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“Big Brother” Is Still Watching – Electronic Surveillance Records Becoming Ever More Important in Litigation

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Electronic surveillance has become a nearly unavoidable fact of life.  When you consider an average person’s average day, it is likely that he or she has their activities recorded electronically several times per hour between the time they leave for work and the time they return home.  Chances are, their activities are subjected to being recorded even after they are in the “privacy” of their own dwelling.

When you stopped at the gas station to fuel your car, or a fast-food drive-through to pick a breakfast on the go, there is a record kept.  You are likely videotaped, and if you use a credit card, there will a receipt with an electronic record.  It is not uncommon to hear on the evening news that a crook was tracked down because he used his credit card at a gas station or ATM card at a bank.

When you log onto your computer at work, it is likely that your employer has the ability to review your activities.  If you think you snuck in that game of solitaire without anyone knowing, you are probably wrong!  Your E-mail also leaves an electronic record, both on your machine, and of course with whoever you send it to.  E-mails have become a staple of employment and divorce cases, and factor heavily in many other forms of civil litigation as well.

Many people seem to forget that E-mails (as well as text messages and other forms of electronic communication) are preserved for posterity, and simply type out their stream of consciousness.  Doing so is a terrible mistake, and it is not uncommon for such mistakes to decide the outcome of a civil case.

It is just as common for people to forget that their physical actions are often video-recorded when in public, at the workplace, or even in certain private situations.  Keep an eye on Douglas, Leonard & Garvey’s website for cases involving video surveillance right here in New Hampshire.  They are sure to drive home the point of how important and damning video evidence can be.  Douglas, Leonard & Garvey has also been involved in cases where phone recordings (usually in the form of 911 calls, but also voice mail messages) have played decisive roles in the outcome of the litigation.

During your commute to and from work, your comings and goings are recorded by electronic toll devices like EZ-Pass, and even your car keeps a record of how you drive, which can be downloaded if you get in an accident.  Even your home computer keeps a record of your web searches and other activities, which can be subjected to a forensic search if necessary in a civil or criminal case.

The moral of the story is to ask yourself this question on a regular basis:  “How would my next decision look, sound, or read on a video, audio, or other electronic records?”  If the answer is “not good,” then reconsider doing it, because it is just as likely as not that whatever it is you are doing, there will be an electronic record.