Will the ABA Ethics Rules Get a Technological Upgrade?

With the American Bar Association's House of Delegates meeting today and tomorrow at the Hyatt Regency Chicago, six resolutions from the ABA Commission on Ethics 20/20 proposing changes to the Model Rules of Professional Conduct are expected to be put to vote: "Technology & Confidentiality," "Technology & Client Development," "Outsourcing," "Practice Pending Admission," "Admission by Motion," Model Rule 1.6 (Detection of Conflicts of Interest)."

Michael Arkfeld and Stephanie Loquvam in "Are Proposed Changes to ABA Ethics Rules Too Little, Too Late?" turn their attention to the resolutions, and specifically to suggested changes in the comments to the model rules that bring a lawyer's technological competence to bear upon his or her competent representation of a client.

In Comment 6 to Model Rule 1.1, the commission proposes adding the phrase "including the benefits and risks associated with technology" to a lawyer's responisiblity to keep current with changes in the law and its practice. This is a "game changer," according to Arkfeld and Loquvam, requiring that lawyers firmly understand how electronically stored information is created, stored, and retrieved.

For a better grasp on how these changes might affect the practice of law -- and what benefits and risks technology brings to the legal industry -- read the article on LTN online.

Image by Daniel Hertzberg

Decisions, Decisions: EDD Cases in 2011

"Case law has rapidly evolved from the humble pronouncements of just a few technology-savvy federal judges," observes Littler Mendelson shareholder Cecil Lynn III, looking back at e-discovery opinions in 2011

Francisco v. Verizon South, Inc. and Race Tires America, Inc. v. Hoosier Racing Tire Corp. are among a rising number or opinions that address reimbursing the prevailing party's e-discovery costs. Thermal Design, Inc. v. Guardian Building Products, Inc. from the Eastern District of Wisconsin demonstrates judges stressing the need to move away from broad discovery demands towards targeted, more proportional requests.

The recently updated Pippins v. KPMG LLP raised the specter of disproportionate preservation demands and the worry that Southern District of New York Magistrate Judge James Cott's (and now District Court Judge Colleen McMahon's) decision might be misapplied. Other opinions addressed sanctions in the face of egregious misconduct, the production of metadata, and social media discovery.

For the full rundown, read Lynn's article, "The View From the Bench: Opinions on E-Discovery in 2011."

How Over-Preservation Starts and How to Stop It

"Let's keep it anyway, just to be safe." According to Craig Ball, this simple but mistaken mantra for lawyers is a password to open the door to over-preservation.

Looking at email preservation, Ball details how understanding the mechanics of the process can jump-start proportionality in e-discovery before parties ever enter a courtroom. Ball looks at several options parties take when preserving email — from doing nothing and relying on message journaling or archiving systems to custodial-directed holds to "grabbing all mail" in one fell swoop — and weighs their attendant risks, benefits, and potential costs.

What's your firm's approach to email preservation? If your answer is "I don't know," read this month's LTN "Ball in Your Court" column, "What Causes Lawyers to Over-Preserve?" to persuade you to change your response.

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Compare & Contrast: Self Collection Tools

In the second of two "Compare & Contrast" columns in Law Technology News magazine, about self-collection tools, Sean Doherty reviews five web-based offerings.

Read the story here.

See the chart here.

Image credit: Clipart.com

The Elephant in the Patent Courtroom

Mark Michels says efforts to streamline preservation in patent cases is a good start, but much more is needed. Read the story here.

 

Image: Stephen Hayes

Into the Breach

Corporate Counsel must carefully monitor data security breaches and take steps to protect their company's data, say Goldberg Segalla's Soo-young Chang & Daniel Gerber. Read more here.

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Reset to Neutral

Sutherland's Robert Owen is among the defense lawyers who are chafing about "overburdensome" and vague preservation requirements. In December's Law Technology News magazine, "Reset to Neutral," Owen argues for five new preservation rules that would simplify and clarify legal hold triggers -- and, he argues, reduce skyrocketing costs for corporate defendants.

