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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: HIGHLIGHTS SIMPLE STEPS 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 situations. 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 ... NEWS & EVENTS

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