e-Discovery Insights

Beware the Ides of #Google

You didn't think all that free stuff was free, did you?  Sure...multi-billion-dollar conglomerates give you all kinds of tools and want nothing in return.  No, like with most loss-leaders, they lure you through the door at a bargain, make you comfortable, then make it up elsewhere; such as by mining your data.

Beginning March 1st, 2012, Google will be using a bigger shovel.  That's when they implement their new privacy policy.  Funny...it should probably be deemed a 'lack-of-privacy' policy.  Essentially it allows them to mine your data over most of their products in order to create a better profile of you; ostensibly for your benefit, but really, for theirs.

Here's the deal.  I think most people, including me, are fine with giving up something in order to receive something.  I know that Google mines data, so I tweak my privacy settings to the maximum protection level and also bypass gmail, calendar and contacts sync for my Droid (I do the same with Yahoo and any other site that wants me to upload my contact and calendar information).  Why?  Because I know that Google, et al, wants to get their hands on it!

But, where it's a problem is for all of the people who have absolutely no concept of what they're actually giving up.  That means, you, attorneys!  This is the problem with the cloud.  If attorneys store their data - and that of their clients - in the cloud without understanding that its being mined, they've already violated their ethical duties in most jurisdictions.

We attorneys call it informed consent.  The problem is, it's the attorneys who have to inform themselves - and their clients - before they may reasonably consent.

These free services are coming with more and more strings attached (e.g., users who are forced onto Facebook Timeline know what I'm talking about).  The benefits are gradually shifting from the end-user to the provider.  Naturally, we always have a choice; conform or be cast out (thank you, Rush...).

As many of you know, I don't have a Facebook account.  A while back, when 200 million people were using the service, they seemed unusual.  Now that 800+ million are using it, I seem unusual!  Peer pressure is a bitch, but I was never one to run with the crowd, anyway.

Be cool or be cast out...

Four/Fifths of a Decision by the #SCOTUS

OK; all of my chapters for the California State Bar book are submitted, I've returned from my trip to San Francisco for the Section Leadership Conference, and you all know what that means!

[Somebody, please tell me what it means...]

In theory, what I *think* it means is that I'll be able to resume posting relevant content two to three times per week.  In practice?  Stay tuned...

If you're a follower of the Supreme Court, and you're also someone who is very interested in rulings that affect privacy, and depending on which side you're on, then this week, you are either:

• Happy that the 4th Amendment was protected, but angry that the 5th Amendment wasn't, or,
• Angry that the 4th Amendment was protected, but happy that the 5th Amendment wasn't, or,
• Happy about both, or angry about both.

It all depends on the facts.  In the Jones case, aka, the "GPS" case, the court decided that a physical intrusion onto private property to attach a GPS tracking device to a vehicle was a search as defined under the 4th Amendment.  Note the word, "physical".  If only it were that simple...

What about tracking a GPS-enabled device?  That issue wasn't addressed, here (except for comments on it in concurring opinions).  If one enables GPS to drive to a location, is that a voluntary disclosure?  That'll be the next frontier.

In a lower-court decision, a federal judge in Colorado ordered a defendant in a criminal case to decrypt her laptop, stating that she was not afforded 5th Amendment protection against self-incrimination, setting off another round of debate - and an examination of conflicting rulings - that will likely meander its way to the Supreme Court.

The logic is of the kind that only law afficionados may appreciate; defendant doesn't technically have to give up her password because she only has to enter it into the system without divulging it to anyone.

In other words, "Don't give up your password...just give us access to everything the password protects."  That, along with the "All Writs Act" of 1789, should afford you some interesting reading on the case.

An interesting week for the Bill of Rights and privacy, indeed...

e-Discovery LOL: "Pardon Me, Do You have any Pay #Groupon?"

e-Discovery California: Proposed Formal Opinion Interim No. 10-0003 (VLO) is the Right Answer to the Wrong Question

42.  (That's for those of you who picked up on the 'Hitchhiker's Guide to the Galaxy' reference).

