By Robert Wenzel
During the course of any lawsuit, one of the most important phases is the discovery process. Gathering and requesting evidence from the other side allows an attorney to build their client’s case. Getting information from the opposing party also permits an attorney to determine if the allegations in the complaint are valid or not.
However, an issue that may arise during the discovery process is when one side illegally obtains evidence for the lawsuit. At the same time, it can be difficult to determine when or even if the illegal evidence may be used during the case.
Illegally obtained evidence is evidence that an attorney gathers in an illegal manner. Some examples of how a lawyer may procure illegal evidence includes but is not limited to illegally tape recording a conversation; stealing private, confidential data and documents; or taking additional documents from an office other than what is requested on a subpoena notice.
In addition, an attorney is strictly prohibited from retaining confidential records that an employer may take from an opposing lawyer’s files and provided to the attorney for potential use against the employer in litigation.
At the same time, one of the ethical considerations that a lawyer needs to take into account during the discovery process is their duty to uphold the law. A lawyer is not allowed to encourage or tell an individual (whether a client or a third party individual) to take evidence or information in an illegal manner. Failure to do so can result in potential discipline for an attorney.
If a situation arises where evidence is obtained in an illegal manner, there are several things that would happen. To begin with, the seized information would be returned to its original party. This includes any copies that were made of the illegal evidence. Furthermore, the attorney would not be allowed to use the illegal evidence in trial. Getting evidence illegally may also cause friction between both sides or result in negative publicity for the party.
There are many ethical considerations to take into account when determining how to get evidence. As stated above, an attorney may be disciplined if they obtain evidence in an illegal fashion. In addition, the credibility of their party and case may be put into doubt if they chose to locate evidence in an illegal manner. The opposing lawyer may also be less willing to provide genuine documents to an attorney because they do not know what could happen to the discovery that is provided.
When someone is not sure about how to get discovery or if they are concerned about illegally obtaining evidence, it can be useful to speak with an experienced business attorney. A lawyer could explain the correct process for getting discovery information. Also, the attorney may be able to explain what methods may be considered illegal or cause potential problems for the individuals. Lastly, a lawyer can provide insight into any ethical considerations that may arise during the discovery process, even if the evidence is requested and received in a legal fashion.