Dr. Seuss, Cheese and Social Media, Part III: Ethical Issues Involving Attorneys and Their Judges

 

"I am the Judge. I speak for the laws!
I speak for the laws, for the laws have no tongues.
And I'm asking you, sir, at the top of my lungs,"
(He was very upset as he shouted and puffed)
"Stop friending me, lawyers!  Enough is enough!" 

Part One of this article discussed how an attorney's use of social media can lead to breaches of confidentiality, conflicts of interest, unintended relationships, and improper advertising.  Part Two of this article then discussed misrepresentations made to third parties on social media and violations of one's duty of candor to the court. 

Since all good things come in threes, we now launch into our final Part Three:  corresponding with a judge in a way that gives rise to the appearance of impropriety, and making inflammatory statements about lawyers or judges.

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E-Discovery: Cutting Costs with Predictive Coding

The cost of e-discovery is forcing good companies to settle bad cases—but not for long. If your litigation budget had ears, “predictive coding” would be music to them.

How it works

Predictive coding is a “technology-assisted classifying process” in which “a human reviewer codes documents the computer identifies (as responsive)—a tiny fraction of the entire collection. Then, using the results of the human review, the computer codes the remaining documents in the collection for responsiveness.” There are four phases to the predictive-coding process:

  • Phase 1: A senior lawyer chooses the responsive electronic documents based on his or her review of a sample of the electronic documents
  • Phase 2: Phase 1 is repeated with senior lawyers until the computer is sufficiently “trained” to apply their conclusions across a wide set of documents (or the whole document set)
  • Phase 3: The predictive coding software is deployed against the entire document set and will distinguish between relevant and non-relevant documents, or prioritize the documents on a scale of one to 100 (depending on the software you select)
  • Phase 4: The documents that are machine-coded as responsive are subjected to a final human quality review and produced to the opponent

How it saves your company money

Using predictive coding software replaces the once overcrowded rooms of contract attorneys who pored over millions of records and billed by the hour. Rather than hiring 15 $80-per-hour reviewers working 40 hours per week for three weeks for a total review cost of $144,000, your company could conduct the same review with three senior lawyers at $600 per hour for eight hours at a total labor cost of $9,600, saving $134,400 without the cost of using the software. Furthermore, the empirical data on predictive coding confirms “the levels of performance achieved by ... technology-assisted processes exceed those that would have been achieved by ... the law students and lawyers employed by professional document-review companies — had they conducted a manual review of the entire document collection.”

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Nine Points Impacting E-Discovery Costs

There was a time when state court civil disputes did not involve the risk of astronomical e-discovery costs. That time has passed. Just as e-discovery in federal courts reaches some semblance of uniformity, the fifty (very independent) states have begun to realize that discovery in the Digital Age will necessarily involve "staggering" amounts of electronically stored information (ESI).

Since 2003, 30 states have adopted rules or enacted statutes that specifically address ESI management, preservation and production in civil disputes. New York and seven other states have developed their own methods for managing e-discovery, while California (and 21 states like it) generally follows the Federal Rules of Civil Procedure. The remaining 20 states (e.g., Illinois) have yet to adopt any e-discovery rules, but most recognize "the increasing reliance on computer technology," and some explicitly (by judicial interpretation of existing discovery rules) obligate civil litigants to produce ESI as part of their state's existing discovery obligations.

Although all 50 states have somewhat different approaches to managing e-discovery, there are a few trends in how states treat e-discovery that impact costs.

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Dr. Seuss, Cheese and Social Media, Part II: Ethical Pitfalls, Pretexting and Duties of Candor

 Imagine the following eloquent cross-examination:

ATTORNEY SAM: Good morning, Witness. I am Sam. Do you like green eggs and ham?
WITNESS: I do not like them, Sam-I-am.
ATTORNEY SAM: Would you eat them in a house?
WITNESS: I would not eat them in a house.
ATTORNEY SAM: Would you eat them with a mouse?
WITNESS: I would not eat them with a mouse.
ATTORNEY SAM: Would you eat them here or there?
WITNESS: I would not eat them here or there. I would not eat them anywh --

Why the sudden break in testimony? Because last month Attorney Sam managed to get Witness to "friend" him on Facebook, and he is now holding up the fruits of that endeavor as Exhibit A -- a photograph posted on Witness's page in which he is . . . eating green eggs and ham.

Part One of this article discussed how an attorney's use of social media can lead to breaches of confidentiality, conflicts of interest, unintended relationships, and improper advertising. But as comprehensive as this list seems, additional ethical issues can rise out of an attorney's immersion in social media.  These problematic issues include misrepresentations made to third parties on social media and violations of one's duty of candor to the court.  

