1. CLIENT NOTICE REGARDING REQUIREMENTS TO PRESERVE EVIDENCE, GUIDELINES REGARDING SPOLIATION, CAREFUL
USE OF ELECTRONIC DEVICES, AND POTENTIAL IMPACT ON ATTORNEY-CLIENT PRIVILEGE
Please note that the law has recently changed to require all parties to litigation, or even just people aware of the potential for litigation, to
protect all potential evidence from being destroyed, erased/deleted, or modified. Such information includes, but is not limited to,
Electronically Stored Information (ESI). Please read these guidelines carefully and check with us with any questions you may have.
You have a duty to preserve evidence. O.C.G.A. §24-14-22 and Chapman v. Auto Owners Ins. Co., 220 Ga.App. 539 (1996) require
that you refrain from altering, destroying or concealing any evidence (whether in electronic or hard copy form) that may relate to issues
raised (or likely to be raised) in your case. Sanctions for destruction of potential evidence, even if unintentional, can be severe, such as
monetary fines, the Court prohibiting you from presenting certain evidence, or deciding issues without your input. The materials to be
preserved include, but are not limited to: (1) e-mail and attached files including stored, deleted, sent or received mail from any and all e-
mail accounts held in your name or to which you have or had access; (2) all information, records and data on, in or with regard to any
computer owned by you or to which you have or had access; (3) hard drives, flash drives, thumb drives, CDs, DVDs, virtual clouds, or
any other data storage programs, units or devices, as well as any online or wireless data storage accounts in your name or to which you
have or had access; (4) all information, records and data with regard to telephone usage, including, but not limited to, text messages;
and (5) all internet websites operated, accessed and/or used by you, and any associated accounts, including, but not limited to, any mail,
instant messaging functionality, images, video, audio, documents, browsing history or other content in any media format.
Change your passwords to all computers, cell phones/smartphones, tablets/iPads, email accounts, social media websites, financial
account websites, and merchant websites, to new, secure passwords that the opposing party will not be able to guess. But do not delete
anything from any of these.
Do not accept a computer, cell phone/smart phone, tablet/iPad as a gift, as it could have pre-installed spyware or keyloggers. Do not
leave any such devices unattended or lend them to anyone. Beware of opening e-greeting cards or suspicious attachments or website
links which could secretly install spyware on your device. Hardware keyloggers can be undetectable by security software, and may take
many forms such as USB devices, keyboard overlays, and innocent-looking plugs connected to computer cables. Spyware and
keyloggers on such devices is becoming a massive problem.
Do not use spyware or install any keyloggers or other such surveillance programs on any devices belonging to the other party, or
employ anyone else to do so, and do not attempt to guess any of their passwords to access anything of theirs that is password
protected.
Beware of GPS/location tracking services such as “find my iPhone” or cloud-based services which may show your location through
your phone or tablet, particularly if connected to a virtual cloud. You may be able to disable such services through settings, or you may
want to call you r cell phone service provider to have such services disabled.
Be careful of anything you do, write or post on any media or websites going forward (even Snapchat photos may be forensically
recoverable), but do not attempt to “clean up” your accounts such as Facebook. That is spoliation and can result in sanctions against
you. You can preserve your Facebook information with the “download my data” feature on their website. Do educate yourself about the
privacy settings and features on social media sites, before you do, write or post anything, think about what a Judge would think if they
eventually see it.
If you suffer a hardware failure, please let us know right away, so we may notify opposing counsel, and do not dispose of the
damaged hardware until you are specifically authorized to do so. This applies to cell phones, computers, hard drives, tablets/iPads,
iPods/music players, thumb/flash/portable drives, media storage devices, GPS devices, security systems, digital audio and/or video
recorders, etc. If you are uncertain about whether you need to preserve something, err on the side of caution and save it.
Our communications are protected by the attorney-client privilege. However, if you discuss our communications with a third party, or if
you forward any emails or communications from our law firm to any third party, you may effectively waive the attorney-client privilege
and our communications may then become subject to discovery by your spouse. Likewise, if you communicate with us using a device or
network owned or operated by your employer or any third person or on a public computer, or on a computer to which other family
members have access, there is also a risk of waiver of the attorney-client privilege. Please take care with your communications, and
refrain from disclosing our communications to any third party unless you discuss it with us first.
The law now requires that we make you aware of these responsibilities to preserve evidence as set forth above until the conclusion of
your case. The Courts take these responsibilities seriously, and it is important that you do too! Taking care to comply with them right
away can protect you from serious sanctions by the Court.
Received and Understood By: Notice Provided And Explained By:
__________________________ Warner, Bates, McGough, McGinnis & Portnoy
_____________ (Client Name)
__________________________ __________________________
Date Traci A. Weiss, Esq.