Read it here.

Image: Monica Bay

What Lurks Within (It's time to trash legacy data!)

Anne Kershaw offers our December print issue's cover story, "What Lurks Within" detailing why it's crucial to establish and enforce document retention programs that destroy "legacy" data not protected by legal holds.

"Legacy data (backup tapes, file shares, PSTs, and other storage media) when kept indefinitely has no value or purpose. But it can create expensive havoc and costs that can be avoided if the data is properly managed, and destroyed when business and legal retention requirements expire," she writes.

Read the full story here.

The Tyranny of the Outlier

In his December column in Law Technology News, Craig Ball addresses over-production demands and how to combat them.

"Cooperation in e-discovery doesn't mean bowing to your opponent's demands for over-preservation. Instead, cooperation entails communicating relevant, reliable and specific information about systems, sources and forms to enable the other side to make responsible preservation demands … even if they won't do so."

Read the article here.

P.S. Today is the fifth "birthday" of the amended  EDD federal rules. Blow out the candles with Craig Ball here.

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Show No Fear

In June's Law Technology News, Craig Ball channels Mendelsohn's Elijah, singing  "Be Not Afraid."

Ball expounds on the single greatest problem posed by electronically stored information -- and it's not data volume or complexity. It's the reluctance of lawyers to exert the time and effort required to understand ESI.

Cecil Lynn: Back to the Future

It's been three years now since the electronic data discovery rules were added to the Federal Rules of Civil Procedure, and the number of reported cases involving electronically stored information has skyrocketed. But some lawyers still "simply do not anticipate (or woefully underestimate) issues related to ESI," says Cecil Lynn, of counsel to Ryley Carlock and Applewhite.

In "Back to the Future" in the January issue of Law Technology News, Lynn chronicles key 2009 rulings, finding that most of them are reiterating established principles. Lynn looks at everything from the increasing clarion for "cooperation," and issues around form of production, to failure to preserve, sanctions, discovery abuse, and more. It's part of our EDD Showcase.

Want more? Check out our Law Technology Now podcast, where Cecil Lynn joins me as a guest to further explore the 2009 EDD rulings -- with a special bonus: a cameo appearance by ALM's Henry Dicker, who offers a sneak preview of LegalTech New York.

Ball in Your Court: "EDD Bill of Rights"

In January's Ball in Your Court column, Craig Ball argues that it's time for a "Bill of Rights" for requesting parties who seek electronically stored information from their opponents. Requesting parties, he insists, have rights -- and duties -- during litigation.

Among the rights, says Ball, an Austin, Texas-based attorney and forensics consultant, is that ESI be produced in the format in which it is kept in the usual course of business; and that the producer clearly and specifically identify any intentional alteration of ESI.

Among the duties: an obligation to anticipate the nature, form, and volume of the ESI under scrutiny, and tailor requests to minimize burden and cost of securing the data. Read more in the current issue of Law Technology News.

Craig and I will be speaking Thursday (Jan. 21) at the New York City chapter meeting of Women in E-Discovery. It will be held at noon, at Credit Suisse, 11 Madison Ave., floor 2B, in the Club room.

To RSVP please visit newyorkcity@womeinediscovery.com. We hope to see you there!

The ESIs of Texas

Craig Ball's November column:

My home state of Texas was the first to enact a discovery rule dealing with electronically stored information. Years before the federal rules amendments, and in four simple sentences, Rule 196.4 addressed a litigant's right to discover ESI, the scope of e-discovery, forms of production and cost shifting. The rule was either so completely successful or so utterly ignored that it wasn't cited in a published decision for nearly a decade.

So, when the Texas Supreme Court — the state's highest tribunal — issued its first e-discovery opinion, I listened to oral arguments. In re: Weekley Homes, 52 Tex. Sup. Ct. J. 1231 (2009), concerned a litigant's right to directly access an opponent's storage media. The plaintiff wanted to run 21 search terms against the hard drives of four of defendant's employees in an effort to find deleted e-mails from 2004. I eagerly anticipated insightful arguments by advocates who grasped the important technical and legal issues afoot, but what I heard would make a hearse horse snicker. Judge for yourself by listening to the arguments at http://tinyurl.com/weekleyhomes.