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Dr. Seuss, Cheese and Social Media: Ethical Pitfalls Impacting Attorneys and Their Clients

Should lawyers be able to move about as freely within social media as the rest of the population, despite the risk to themselves and their clients? Perhaps Dr. Seuss said it best in Horton Hears a Who, although the full verse ought to have gone something like this:

"A person’s a person, no matter how small."
And your lawyer’s a person as well, after all.
So Twitter and LinkedIn and Facebook's friend wall --
They aren’t just yours, but are his ports of call.

When engaging in social media, the last thing an attorney and his client have in mind is the almighty “E” word: ETHICS. But an attorney’s use of social media poses a multitude of ethical risks that impact that attorney, his law firm, and his client.  Of course, it is hardly feasible (and, the author of this blog humbly adds, hardly fair) to exclude attorneys from what has become the communicative oxygen of the twenty-first century. Nonetheless, attorneys must take more care than most individuals as to what they post online. Otherwise, they risk opening a Pandora’s box of ethical violations that impact themselves, their firms and their clients -- such as breaches of confidentiality, conflicts of interest, the creation of unintended relationships, and improper advertising. And those are only the obvious possibilities.

What are some of the ethical rules under the ABA Model Rule of Professional Conduct ("ABA MPC") that one’s attorney can commit on social media, that endanger a client’s case or information, among other things?

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The Ringmaster or the Clown? Dealing with the E-Discovery Elephant in the Room

It is rare to find one of those shared tenets that defy all cultural, geographic, and chronological boundaries -- some fundamental underpinning of life found everywhere from the days of the caveman to the modern age. One we can all agree on, however, is that a professional's worth is and always has been commensurate with his or her experience. The senior dragon slayer of King Arthur's round table received a shinier suit of armor than the new guy. The master caveman's time and worth rose above the apprentice's. And in present day law firm culture, the value of the Associate is often dwarfed by that of the Senior Partner in the cozy corner office.

Electronic discovery, however, has turned this fundamental dynamic on its head. In most areas of the law, change is effected in small increments, opinion by opinion and statute by statute. Sage senior lawyers add to their existing knowledge by keeping up on recent developments -- no fundamental change in thinking is required. Electronic discovery, however, has forced a radical, qualitative change in almost every aspect of how discovery is conducted. Heck, an entire Federal Rule of Civil Procedure was rewritten to account for it. And the dreaded "it" -- that virtual elephant in the room -- is everywhere. As Judge Shira Scheindlin of the Southern District of New York observed in an interview, "We used to say there's e-discovery as if it was a subset of all discovery. But now there's no other discovery."

This ever-expanding nature of e-discovery is carving out a unique dynamic in the three-ring circus that is the Law Firm and the in-house legal department. In short, the problem is that the two parts of the equation needed to master e-discovery (expertise in discovery law and procedure, and expertise in electronic media) are currently located in two separate circus rings: the Ringmaster's and the Clown's.
 

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The Wi$dom of Collaborative E-Discovery (Especially in Smaller Cases)

Sometimes it seems like it all comes down to money, doesn't it?  Especially now, so many of us are looking for ways to work - and litigate - smarter, leaner, and cheaper.  Fortunately, some of the finest legal minds are hard at work on solutions to costly e-discovery conundrums, and, luckily, many valuable resources are just a (free!) mouse-click away.

So much of what we know about the outlines of E-Discovery law comes from multi-million dollar, bet-the-company litigation between corporate behemoths.  But what about the everyday family law or small business disputes that are the bread and butter for most attorneys across the country?  How do you get the information you need and protect your client from sanctions without spending more on e-discovery than the case is worth?

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The "Wake-Up Call" Rings Twice: Blawgs Buzzing on the Importance of Thoughtful, Collaborative Search Protocol Design

In reviewing the E-Discovery blawgs this week, a recurring theme emerged:  the pitfalls and limitations of keyword searching, and the need for collaboration and cooperation between counsel to devise effective search protocols.

A number of the E-Discovery blawgs this week featured the ABA Journal's article on improving e-discovery search protocols: "In Search of the Perfect Search."  The thought-provoking article highlights the dismaying lack of progress in finding cost-effective ways to locate and retrieve relevant documents through keyword searching. Bottom line? The way we are doing it now is wrong. Although technology has advanced at a rapid clip over the past twenty years, it has not been able to overcome "the fundamental ambiguity of language": research shows that paralegals and attorneys using simple keyword searches on a group of documents find, on average, only twenty percent of the relevant documents. That is basically the same result research found in similar studies conducted twenty years ago. 