I usually don't feel it necessary to refer you to my disclaimer but, because this is a State Bar of California opinion - and I'm Vice-Chair of their Law Practice Management & Technology Section Executive Committee (LPMT) - I want to remind you that:

"This blog site is published by and reflects the personal views of Perry L. Segal, in his individual capacity.  Any views expressed herein have not been adopted by the California State Bar's Board of Governors or overall membership, nor are they to be construed as representing the position of the State Bar of California."

The LPMT Executive Committee may publish its own, 'official' comments, to which I may also contribute.  That being said...

Technology is an extremely logic-based discipline, in its purest form; or it should be, at least.  Indeed, like the practice of law, success or failure is predicated upon compiling and understanding a particular set of facts, then realistically acting upon those facts.  Note my emphasis on the word, 'realistically'.  If I wish to suspend disbelief and begin with a set of unrealistic criteria, I may be equally able to formulate a reasonable solution, assuming it's possible to locate someone - or something - that fits the original, unrealistic premise.

This is my assessment of Formal Opinion Interim No. 10-0003 (Virtual Law Office).  It's actually a very well-crafted opinion, but it's based on a 'Statement of Facts' that, to me, are an unrealistic portrayal of how an attorney practices - or would practice - law.

First, there's no reason for me to re-invent the wheel.  For another excellent nuts & bolts assessment of the opinion, please see Stephanie Kimbro's post on her Virtual Law Practice blog.  She's an authority on the Virtual Law Office and is also cited as a resource on page one of the opinion itself.

From a pure cloud security standpoint, this is an excellent document and a perfect complement to opinion 2010-179 on wireless networks.  In fact, I would recommend that practitioners ignore the hypotheticals for a moment (especially if they're pressed for time) and proceed to the Discussion heading, Section 1 ("Duties"), which is what I'm doing for the purposes of this post.

Section 1 examines confidentiality issues of employing a cloud-based system with a 3rd-party vendor and provides a five-point list of due diligence factors that includes, but isn't necessarily limited to:

1. The Credentials of the Vendor
2. Data Security (Well, that's not very helpful, but it goes on to refer the reader to California, New York and ABA opinions for guidance)
3. Vendor's Transmission of Client Info in the Cloud Across Jurisdictional Boundaries or Other 3rd-Party Servers (You've heard - or read, I suppose - me pontificate on that one; the "digital roach motel" and "know where your data is")
4. Attorney's Ability to Supervise the Vendor (As I've reminded you often, you may hire competence, but not delegate this duty)
5. Terms of Service of Contract with the Vendor (This is huge where the cloud is concerned.  For example, many provider contracts contain language to the effect that, "Once you transfer it to us, it becomes our property.", a major no-no for attorneys)

It also points out the security environment must be periodically reassessed, which is terrific advice.  I usually refer to it as "fire drills".  Finally, it points out that none of this may take place without proper disclosure to the client, who may, by the way, have no idea how any of this works.

Section 2 examines competence issues as follows:

1. Proper management of attorney's intake system to determine one of the basics; "Who is the client?"
2. Determining whether attorney may perform the requested services
3. Determining that the client comprehends the services being performed (This document also refers to comprehension issues due to a language barrier)
4. Keeping the client reasonably informed
5. Determining that the client understands technology (When I read #3 above, it immediately triggered the thought that technology is another language both attorney and client must understand...)
6. Determining when to decline to represent a client via a VLO, and whether representation may continue through traditional means

This section also re-raises the supervisory issue, but this time it's in terms of the attorney supervising other attorneys and/or non-attorneys.

Ok, so you know what I like, now let's get into what I don't like.  The hypothetical describes the VLO as a password-protected and encrypted portal that sits on a 3rd-party cloud.  So far, so good.  But then, it goes on to say that the attorney plans not to communicate with clients by phone, email or in person, but will limit communication solely to the portal.

