TOP OF MIND with Friedman, Oster & Tejtel
EGCR’s Director of Media Content, Jenn Grauer, and Production Specialist, Caroline Sprance, sat down with David Tejtel and Jeremy Friedman of Friedman, Oster & Tejtel, a firm founded in 2014 that “specializes in high stakes, sophisticated business litigation in federal and state courts.” Today’s Top of Mind topic is smoking gun evidence and how the location and access to substantive information is changing based on new modes of technology.
JG: For anyone who isn’t familiar with the term “smoking gun evidence,” can you please explain what that actually means?
DT: Yes. Smoking gun evidence translates to compelling, persuasive evidence of case-critical facts.
JG: With today’s advanced technology, global communication has evolved at an exponential pace. Emails, IMs, hand held devices, text messaging and countless other digital advancements have changed the way people are able to communicate and store information electronically. How is this shifting the location and accessibility of smoking gun evidence?
DT: It’s a very interesting question because defendants never volunteer evidence of their misconduct. So whether you’re a regulator, a prosecutor, or a plaintiff’s attorney, it’s your job to locate the evidence that actually proves the wrongdoing. Before, most communication took place over the telephone or in written documents. When email first emerged, it didn’t occur to most people that those emails could be discoverable and used as evidence against them. Eventually, people started deleting their emails, thinking they were eliminating potentially incriminating evidence, but technology soon caught up and allowed for deleted material to be recovered.
Smart corporate counsel then started advising their clients to be careful about what they wrote in emails. For whatever reason, a significant number of people didn’t realize that those same rules and risks also applied to instant messages. As a result, critical evidence began arising from that type of communication technology. People eventually started to understand that anything they typed into their computer could be recovered through forensic analysis no matter how many times, or ways, it was deleted. But interestingly, the lessons learned in the office didn’t seem to apply outside that professional environment. People were more apt to say something incriminating when writing an email or a text on the street or in a bar on their hand-held device, for example, creating a new refuge for smoking gun evidence.
CS: Do you find that it’s difficult to harvest that evidence? You know it’s there, you know it exists, but how are you accessing it?
DT: The only way to access information in someone’s phone is to either have them agree to it, which they are unlikely to do, or have the court order them to hand it over. You need the court’s buy-in, which is an interesting point because courts aren’t always quick to recognize shifts in communication technology and the resulting need to broaden the scope of discovery. It’s imperative that the courts understand this and say, for example, Well, now not only do you get to look at these emails, you should also get to look at text messages.
The other question is from a technological perspective: does access to someone’s phone or to printouts of their existing texts give you the information that you actually need? The answer is, not always.
JG: Can you give us an example?
DT: Sure. In a recent case, an individual had sent text messages that we knew were important evidence. We insisted that the individual produce their text messages and luckily the court agreed. We got the text printouts and it seemed like something had been deleted. The question was how could we convince the court to grant us broader access to what might be in there? We saw one text message that seemed to be responding to a text that wasn’t in the printout, and we used that as our hook for a deeper investigation. The court enlisted a neutral expert, and the expert went into the phone and retrieved numerous important deleted text messages. This could only happen because two things occurred: first, and critically, the court allowed it to happen; and second, technology has reached a point where you can resurrect deleted information.
JF: We had another situation where we knew an individual had sent really damaging text messages, but we couldn’t access them. Mobile companies frequently offer technology upgrades, and the individual no longer had the phone with those damaging text messages.
JG: How have you found that the courts are responding? Are they aware of the urgency and time-sensitive nature of these situations?
DT: Generally, they are responding rationally. When a plaintiff or defendant requests access to information, the court has a duty to balance the likelihood that the request will lead to admissible and important evidence on the one hand, and a person’s right to privacy on the other. The court needs to constantly be thinking about this. Access to emails and IMs is now fairly ubiquitous. We’re now starting to see a greater judicial willingness to allow access to discovery of text messages. Would we like to see even greater access? Absolutely. Would we like to see it happening faster? Absolutely. We need the courts to adapt very quickly or else the litigants will fall behind in the struggle to prove their case.
CS: I can imagine timing is key in these matters.
DT: Yes, this is all the more reason why it’s important that the courts act quickly, or even create a presumption that access to phones and text messages is allowed. It’s sort of reminiscent of a quote from Alice in Wonderland, “Here we must run as fast as we can just to stay in place.” The defendants will always have the upper hand because they know what to say and what not to say, and they know where the evidence is and isn’t. I’m not suggesting that they intentionally destroy evidence, but they always have the upper hand. We need to be running as fast as we can just to keep up and that means identifying how people are communicating, where they are putting the important information, convincing the court that we should have access, and also figuring out the technological means to actually extract the information that we need.
JF: And this will only be getting more complicated as new forms of communications emerge where messages auto-delete after a minute or two. At that point, we’ll have to figure out how to retrieve even that information. So while technology evolves, we also need to evolve our techniques of uncovering evidence.
JG: What is your firm doing to stay on top of new developments around technology?
DT: One advantage is that generally, the decision makers in these corporations are not the 19-year olds living in Brooklyn and communicating through WhatsApp or whatever the latest app is. We usually have time to identify and understand emerging technology before it filters its way up to the older generations, at which point it becomes highly relevant to our cases. But generally, it’s just a matter of trying to stay current with new technology, and certainly communication technology.
JF: The flip-side in our cases is that occasionally the relevant parties include junior or midlevel analysts who actually could be in their twenties and using cutting-edge technology.
DT: The next few years will be interesting. Many social media platforms historically were, and still are, focused on how to broadcast yourself. I predict that technology will start moving in a different direction where people start asking: “How do I close myself off? How do I hide myself? How do I delete information?” There’s no obligation before a case is filed for corporate defendants to retain all of their electronically stored information. On any given day, a defendant not subject to pending litigation can erase his email. He is free to push a button on a new app that deletes everything on his phone. It’s very important that we stay abreast of technology like this that can make it easy for people to potentially hide important information.
JG: Very compelling considerations. We’ll definitely check back with you next year to see what else has developed in regard to smoking gun evidence. Thank You.