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Protect Your Digital Footprint: A Long-Time Litigator’s Top 6 Do’s and Don’ts

We’ve all shot off a reactionary text or email to a spouse, boss, business partner, client or co-worker in the heat of the moment. But, typically, we don’t pause to contemplate whether that communication could have long-term legal implications or that we might even face questioning about it under oath someday. But maybe we should. Now more than ever, businesses and employees need to protect their digital footprint at all costs.

Parents commonly teach their teens about the lasting nature of images and words shared on the internet and in written communications, but many adults fail to practice what they preach. Unfortunately, the cost of firing off angry words in an email or text without thinking it through is becoming increasingly high in business litigation. While we may not always have time to contemplate every possible outcome before we write, we can take steps to limit potential negative fallout from those words.

READ: Words Matter: Tips for Crafting Public Statements on Social Issues

As a long-time litigator, here are my top six do’s and don’ts to protect your digital footprint.

DO: Think before you ink

As a general rule, even when you’re not facing litigation, strive to be thoughtful and prudent about what you put in writing. Keep responses short and simple and stick to the facts — don’t exaggerate or make claims that aren’t true.

As a practice, I aim to pause before sending a sensitive communication and let my adrenaline rush wear off before responding to something inflammatory or upsetting. Sitting with your thoughts for several hours or even a day will almost always help you avoid sending reactionary or threatening communications.

DO: Keep work and personal emails separate

Hopefully, the need to do this sunk in during the public debacle surrounding Hillary Clinton’s use of personal email during her time as Secretary of State. But, even if you don’t plan to run for President someday, there are other important reasons to keep these email accounts separate.

First, nearly every employer has access to and control over your work emails. When you use your personal account to send business emails, you not only potentially risk the protection of your company’s confidential and proprietary information, but you also risk (and perhaps necessitate) having a review of all of your personal emails during the course of litigation.

Maintaining a wall between personal and business emails won’t guarantee with 100% certainty that your personal emails won’t be brought into your business litigation, but it certainly reduces the chances of that happening.

DO: Understand the scope of electronic discovery

The average person is often unaware of the depth and breadth of metadata that can be uncovered in litigation. What you send via text and email is, by and large, permanent. The same goes for social media and internal messaging platforms like Slack. When your digital footprint is under a microscope, emails, photos, texts and documents are open for scrutiny, and everything from when a file was accessed to who accessed it to where it was accessed will come to light. Apple’s latest updates allow iMessages to be recalled, “unsent” or even edited, but these messages may still be recovered in e-discovery.

DO: Be honest with your attorney

Typically, your computer, phone and other electronics will be imaged during electronic discovery. This means that all of the files that were stored, accessed and altered, emails sent and received, websites visited, time stamps and IP location for every activity — virtually everything you’ve said or done online — may be subject to discovery.

Even knowing this, clients may not be 100% forthcoming about the facts, whether intentionally or not. The sooner your attorney knows the facts, warts and all, the better off you’ll be. Your failure to share the full truth can irreversibly damage your case, even if you think a particular fact may not be relevant.

DON’T: Try to DIY

Litigation is time-consuming and expensive, and clients understandably want to save money. This often means they wait to consult an attorney until litigation is inevitable. However, they could have saved time, money and even potentially avoided litigation altogether if they had consulted an attorney sooner.

Once litigation commences, clients often want to try and save money by collecting documents and data from themselves, but it is preferable to have both sides use third parties for data collection. Doing so is far more likely to avoid costly discovery and production issues and will give you a better chance at a faster resolution.

DON’T: Delete the data.

You are legally obligated to preserve documents and data, including emails, texts, calendar entries and photos if you think or know you are heading toward litigation. If you delete data, it will be discovered. Not only will you potentially face significant monetary sanctions for the destruction of evidence, but the court will likely assume that the intent was nefarious — even if it wasn’t.

Don’t get caught leaving a trail of unsavory digital breadcrumbs behind you. Even if you never end up facing litigation, you’ll still benefit from trying to protect your digital footprint and considering the long-term effects of what you do online ahead of time.