Yeah, that covers a lot of us, doesn't it? 

I understand that it's possible for attorneys to communicate this way, but is it probable?  Does this opinion realistically apply to most attorneys; now and even into the future?  I'm not trying to be snarky here, but you can't blame me for being a tech guy.  Immediately, my mind wanders to what would likely happen in this scenario.  A technology or communication issue arises and the frustrated attorney - or client - resorts to email or a phone call.

And what about secrecy?  No, I'm not alluding to some nefarious purpose.  There are legitimate reasons why attorney and/or client might not want to document ideas or discussions - electronically or otherwise - in the short-term (what comes to mind is a nervous potential client who has invented a new product, but doesn't want to provide a lot of written detail to attorneys, while soliciting the representation of several of them, for fear that the inventor's intellectual property will be revealed).

The second thing that bothers me is the "Issue" statement that opens the opinion.  It states, verbatim:

"May an attorney maintain a virtual law office practice ("VLO") and still comply with her ethical obligations, if the communication with the client, and storage of and access to all information about the client's matter, are all conducted solely through the internet using the secure computer servers of a third-party vendor (i.e., "cloud computing")."  [Italics/bold added.  It's posed as a question, but in the text, the paragraph ends with a period - not sure if it's a typo that will be corrected in a later version].

What's the danger here?  Hello?  Facebook is the cloud!  Google is the cloud!  Email is the cloud!  A lot of communication is taking place - right now - through means not anticipated in this opinion.  What I'm saying is, if one removes the term, "VLO", from this document, it could just as easily apply to methods attorneys use to communicate with their clients on a daily basis, while at the same time, being completely unaware that many of these products are in the cloud.

It also fails to anticipate one other factor; what will happen the day these measures apply to all cloud-based technology (that day is coming, and in some cases, is already here).  As it stands today, if most attorneys attempted to comply with these security measures, law practice as we know it would grind to a halt.

Better start preparing now...

v-Discovery Insights: #Facebook - An Arm of the #CIA

Well, this is my wrap-up post for 2011.  I'm about halfway through writing my assessment of CalBar's Proposed Formal Opinion Interim No. 10-0003 (Virtual Law Office) and should have it up by early next week.

And no, I'm not finished with my sections of the Calbar book, yet...

I see all of the year-end predictions and top-ten lists out there, but I'm closing out 2011 with this video from The Onion News Network.  I'm laughing, but not too much...

 

Happy New Year!

e-Discovery California: Wow - I Coulda had a VLO!!!

Happy Holidays, everyone.  I'm about 2/3 of the way through my book-writing and with any luck, I hope to submit most of my remaining contribution before New Years (that is, if I don't succumb to the most wonderful time of the year - Bowl Season!).  Hopefully, then, I can get back to posting here more often.

In the meantime, I have some homework for you.  The California State Bar Standing Committee on Professional Responsibility and Conduct (COPRAC) has posted, "Proposed Formal Opinion Interim No. 10-0003 (Virtual Law Office)" for public comment [Warning; link opens a 7-page PDF].

I'm currently working on an in-depth analysis of the proposal and hope to post it next week, but when I first scanned the opinion, my mind wandered to the law of unintended consequences.  I'll reserve commenting further until I've completed my analysis, however, I encourage you to familiarize yourselves with the opinion - whether you personally make use of a VLO or not.  After all, (and it pains me to say this), it isn't all about you; the attorneys at the other end of your communications may make use of a VLO.

The public comment period remains open until March 23rd, 2012.  Hope to see you before the ball drops, but if not, please be safe and have a great holiday!

When Your #Privacy is #Breached, This is how It'll Happen

The best examples in life are of the 'real-world' variety.  These days, I've been hunkered down in my bunker (also known as my dining room) writing sections for the upcoming State Bar of California book, "Growing and Managing a Law Office".  This will also explain why I haven't been posting on the blog as often as I'd prefer.

