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Volume XI, Number 296

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E-Filing in the Wild West: Malpractice At The Speed Of Light

Did we really think through this whole e-filing thing?

Unlike the federal system, Texas has no uniform set of rules concerning how to handle sensitive information in e-filed documents. And you no longer have to go down to the clerk's office and rifle through dusty boxes to peak into someone's life.

Perhaps that's why it took me all of 10 minutes of searching online to find information that I could have used to commit identity theft. 

Yeah, 10 minutes. Some poor client's lawyer had included full name, date of birth, insurance number, etc. in a sloppy summary judgment exhibit.

Before you e-file something about your client, you should think about it as if you are publishing it on the internet.  Because you are.

And once it's out there that private information can travel at the speed of light. Here's the illustration I am using in my upcoming paper and presentation on the topic at the 21st Annual Conference On State and Federal Appeals

The speed at which information travels in the age of electronic access could not have been conceived by John Stuart Mill, Jeremy Bentham or even the drafters of Rule 76a. Just take one example from recent events. There was no more closely guarded secret than the helicopter attack that targeted Osama Bin Laden. But a Pakistani IT consultant named Sohaib Athar with the Twitter handle ReallyVirtual unwittingly “live-tweeted” the helicopter assault when he heard the explosions and gunfire. Donald Rumsfeld’s former Chief of Staff “tweeted” the fact of Bin Laden’s death before it was announced by President Obama. The official announcement came at 10:35 p.m. and the location of Bin Laden’s lair was on Google Maps less than an hour later.

Now, imagine your client's medical records or insurance group number or Social Security number flashing around the world, even if a little slower than that.

So what's a lawyer to do? And are the courts in any position to give us some protection if we stub our toes?

Copyright © 2021, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume I, Number 153
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About this Author

Kendall M. Gray, Antitrust Litigation Attorney, Andrews Kurth Law Firm
Partner

Kendall is a board certified civil appellate specialist who has represented clients in state and federal appellate courts such as the U.S. Supreme Court, the U.S. Courts of Appeal for the Fifth, Ninth, Tenth and Federal Circuits, the Supreme Court of Texas and many intermediate courts of appeal. His practice includes a variety of complex commercial, medical malpractice and toxic tort matters, as well as a particular focus in disputes involving employee benefits, managed care and ERISA. The disputes commonly require complex written and oral advocacy on such topics as ERISA preemption,...

713-220-3981
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