Linked – The Dangers of Counsel Not Being Active Participant in the Discovery Process

Short version- client gives lawyer photos of incident. Lawyer doesn’t pay attention to the metadata, produces them, signs off on the production. After some conflicting testimony during deposition, opposing party requests the native files and they all discover the photos were actually taken 2 years after the fact.

This is a sad tale, but one I think many firms are in danger of. There are a whole lot of lawyers taking their clients word for it when it comes to the collection of eDiscovery. I’ve seen it happen over the years, and I’ve heard many a story of productions being signed off as full and complete by lawyers who don’t even realize their client has taken it upon themselves to not produce some responsive information, and not tell their lawyer about it. Let alone ones getting fake evidence from their clients like the story below.

Both are a danger. I’m not sure how you can always guarantee a client isn’t telling you the full truth beyond going onsite and collecting the data yourself, which brings about plenty of it’s own risks. But I think this is a situation that requires more than a cursory discussion. Take a look at that metadata, look for inconsistencies, or email messages that seem to be missing, etc. That might tell you whether to be suspicious or not.

And, frankly, always request the metadata too while we’re at it. If the producing party in this case had been required initially to produce the metadata, they could have been much more likely to notice the problem early on, and avoided a lot of this mess. At the very least, the receiving party would have been able to catch it immediately.

There’s enough fake stuff floating around out there that’s difficult to determine. Don’t let your case get derailed by something that could have been seen just by looking at the dates of digital photos.

The Dangers of Counsel Not Being Active Participant in the Discovery Process

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