The answer? Using a combination of search methods and tools. The Text Retrieval Conference Legal Track is working on a process and protocol to improve the results of digital searches. According to the article, however, few E-Discovery vendors have participated in the project, perhaps reluctant to have the effectiveness of their own search technologies quantified. Early recommendations from the project on how to improve on the usual keyword search include:

 

  • Working with opposing counsel to identify the best search terms;
  • Negotiating proposed Boolean search strings;
  • Using sampling to see whether the search engines are really finding the relevant documents.
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Gone But Not Forgotten

In "Men in Black," Will Smith carries a tool that is the Holy Grail of every litigant with something to hide: a "neuralizer" that erases aliens and Tommy Lee Jones' acting from the memories of those unlucky enough to witness either.  The real genius is that the subject doesn't know they've been "neuralized"--not only is the crime gone, but so is the cover-up.

There are a number of products on the marketplace that attempt to do the same for hard drives.  Some are surprisingly straightforward about their goal: destroying incriminating evidence.  For example, with a name that might provoke the most mild mannered judge, Evidence Eliminator boasts on its website that "If you do not use Evidence Eliminator, ' your PC is a ticking time bomb, waiting to go off!' . . . Only with Evidence Eliminator can you get the protection you deserve, only then can you use your PC to explore the Internet with confidence."  The company drives the point home with a page entitled "Reasons to Buy," which recounts statistics on prison violence.  The thinly veiled message is that the product can destroy incriminating evidence, and spare its purchaser jail time or civil liability.

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Getting TIFFed Off: The Dangers of Not Going Native with ESI . . . Or, The Perils of Killing the Bunny

For a full understanding of the Great TIFF v. Native Debate and the dangers of choosing the wrong side, try this. Picture a bunny.

Why not? Spring is near, and Easter is only a month away. So, picture a bunny. You can cuddle it, watch its little nose twitch, listen to its heartbeat, even observe its behavior and follow it home. If you are one of those lucky creatures who speak bunny -- like computer programmers speak source code -- you can politely inquire where it's been, what it's seen and who it has spoken with.

Electronically-stored information (ESI) such as e-mails and spreadsheets, is like that living bunny. It exists in pure native form, possessing an exotic birthday suit from which can be gathered the hidden details known as metadata -- who authored the data, who sent and received it, the underlying formulas behind the numbers in an Excel spreadsheet, where files or e-mails were stored, who read or possessed them, when they were created, accessed, modified and saved. Such ESI produced by a party is fully searchable. Like the bunny, it can talk to your opponent, and tell them things.

But herein lies the nasty little secret: attorneys and their clients do not want the bunny to talk to their opponents. In fact, they would love to produce ESI in such a way that their opponents cannot communicate with the bunny. But in most cases, their opponents' requests for production specifically ask them to turn over the bunny. So what can they do?

Picture that bunny, dead. Whacked. A poor dead bunny, handed over to the other side. No pulse. No heartbeat. You can't follow a dead bunny home. You can't talk to it, and it certainly can't talk back. That dead bunny is a TIFF, or "Tagged Image File Format," like a PDF. When the bunny is snuffed and the electronic data "TIFFed" -- i.e., printed out in hard copy and then re-scanned -- it becomes dead and frozen, rather than dynamic and searchable. What you see is what you get. The hidden information, the ability to search millions of pages of text for smoking gun language, and to peek at its living history, is lost. And your opponent has no way to recreate it. There is no way for him to resuscitate that bunny. Sure, he can take a DNA test of the dead bunny: convert the tiny elements of TIFF images -- the individual letters, like the Ts, As, Gs and Cs of a double helix -- into searchable text format through optical character recognition ("OCR"). But OCR does not solve the main problem: identification of the lifeblood, the living metadata of the bunny's life history (the who, what, where, when and why) that does not appear in the TIFFs.

Still, what's wrong with this? Why not always produce ESI in TIFF rather than native metadata form? Why not always produce a dead bunny? Isn't this a perfect solution? Unfortunately, no -- as one law firm, two lawyers, and their very unhappy client just learned in Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., No. 6:07-cv-222-Orl-35 KRS (M.D. Fla. Mar. 4, 2009). In short, Lexington wanted a live bunny and requested all ESI in native format without any alteration or deletion of metadata. Its opponent Bray & Gillespie (B&G) produced a very dead bunny, and was called out by the court for doing so. And that was before B&G's counsel began lying about who killed the bunny and when.