Continue reading here

Jolly Roger Justice

By Craig Ball

It's fitting that my friend (and author/blogger) Ralph Losey, hails from Orlando — the House of the Mouse — because reading his posts on EDD Update (www.eddupdate.com) is like a ride on one of the really good Disney attractions once called "E-ticket" rides.

Losey's animated prose takes wonderful twists and turns,punctuated by delightfully silly visuals — and all steeped in solid American values. I always glean something good from Ralph's scholarship, even if only a different, well-argued point of view.

Losey and I have a playful wager respecting the viability of Judge Nuffer's opinion in Phillip M. Adams & Associates, L.L.C., v. Dell, Inc., et al., 2009 WL 910801 (D. Utah March 30, 2009). I think the judge's opinion will stand (though pushing the outer bounds of preservation), but Ralph anticipates an appellate slap down.

Losey recently posted about KCH Services, Inc. v. Vanaire, Inc., 2009 WL 2216601 (W.D.Ky. July 22, 2009), and kindly noted that where he disagreed with me on similar issues in Adams, we were of one mind on Vanaire. Hearing that I'd stumbled onto an acorn of rectitude moved me to actually read the opinion. And, indeed, Losey is right to side with the judge. (In fact, one can make a pretty good living siding with judges.)

CONTINUE READING HERE

IM-PECK-ABLE

Magistrate Judge Andrew Peck, who serves on the U.S. District Court for the Southern District of New York, has been quite active in drafting e-discovery rulings, such as March's William A. Gross Construction Associates, Inc. v. American Manufacturers Mutual Insurance Co. and Anti-Monopoly, Inc. v. Hasbro, Inc. -- both establishing important guidance for the creation keywords for searching electronically stored information. (See here, here, and here.)

But did you know that Peck also has written a reference book on all things Sherlock Holmes? Or that he drives to work (unusual for a Manhattanite). And you probably won't be surprised to see that he and I share the same favorite website. After all, he lives in New York City!

Check it out here in the October issue of Law Technology News.

Yahoo! Let My E-mail Go!

The September Ball in Your Court column from Law Technology News:

By Craig Ball

A voice came from on high and said unto me, "Go forth and harvest the clouds." Well, not a voce in excelsis exactly, but a court order directing I gather up parties' webmail.

The task seemed simple enough: The litigants would surrender their login credentials, and I'd collect and process their messages for relevance while segregating for privilege review.

Their data lived "in the cloud," and considering its celestial situation, I might have taken a cue from Ecclesiastes 11:4: "Whoever looks at the clouds shall not reap." So it was, I nearly got smote — not by Yahweh but by Yahoo! Cloud computing refers to web-based tools and resources that supplant local applications and storage. It's called "the cloud" because of the cloud-shaped icon used to signify the internet in network schematics.

Read the rest here.

Stay Afloat!

By Jeffrey Zinsmeister & R. Timothy Slattery

 
Litigation associates eventually find themselves tasked with a large-scale document collection. Unglamorous, tedious, and extremely time-consuming, such assignments offer little glory and much risk. The partner wants to minimize his or her time on the collection, but will take unpleasant notice when something goes wrong.

Additionally, most large collection projects are plagued by insufficient management resources. Organizing a large collection on short order within a budget requires logistical acumen, managerial competence, and discovery experience. Law schools do not grade on such knowledge and firms rarely look for this in new recruits.

Highway Robbery?

By Anne Kershaw & Joseph Howie

If you send an e-mail to three people, your system keeps one copy, with all three people listed in the "To" field. If you need to see all your e-mails to just one of those people, you search for that name. It's still just one copy. Indeed, it would be silly to have multiple copies. The same holds true for document discovery repositories, yet a recent survey suggests that lawyers still don't "get it," and often insist on keeping multiple, unnecessary copies.

