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Out-of-state discovery and secure technology

| Jul 31, 2020 | Commercial Litigation |

More people across the country are adjusting and becoming comfortable with online communications, including videoconferences and remote meetings. The legal profession has been using technology for years, and these tools can be especially helpful when litigation crosses state lines.

The confidential nature of many conversations and documents that must be part of an attorney-client relationship brings up a number of concerns. The ABA Journal explains how the legal field is dealing with them.

Online communications

The American Bar Association recognized the need for ethical guidance regarding how much security various situations may require. Consequently, the Association published a formal opinion that advises attorneys regarding secure communications with clients. An additional paragraph in the opinion’s Duty of Confidentiality clause states that lawyers must take reasonable precautions to safeguard client information related to representation. This includes an obligation to become familiar with the technology and the risks and benefits of using it.

There is no hard-and-fast definition of the standards for reasonable security measures, as the facts differ based on any given situation. Therefore, security obligations involve a risk assessment process.

Email security

In most cases, a secure email account is likely to be enough to prevent unauthorized access to the information. However, a client may request further precautions in many cases, and in others, legal requirements indicate a higher level of security is necessary.

Videoconferencing encryption

Transport encryption protocols involve a private or secure connection, authenticated users and message integrity checks. Gmail has a videoconferencing tool that provides this level of security, as do many others.

End-to-end encryption has a higher level of security than transport encryption. It encrypts the communication at both ends of the conversation so that no one can access or intercept the message in between them. Government authorities, hackers and even others in the firm cannot view the video. Tools that offer end-to-end encryption often come at a price, although some provide limited features without charge.

While clients may not be knowledgeable enough to understand the technical details, they may still benefit from a brief discussion about the privacy and security of the communication tools the firm uses.