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Free Data Mapping Webinar -- March 11, 2009

Join us on Wednesday, March 11, 2009, for the first of a series of three webinars designed to offer practical advice to organizations attempting to get a handle on their ESI.  The first webinar in the series, titled The ESI Data Map:  What Inside Counsel and Records Managers Need to Know, will run for one hour and break down the benefits of creating a data map of your organization's IT infrastructure.  John Collins, the Vice President of Consulting for The Ingersoll Firm, will lead the webinar with commentary from yours truly, Kelly Twigger of Quarles' Records Retention and E-Discovery Team, and  Lisa Berry-Tayman of Kahn Consulting.  I will discuss the benefits of utilizing a data map in an over all strategy to prepare for preserving, collecting, reviewing and producing electronic information as a way to identify where ESI lives in an organization's infrastructure and how best to consider implementing changes to reduce costs in storage and producing ESI.   Lisa will offer insights into how a data map fits into an organization's records management program and the importance of communication among multiple groups within the organization for successful implementation of any records program.  The webinar is free.  Click here to register. 

Need a Reason to Hire E-discovery Counsel? Here Are $6 Million.

Not having knowledgeable e-discovery counsel can be costly -- a lesson the Office of Federal Housing Enterprise Oversight (OFHEO) found out the hard way.  Failure to devise a comprehensive plan for responding to a third party subpoena seeking ESI ended up costing the agency over $6 million to comply with a court order, more than 9% of the agency's entire annual budget. In a rare Court of Appeals decision, In re Fannie Mae Securities Litigation, 552 F.3d 814 (D.C. Cir. January 6, 2009), the D.C. Court of Appeals affirmed the district court's order holding the OFHEO in contempt for failing to comply with a discovery deadline to which it agreed.  But it's a bit more complicated than that.

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The Reality of Cost-Shifting

The reality of cost-shifting is that it is not always available to a responding party. In order to manage risk associated with the cost of electronic discovery, legal counsel should be aware of circumstances where responding parties have received the benefit of a cost-shifting analysis and conversely, where it has been denied. 

Courts do not want responding parties to pay for a plaintiff's fishing expedition. Therefore, courts may shift costs to the requesting party as an incentive to narrowly tailor the discovery request where there is a low likelihood that discovery will produce relevant evidence. Delta Financial Corp. v. Morrison, 13 Misc. 3d 604, 611-12, 819 N.Y.S.2d 908 (Sup 2006) (ordering requesting party to pay expenses of searching restored backup tapes for e-mail and electronic documents because the Court was "not entirely convinced that relevant and responsive documents would be found").

Courts employ cost shifting to protect the producing party from undue burden. Therefore, courts weigh the benefit of discovery versus the burden under the proportionality test of Rule 26(b)(2)(C). Thus, even where the plaintiff is not fishing and the evidence will be beneficial to disposing of the issues, courts may limit discovery or employ cost-shifting if the burden to produce the requested data is disproportionately higher than the benefit. Christian v. Central Record Service, 2007 WL 3094513 (W.D. Ark. 2007) (relevant evidence was precluded from discovery when the expense of discovery outweighed the benefit).       

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Use Caution When Doing Your Spring Cleaning!

 

Although we're in the middle of winter, and the Midwest had -40 degree wind chills last week, this is the time for you to think about spring cleaning. I don't mean scrubbing floors or washing windows. Now is the time to develop a record retention policy and a litigation hold policy and then begin appropriately "cleaning house."  Micron Technology, Inc. v. Rambus, Inc., 2009 WL 54887 (D. Del. Jan. 9, 2009) shows us why it is so very important to have a litigation hold policy in place before starting that spring cleaning.

Rambus was a microchip technology company that became concerned about possible patent infringements by microchip manufacturers. It sought counsel regarding possible litigation, and counsel developed a litigation strategy. During this time, Rambus also designed and implemented a record retention policy, then held a series of "Shred Days" where many expired records were destroyed.

Micron sought a declaratory judgment from the court that its designs did not infringe on Rambus' patent.  The court held a separate trial on whether Rambus' wholesale destruction of documents pursuant to its document retention policy constituted spoliation of evidence and the appropriate sanction to be imposed on Rambus if in fact spoliation had occurred.  

In analyzing the spoliation issue, the court found that Rambus had a duty to preserve its documents once litigation became reasonably foreseeable.  According to the court,

Rambus knew or should have known, that a general implementation of the policy was inappropriate because the documents destroyed would become material at some point in the future.  Therefore, a duty to preserve potentially relevant information arose in December 1998 and any documents purged from that time forward are deemed to have been intentionally destroyed, i.e. destroyed in bad faith. 