Cara ThortonCara Thornton is a skilled lawyer with a practice focused on complex commercial litigation, including intellectual property, business torts, cannabis law, real estate, and other business-related disputes.

Silver linings provide optimistic future for litigation post-pandemic

Like most of America, Colorado courts have reopened throughout 2021 as the COVID-19 vaccine rolled out. This reopening comes after courts were forced to shut down or become remote.  

Many court functions that are more judiciously and efficiently conducted in person, like jury trials and complex hearings, are resuming, but some practices forced on courts in 2020 are likely here to stay. Remote practices have allowed courts, lawyers, litigants, and the public to gain more efficient access to justice.

As a result, Colorado can expect to see some courts continue with a hybrid in-person/remote model for certain functions in hopes of sifting through the case backlog the pandemic caused and providing cost-efficient resolution where in-person proceedings may be otherwise unnecessary.  

Many judges and attorneys recognize the utility of remote hearings including routine case management and status conferences, and certain discovery dispute and evidentiary hearings. Some courts may continue to allow certain witnesses to testify remotely at hearings and trial. Holding certain proceedings virtually may become a mainstay in courts, particularly those courts located in more remote areas of Colorado where access for litigants may prevent some administrations of justice.  

Similarly, holding appropriate proceedings virtually reduces the necessity of travel leading to more cost-efficient litigation. Certainly, as winter approaches and inclement weather threatens to impede travel, the option to hold proceedings remotely will be a welcome backup to Colorado lawyers and courts. 

Other litigation functions will likely continue to be offered with remote options. The use of virtual means will save costs where travel can be avoided, which clients and attorneys alike will appreciate. Virtual depositions, particularly of less critical witnesses, are likely to remain an option moving forward. 

Likewise, virtual mediation has proven to be successful where appropriate and may provide litigants with increased accessibility to mediators if travel is no longer a consideration. However, for many matters, there remains no substitute for getting the parties together in person to resolve disputes. 

Despite the increased efficiency and flexibility remote proceedings can provide, court dockets will remain severely backlogged following a year or more with little trial activity. Criminal cases with constitutionally mandated deadlines taking precedent over even older pending civil matters, continue to clog court dockets. This results in significant uncertainty for civil trials, which may be double-, triple-, or even deeper backlog on court dockets.   

With courts still conducting jury trials at a reduced pace, courts cannot keep up with the ever-growing new case filings, worsening the backlog. Many civil jury trials have been, and will continue to be, pushed out to 2022 and beyond. Lawyers and their clients should discuss whether their case is suited for a bench trial in hopes of obtaining a quicker resolution as opposed to waiting for a jury trial.  

 The ripple effect of the COVID-19 court backlog will likely take years to overcome. 

This uncertainty regarding the time it may take to resolve a matter may push some litigants toward alternative dispute resolution options, such as arbitration, hoping to achieve a faster, more efficient resolution to their dispute. Arbitration has its downsides as well, however. Arbitration can involve costly fees, awards are nearly impossible to appeal, and because arbitrations are not subject to the same rules as courts, many litigants may see arbitration as too great a gamble. Some companies, including retail behemoth Amazon, have removed arbitration provisions from their contracts, concluding that they would rather face their adversaries in court.  

A decrease in the use of arbitration, coupled with over a year’s worth of stockpiled litigation, could prove difficult for courts to handle. 

As the worst of the COVID-19 pandemic moves into the rearview mirror, and businesses become less concerned about making ends meet each month, litigation activity is expected to continue to increase. COVID-19 has generated a plethora of landlord-tenant, employment, and business contract disputes. Continued market uncertainty will result in an increased number of bankruptcy filings. The termination of eviction moratoriums at the state and federal level will generate large numbers of forcible entry and detainer actions in both the commercial real estate and residential sectors. Colorado case filings are up this year, and all indications suggest that litigation will continue to increase.  

The resultant flood of civil litigation may further strain already backlogged court dockets. 

But it’s certainly not all doom and gloom. Over the last year and a half, the world has learned to be more flexible and has developed new tricks of the trade. Courts and lawyers in Colorado can expect to see some of those new tricks become the norm. For clients and litigants, this hopefully continues to result in better access to justice and better, more efficient representation. 