Lawyers who fail to check for duplicates across multiple custodians, instead removing only duplicates from within the records of individual custodians, end up reviewing at least 20% more records on average. Whether or not their document review bills are ever audited, these lawyers are not meeting their ethical obligations to both clients and the justice system.

Read more here.

Ball in Your Court: "All Wet"

By Craig Ball

I was once trial counsel for the water authority of a Mexican city seeking damages for delay in the mapping of a water system serving three million customers. I learned that most water entering the pipes never reached consumers because the patchwork system was riddled with leaks. The leaks were difficult to repair because the water authority didn't know where its pipes were buried!

Repair crews made Swiss cheese of streets, but the massive leakage limited water service to just a few hours a day. Those who could afford it erected tanks to hoard water. The rest suffered. Until Servicios de Agua y Drenaje learned where its pipes lay, staunched the leaks and addressed local hoarding, the system stayed broken. ¡Ay, caramba! 

Read the rest here.

The MultiPass Erasure Myth

Craig Ball's latest column in Law Technology News  debunks the myth that it takes lots and lots and lots of effort to clean hard drives.

2008 Cases Reviewed

In January's Law Technology News EDD showcase, authors Cecil Lynn III and Alexandra Hicks -- both of Ryley Carlock & Applewhite -- review key decisions in 2008, and their impact on electronic discovery.  Click here for full article.

Although the Federal Rules of Civil Procedure provided clarity with respect to ESI, complying with Rule 34 as interpreted by the courts has stumped many litigators.

Check out what Ropes & Gray's Shannon Kirk and Kathryn Hong have to say in this sidebar Rule 34 Confusion

Is collaboration jeopardizing EDD security?

Web 2.0 covers a wide gamut -- including mash-ups, wikis, blogs, social search, RSS feeds etc. But while these collaborative tools are easy to use, they can hamper a company's security. Ganesh Vednere questions whether we are all "Out of Control" in the Jan. issue of Law Technology News.

Break Out the Books

With EDD exploding, many law schools are slow to adopt an EDD curriculum and failing to give their students a competitive advantage. Here's what LTN contributors William Hamilton & Ralph Losey have to say in "Break Out the Books," from our January EDD showcase:

"There is no doubt that our current legal system in severely stressed by electronic data discovery, and in need of repair. Until recently, most law schools ignored the problem; indeed, many seemed oblivious. At best, EDD drew only a passing mention in civil procedure textbooks."

Read  more.

It's Nothing Personal

With privacy laws varying throughout the globe, companies must be careful not to accidentally disclose personal data like credit card pins. 

LTN's January EDD Showcase author Bill Onwusah offers insight as to how an employee's privacy can be compromised at work, causing discovery problems. more

Socha/Gelbmann poll will add interactive tools

Contrary to circulating rumors, George Socha and Tom Gelbmann reported in the January issue of Law Technology News that their annual Electronic Discovery Survey is alive and well. This year's survey will feature a web-based provider selection tools as well as more in-depth information to subscribers, including full use of the provider selection tool and fell access to most categories of data from or about providers.

I offer my 2009 predictions in the latest issue of Law Technology News, and while I hope the whole column is worth reading, I at least managed to amuse myself with this excerpt:

"The federal EDD rules are two years old.  As every parent knows, the "terrible twos" are when toddlers, frustrated by their lack of language skills, turn to hitting, biting and tantrums.

Pediatrician Vincent Iannelli, writing for About.com, advises parents coping with the terrible twos to:

• Establish and stick to regular routines;
• Limit choices to exclude unacceptable alternatives, but share the decision-making process;
• Make the environment safer to explore by removing what's not needed;
• Discipline by taking away privileges; and
• Expect to see the limits tested by those exploring what they can get away with.

Perhaps I see e-discovery in everything, but isn't that a list of EDD best practices?"