Because Rambus' bad faith was so clear and convincing and because Rambus destroyed innumerable documents relating to all aspects of Rambus' business, the court determined that the very integrity of the litigation process had been impugned.  The court found that neither adverse jury instructions nor the preclusion of evidence nor the imposition of fees and costs on Rambus could cure the damage done by the massive document destruction.  Instead, the court delivered the ultimate sanction of all, it declared Rambus' patents involved in the lawsuit unenforceable. 

The moral of the story?  Companies must exercise extreme caution in implementing document retention policies and must strongly consider whether a "litigation hold" needs to be placed on some documents, even in cases where litigation has not been officially commenced yet.  Consequently, when you get that itch to do some spring cleaning, plan ahead so that you can protect your intellectual property and your business.

Making A Records Retention Policy and Checking It Twice

 

'Twas two weeks before Christmas and a few things were stirring in Seneca County, Ohio. The Big Guy in the red suit wasn't the only one deciding who has been naughty or nice. On December 9, the Ohio Supreme Court ruled in a 7-0 decision (State ex rel. Toledo Blade Co. v. Seneca County Board of Commissioners, 2008 WL 5157133, Dec. 10, 2008) that the Seneca County Board of Commissioners had been naughty and compelled them to make reasonable efforts to recover and provide the Toledo Blade newspaper with emails that had been deleted in violation of the County's records retention policy and disposition schedule.

The fact that these emails had been deleted did not relieve the County from its obligation to produce this information because deleted computer files are still discoverable. Many times this information is recovered by a forensic analysis of the computer, which can be a very costly process. The County’s failure to maintain the requested emails in accordance with the applicable schedule for records retention and disposition was one of the factors cited by the Court in determining to impose the expense of the forensic recovery of the deleted emails on the County.

Much like Santa's list, records retention policies should be rechecked to ensure compliance.

 

 

Is E-Discovery Eliminating the Benefits of Arbitration?

The broad scope of Federal Rule of Civil Procedure 26, coupled with electronic discovery and aggressive trial counsel, have increased litigation costs exponentially. (See Arbitration's E-Discovery Conundrum, by Thomas J. Aldrich). As a result, corporations and their legal counsel have recently turned to arbitration in an attempt to escape the huge expansion of document discovery in federal civil litigation. Id. However, as litigation discovery techniques used in federal court trickle down to the arbitration process, the benefits of arbitration - cost-efficiency and speed - have all but disappeared. Id. In an effort to preserve the benefits of arbitration, while balancing the need to discover documents with the cost and burden involved with producing them, many arbitral institutions have developed comprehensive guidelines for dealing with discovery and resolving disputes. Id. In his article entitled "Arbitration's E-Discovery Conundrum", Thomas J. Aldrich provides a rundown of the discovery guidelines propounded by arbitral institutions in an effort to "stem the tide of runaway discovery in arbitration." Id.  Read on to see a summary of his findings.

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2008 E-Discovery Year In Review

It's that time of the year again .... chilly temperatures, frenzied shopping, offices full of high-calorie treats, and, my personal favorite, year-end "year in review" and "top" lists.  Kroll Ontrack contributes an interesting early entry to the annual roll with its descriptively-titled, "Year In Review: Courts Unsympathetic to Electronic Discovery Ignorance or Misconduct"

Kroll's sobering survey of the approximately 138 reported opinions on electronic discovery issue leaves something rather more ominous than visions of sugarplums dancing in one's head, revealing that over half of those opinions addressed sanctions, data production, or preservation and spoliation issues, with a whopping 25% involving some type of court-ordered sanctions for e-discovery issues.  Kroll also offers its "top five" 2008 cases demonstrating both the breadth of material available through e-discovery and courts' growing intolerance for e-discovery mishaps:

  • In Flagg v. City of Detroit, 2008 WL 3895470 (E.D. Mich. Aug. 22, 2008), U.S. District Judge Gerald Rosen rejected the city defendants' argument that the court's previous order - compelling the production of text messages sent between City employees on city-issued text messaging devices - violated the Stored Communications Act ("SCA").  Although the SCA does not authorize a service provider to disclose electronic communications in response to a subpoena or court order, Judge Rosen found that the law does not override a defendant's obligation under Federal Rule of Civil Procedure 34 to produce relevant, nonprivileged electronic communications in their possession, custody or control.  Rosen reasoned that defendants were both able and obligated to give their consent to SkyTel, the service provider that stored the text messages, to retrieve those messages, which the city must then produce. 
  • U.S Magistrate Judge Paul Grimm contributes once again to the body of e-discovery casleaw with Victor Stanley, Inc. v. Creative Pipe, Inc., 2008 WL 2221841 (D. Md. May 29, 2008), and sheds some light on the "reasonable precautions" parties must take to prevent inadvertent disclosure.  Judge Grimm found that defendants had waived the attorney-client and work product privileges as to 165 electronic documents inadvertently produced in discovery by failing to take several measures that could have prevented the waiver, including a clawback agreement the disclosing party voluntarily abandoned and compliance with The Sedona Conference® best practices.
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10 Things You Should Never Put in an E-mail

Want a hint as to the types of phrases found in emails that are going to catch the eye of a lawyer looking for a smoking gun in a lawsuit?