For clients and litigants, this hopefully continues to result in better access to justice and better, more efficient representation. Eventually, the court’s dockets will balance out, and the justice system will be able to put everything that it has learned over the pandemic to its best and most efficient use.  

Allison M Hester Allison M. Hester is an associate attorney in Denver-based law firm Moye White’s Litigation Section. She can be reached at [email protected].

Caleena S Braig Caleena S. Braig is an associate attorney in Denver-based law firm Moye White’s Litigation Section. She can be reached at [email protected].

Joseph W Mark  Joseph W. Mark is an associate attorney in Denver-based law firm Moye White’s Litigation Section. He can be reached at [email protected].

How the pandemic will impact litigation beyond 2021

We will remember Friday, March 13, 2020 as the day the COVID-19 pandemic struck Colorado. Colorado attorneys left their offices that evening oblivious to the pending threat the pandemic posed to litigation as we knew it. Since then, the pandemic has forced attorneys to navigate unprecedented territory not only within their businesses but also for their clients.

In a swift action, COVID-19 forced courtrooms into near stasis, shutting down litigation for more than 10 months and freezing ongoing cases in their tracks. In response to the recent spike in reported COVID-19 cases, most Colorado state and federal courts issued orders vacating all jury trials through early January. These orders will likely extend further into 2021 as cases may continue to rise after the winter holidays. As a result, the pandemic and corresponding court orders have inundated courts with case backlogs and pushed the rescheduled trials into 2022. When courts recommence jury trials, criminal cases will have priority over civil matters. Thus, civil litigants currently have no guarantee of keeping their scheduled trial dates even for trials scheduled as late as 2022.

While the pandemic halted trials and courtroom proceedings, it also pushed Colorado to pass emergency protections against certain debt collection activities and evictions. If the legislature does not extend these federal and state protections into 2021, Coloradans will see a rise in debt collection filings and eviction cases throughout the state. Additionally, once these protections expire, individuals may be responsible for payment of missed rent or otherwise face eviction.

Despite the disruption in the court system, litigants rapidly began adapting and implementing changes in how they litigate cases and these changes will likely remain in 2021. The pandemic forced courts and parties to become more flexible and embrace alternative litigation solutions that will carry into 2021. Like in 2020, litigants should expect a continued increase in virtual options like Zoom and WebEx, which will be used to conduct depositions, mediations, arbitrations, hearings, and bench trials. These virtual options will continue to reduce litigation costs and allow disputes to resolve at a more efficient pace. Given the relative success and increased confidence in these platforms, virtual opportunities will likely continue to some degree post-pandemic.

While 2021 hopes to see a reopening of the courts, there will still be a lack of certainty in confirming trial dates, particularly in the upcoming year. The considerable delay in the courts will likely encourage parties to seek alternative dispute resolutions such as mediations and arbitrations. Litigants may also forgo their right to a jury trial in hopes of getting a quicker and potentially virtual bench trial. Parties can expect to see a higher rate of settlements given the court backlog but may also see a decrease in settlement values due to the parties’ impaired financial situation and inability to pay. Parties may also find more flexibility in payment terms to resolve disputes efficiently.

As of November 2020, litigants have filed more than 6,000 complaints throughout the U.S., with more than 150 complaints filed in Colorado. As of August 2020, litigants filed more than 4,000 COVID-related complaints in more than a dozen jurisdictions, ranging from business-interruption claims to labor and employment claims, among others. Despite the pandemic, litigation has not decreased, and there is no expectation of a decline in 2021. Not only will there be an increase in debt collections, evictions, and COVID-related cases, but there appears to be an increase in litigation as a whole. However, the pandemic has changed how parties litigate and resolve their disputes. Changes that may be here to stay beyond 2021.

Kelsey R. Bowers 1 Caleena S. Braig 1 Kelsey R. Bowers and Caleena S. Braig are both associate attorneys in Denver-based law firm Moye White LLP’s Litigation Section. They can be reached at [email protected] and [email protected], respectively.