal of cases, claims (e.g., invasion of privacy) and even
criminal charges.
  My premise is straightforward: What we do as lawyers requires
us to identify problems that are of a common type, so that we
can address them in a similar way. This problem here is usually
too narrowly defined. If you define the problem more broadly,
you can more readily spot it. When you define the problem more
broadly, a common set of issues arises across a broader array of
situations, and there are common approaches to handling these

So let's try defining the problem this way: What do you do
when you have data or documents that someone has claimed,
or may claim, that you or your client should not have, usually
(but not always) when the documents might somehow help you
or your client?
  Exactly what kinds of problems are we talking about? Any
occasion on which you wind up in possession of-or with your
client in possession of-documents or data you (arguably)
shouldn't have.
  Suppose you receive ...


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