Roger Mathus of Death by Email quotes Elizabeth Charnock, CEO of Cataphora, on 10 things you should probably never write in an e-mail:

  1. “I could get into trouble for telling you this, but…”
  2. “Delete this email immediately.”
  3. “I really shouldn’t put this in writing.”
  4. “Don’t tell So-and-So.” Or, “Don’t send this to So-and-So.”
  5. “She/He/They will never find out.”
  6. “We’re going to do this differently than normal.”
  7. “I don’t think I am supposed to know this, but…”
  8. “I don’t want to discuss this in e-mail. Please give me a call.”
  9. “Don’t ask. You don’t want to know.”
  10. “Is this actually legal?”

Ms. Charnock developed her "top ten list" based on e-mails and documents her company has analyzed for clients.

After reviewing Ms. Charnock's list, Matus advises, "If you find yourself typing one of these phrases, perhaps you should delete the entire e-mail."  In other words, when in doubt, think before you press that "send" button.

Do you have other favorites?  Feel free to share them with us in the Comments.

Predicting the Course of E-Discovery in 2009

As the new year approaches, many are wondering what e-discovery will look like in 2009.  The question is now generating some interesting discussion in the blogosphere.  I think Ralph Losey hit the key issue on the head this last week in a comment posted to EDD Update.  The thrust of the post is that litigation will be on the rise next year, but that corporate budgets will be tighter, leading everyone to look for ways to make the e-discovery process more efficient and cost-effective.  

In discussing the effects that leaner budgets will have on the e-discovery process, Losey makes, among others, two important predictions.  The first is that we will see "an explosion of metrics and proportionality arguments to drastically reduce the amount of ESI to be reviewed and produced."  The second is that in-house counsel may "finally become selective and pick new lawyers that get it, instead of their old stand-byes that don't."  On the latter point, he further offers his "doubt [that] the budget will permit the cronyism system to continue." 

I fully agree with Losey's prediction that companies will have to rethink their e-discovery choices, but I think there is more to be said about how to make smart decisions when it comes to e-discovery.  To be sure, every company - and outside counsel - should already be looking at ways to achieve measurable efficiencies when it comes to e-discovery.  And certainly, companies will be taking a harder look at the outside counsel they hire to do this work.  As Losey suggests, some firms "get it," while others don't.  A law firm with experience can really make the e-discovery process much more efficient, and much less expensive.  For this reason, we're already seeing many companies move towards hiring national e-discovery counsel.  I am confident that these trends will continue, especially in a tight economic market. 

I am concerned, however, that tighter budgets may lead to the slowing, or even the reversal of another very important trend - that is, the trend towards taking a proactive approach to e-discovery issues.  A quick example illustrates the point.  In recent years, many companies have realized the benefit of creating a plan for managing, and responding to discovery requests that call for their electronic data.  As part of that process, companies map their networks, so they know where their data is, and develop protocols for responding to requests for electronic discovery.  As budgets tighten, some companies may not be willing to pay the up-front cost of developing these data management plans.  In doing so, companies who are trying to save money may be making a costly mistake.  The worst time to begin the process of understanding your network - where you have data, how it is stored, how to retrieve it efficiently - is when you are in the middle of litigation and have to respond to discovery requests.  Litigation moves too quickly and gathering electronic data can be a time consuming process.  In the rush to comply with demands for electronic discovery, those who have not planned ahead will not be able to think through their response as thoroughly, and will almost certainly see inefficiencies, work that has to be redone, or costly errors, as a result. 

Making the right e-discovery decision will often mean different things for different companies.  What is universal, however, is that the best decisions are usually made by those companies that have the best advice from those who really understand the e-discovery process.  As Losey suggests in his post, those who understand the process will be the ones who have the competitive edge.  That will be particularly true in the tight economy of 2009.

Obama To Give Up His Blackberry. Should You?

