Electronic Evidence in New Jersey and Pennsylvania: a Primer

This past August, eyes were focused on a Texas courtroom where conspiracy theorist Alex Jones faced a jury tasked with determining damages to award to the family of a Sandy Hook massacre victim for defamation by Jones.  While Mr. Jones was on the stand, prosecutors revealed that his attorney inadvertently emailed them two years’ worth of Mr. Jones’ text messages.  Not only did these messages revealed that Mr. Jones perjured himself when he testified that he did not have text messages related to the Sandy Hook shooting massacre on his phone, but it was revealed in open court that Mr. Jones’ attorney failed to take protective measures to reclaim the text messages as protected material under the attorney-client privilege.  This bombshell revelation likely, if not definitely, contributed to $16 million in damages Mr. Jones is required to pay the parents of the Sandy Hook massacre victims.

What have happened if this case were held in a New Jersey or Pennsylvania state court?  How do each state’s rules of ethics address a lawyer’s obligation in handling electronic evidence and what is the procedure when such evidence is inadvertently disclosed?  Both states adopted Rules of Professional Conduct for attorneys that largely mirror federal rules.  They are worth reviewing as a matter of course, but Mr. Jones’ counsel’s apparent failure to abide by them serves as a cautionary tale.  While seemingly commonsense, these rules should not be taken for granted and frequently reviewed in light of constant advances in technology.

Both New Jersey and Pennsylvania have largely adopted the American Bar Association’s Rules of Professional Conduct with minor variations.  Importantly, both states prioritize attorney competence when representing clients, which may mean getting up to speed on new modes of electronic discovery and securing data protection programs to safeguard sensitive client information.  Attorneys also must represent their clients with diligence, which may mean swiftly seeking to reclaim confidential client information that is inadvertently disclosed through electronic means to opposing counsel and filing protective orders with the court.  In short, events like those that occurred in Mr. Jones’ trial are a somber reminder for attorneys to review the Rules of Professional Conduct where they practice and consider how they may apply in our ever-changing electronic landscape.

New Jersey’s Rules of Professional Conduct can be found here.

Pennsylvania’s Rules of Professional Conduct can be found here.