The New York Times has reported that President-elect Barack Obama will likely give up his Blackberry when he takes office in January.  According to the Times, Mr. Obama - like legions of other professionals - is all but addicted to his Blackberry.  Yet he is giving his up.  So should you be thinking about trading yours in too?  Going Luddite, if you will? 

You may be stretching your thumbs right now, getting ready to send a lengthy and exasperated comment from your Blackberry.  So I'll just start out by saying the short answer is no, you don't need to give up your Blackberry; and no one will try to take it from you.  However, the Times article about Mr. Obama and his reluctant parting of ways with his Blackberry reminds us that we all need to be wary of how we use ours. 

As the Times article explains, Mr. Obama will likely give up his Blackberry for two reasons.  The first is security; anything can be hacked.  The second is "the Presidential Records Act, which puts his correspondence in the official record and ultimately up for public review, and the threat of subpoenas."  So, '[f]or all the perquisites and power afforded the president, the chief executive of the United States is essentially deprived by law and by culture of some of the very tools that other chief executives depend on to survive and to thrive." 

Now, we everyday professionals - who really are that dependent upon our Blackberrys - do not have to worry about the Presidential Records Act subjecting all of our emails to public scrutiny.  That is true.  However, the data on everyone's Blackberry is subject to discovery in civil litigation and regulatory and criminal investigations.  So many seem to forget this, or just don't think about it.  These days, the smoking guns that win and lose cases, or make them for the government, are usually found in electronic correspondence.  Email is just such a casual means of communicating; particularly when sent on a Blackberry.  Most folks aren't thinking about the fact that they are creating a record when they fire off an email.  And if you think lawyers can't get the information you have on your Blackberry, well, "yes we can."  So if you're going to continue using your Blackberry, and you know you are, the tip for the day is to be smart about it.  Some of the best advice I received in law school was from my Evidence professor, Daniel Blinka.  He said, whenever you send a letter to another party, think about whether you'd want to see that letter appear at trial with a sticker on it that says "Exhibit A."  In today's high-tech world, I would take that a step further and say you should imagine that exhibit sticker on everything you write.  And that goes double for your emails, since that's where the good lawyers will look first.

My Boss May Own My Facebook Page !?

Social networking websites have taken the world by storm.  On MySpace and Facebook, users lovingly chronicle the intimate details of their lives, post their current relationship status and feelings, provide spontaneous opinions, and upload off-the-cuff photographs.  Even the more professional networking site LinkedIn, is now trying to become more social by adding a blog application.  Unfortunately, users often post without considering the trail of evidential bread crumbs they leave in their wake.  Just last week, Virgin Atlantic Airways fired 13 members of a cabin crew after they allegedly posted inappropriate comments on Facebook.  And today, investigators visit these sites as a matter of course when looking into an individual for purposes of employment, college admission, background checks for criminal activity, and so on.

This growing use of social network information raises two important questions for the corporate world in this new age of electronic discovery:

1. Are social networking sites accessed using an employer's computer, fair game when it comes to electronic discovery and document production?

2. If social networking pages are produced as part of electronic discovery, would this information then be admissible in court?

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Offshoring document review?

As many of us are all-too-painfully aware, technology has been a mixed blessing to both business and the law.  The ability to generate and store information electronically has allowed us to be more productive, but has increased exponentially the amount and types of documents and data we produce and store. 

In turn, this proliferation of ESI has dramatically changed the nature and the cost of litigation, and, in particular, the nature and cost of discovery.  In large-scale civil litigation, the lion's share of litigation costs stems from first-level document review:  that initial review, usually conducted by junior attorneys or paralegals, to analyze documents for responsiveness, confidentiality, privilege, and to identify and flag key or "hot" documents.   

When you're facing millions upon millions of pages of ESI that need first-level document review, do you (1) staff it with lawyers from your firm or from outside counsel, (2) staff it with a mix of lawyers and paralegals from your firm or outside counsel, (3) hire temporary / contract attorneys and/or paralegals to staff the review, or (4) outsource to a U.S. firm specializing in document review?  Now, yet another option grows in popularity:  "offshoring" or "nearsourcing" your first-level ESI review to lawyers in another country. 

Offshoring your document review to another country - like Canada, India, Israel or South Africa - has its benefits, as this article outlines, but it also poses serious risks.  Some issues to consider when contemplating offshoring all or part of your first-level review:

  • How do the laws of the country to which you are offshoring treat attorney-client privilege, work product privilege, privacy, confidentiality, and ethical issues?
  • What are your rights and recourse in the case of data theft or misappropriation?
  • Are language issues are surmountable?
  • What employee screening and training processes employed by the outside vendor to insure that the most competent, ethical individuals are working on your project?
  • What quality control measures does the outside vendor employ to insure that documents are being coded correctly and key documents are not being missed?
  • What processes can you put into place to quality control the work from your end?
  • What security measures does the outside vendor employ to prevent misappropriation?
  • What type of professional liability insurance does the outside vendor retain?
  • Can you "audition" the outside vendor first, by quality checking their review of a previously-reviewed set of documents?
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Does Your Litigation Expert "Write-Over?"

If you are not already asking this question of your consulting or testifying expert, you should start.  And the answer in every case should be "no."  Many people, including experts, make revisions into an original draft document, thereby "writing over" the initial draft.  Once a draft has been written  over, the electronic version of the initial draft has effectively been destroyed.  However, electronic preservation rules apply to draft expert reports and communications, and attorneys have an ethical duty to ensure that these electronic documents are not destroyed.   

                                                                         

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Rule 502: Curbing the Cost of E-Discovery

Although the proposed Federal Rules of Evidence 502 aims at reducing the cost of e-discovery, businesses can also play a critical role in managing this process.

In an article entitled "Preparation and Communication are Key to Managing E-Discovery Costs," (published in 25 No. 22 Andrews Toxic Torts Litigation Reporter 3, December 5, 2007), Richard Friedman of Dreier LLP explains the various ways businesses may prepare to produce electronically stored information (ESI) and thereby controlling both their costs and reducing the potential for expensive errors. Some pointers--

  • Adopt uniform procedures makes e-discovery a more manageable process with more predictable costs.
  • Through communication and negotiation, counsels can reach agreements on the scope of electronic discovery as early as possible resulting in significant cost savings for both sides, by reducing litigation costs as well as the volume of ESI that must be reviewed.
  • Identify the information that the organization collects and generates and the means by which it is stored. Organizations that lack adequate knowledge of both their inventory of information and their information technology systems risk seriously disadvantaging themselves at the initial Rule 16(b) scheduling conference and subsequent pretrial conferences.
  • Limit the kinds of information that are generated on a daily basis to reduce their potential exposure or to control their storage and retrieval costs, organizations may want to prevent certain kinds of information from being generated.
  • Initiate and enforce litigation holds to preserve relevant information in the event of a lawsuit. This step is necessary to prevent potentially responsive information from being routinely destroyed or deleted when there is a reasonable expectation of imminent litigation and certainly after litigation is pending.
  • Take advantage of techniques and technology that will reduce the universe of ESI that needs to be reviewed, as well as what needs to be produced in litigation.

While it remains to be seen whether Rule 502 will be adopted, businesses and law firms alike can certainly follow Mr. Friedman's advice on e-discovery cost control.

The Money Pit

In their book "Evaluating the Electronic Discovery Capabilities of Outside Law Firms: A Model Request for Information and Analysis," authors Jeffrey Ritter (a recipient of the American Bar Association’s 2004 Cyberspace Law Excellence Award) and Karen Worstell (Chief Information Securty Officer at Microsoft) assert that the greatest economic risk companies face with electronic discovery is choosing the wrong law firm. Conversely, they explain how law firms can utilize the Model RFI (Request for Information) to assess electronic discovery readiness by evaluating their resources, services and tools to better serve their clients. Continue Reading...

The Five (or Six) Steps of Electronic Discovery

When a client is hit with a request for electronically-stored information, it is useful to think globally about what has been set in motion--a discovery process that will extent over some period of time and encompass some universe of information.  There are five major steps that the client will need to be prepared for: Continue Reading...

E-discovery requests automatically unduly burdensome?

This really happened recently.  I was having a Rule 26(f) conference and, as I am supposed to, I said the words (gasp) e-discovery.  The response?  The response was to suggest that they were already contemplating that I would be asking for far more than what is reasonably necessary and that they already anticipated there would be problems.

So they were objecting before the discovery was even served at the mere mention of the word "e-discovery"?   Do they already have the response to my first motion to compel drafted? (Perhaps I should serve such a motion to compel with the requests and streamline the whole process).

No doubt this is the strategy many will employ, but believe it or not, in some cases, the issues are fairly discreet, the list of players reasonably short, and e-discovery is not that hard.  Let's all remember to object in good faith.

Electronic Documents--Don't Trust That Date

Dates can be crucial in litigation. Cases are won or lost on whether the right things happened at the right time. Accordingly, we often use documents to construct our chronologies early in the case and move for summary judgment. But dates on electronically stored documents may not always be what they seem. For example, at first glance, one may assume that a date on an electronically stored document is the creation date or distribution date. Maybe its far from either.

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