A couple of days ago, I experienced a serious breach of privacy.  Not my own, mind you, but someone else's!  Specifically, I was emailed a copy of their surgical records.  Why?  Human error.  The sender simply got the email address wrong.

The message contained a 'HIPAA' privacy notice, with contact information.  Not wanting to create another electronic record by replying to the email, I picked up the phone and left a voice mail message that the person had sent the records in error and I was immediately destroying the original message.  Apparently, they didn't check their voice mail, because a few minutes later, the same person emailed me the password to access the records.  At that point, I figured I'd better reply to the message itself...

The sender - and the patient - were lucky in at least two respects:

1. They sent the records to an eDiscovery attorney, and
2. I wasn't the least bit interested in looking at them.

Fifteen years ago, when I was purely on the data side, people used to ask me how difficult it was to refrain from peeking at so much confidential information.  My answer was the same then as it is today; curious people don't do well in our line of business.  Now, you'll note, I didn't say 'inquisitive'.  Obviously, there are times and events that will require a reasonable investigation - but this isn't one of them.

As I've oft repeated, a disaster or breach will not likely manifest itself in the manner you expect.  In this case, it wouldn't have mattered if the sender's company employed the most cutting-edge security procedures available.  In the end, the whole thing was thwarted by the 'send' key.

How do you think their security, technology and legal personnel would feel if they knew?

Century City Executive Counsel Exchange - Summary

Alec Baldwin's Twitter rant?  So last year...(that's why I created a 'Twit List').

BP accused of spoliation?  I've never heard that, before...

This week, I actually saw an article warning people to be careful what they post on social media, 'because it might come back to haunt you, someday.'...

Folks, it's almost 2012!  If any of the above headlines surprise you, you're either new to this game or you've been hiding in a cave (or you haven't been reading e-Discovery Insights the past three years...).  So, let me tell you about something more substantive - the annual Executive Counsel Exchange that was held this past Monday and Tuesday at the Hyatt in Century City, California.

I'm not aware of any other conference that operates the way this one does it.  It's a roundtable, free-form discussion over a period of a day-and-a-half.  Two old pros were moderating this year, Robert Brownstone of Fenwick & West LLP and Browning Marean of DLA Piper (if you don't recognize either of these names, we may have to have the 'cave' discussion again).  The moderators cover a series of relevant topics and the attendees are encouraged to participate.  Everything is memorialized and the attendees receive a copy.

Another thing I really appreciate is that, although it's a sponsored conference, the vendors are highly respectful about not bombarding us with sales pitches during their contributions to the program.

If you want to know what's happening right now, this is the place to be, because you're hearing it exactly as it is, from people covering all parts of the spectrum who do this every day (vendors, technology, inside and outside counsel, executive, etc).  Over the next several months, The Exchange (as its called) will be in four more cities across the country.  Unfortunately, I was only able to attend Monday's session this time, but I encourage you to check it out if you have the opportunity.

e-Discovery LOL: #ABA #Blawg100 Honors the Fallen

First of all, congratulations to all who made the ABA 2011 Blawg 100.  I was toiling away this afternoon when I happened to read their follow-up article, "We Honor the Fallen: Past Blawg 100 Entries Which Have Departed".

I'm pretty sure it was inappropriate of me to laugh out loud (especially since I've experienced many a day where I simply don't feel like writing), but hey, I did and I thank the ABA Journal for lightening my Friday load just a little bit...

Have a good weekend, everyone.  I'll be in Century City Monday, attending the Executive Counsel "Exchange".

Fine's 'Old Ball & Chain' May Result in a New Ball & Chain

By now, most of you are aware that the wife of assistant-basketball-coach Bernie Fine of Syracuse was recorded in what is the now-infamous, "I knew everything!" debacle.

Didn't I just caution about the people closest to you?  Folks, the old world is over.  No matter the circumstances, you must always assume that you're being watched, recorded or tracked; even in the so-called privacy of your own home.  I've reached the point where I believe you must ask yourself, "Am I about to say/write something that could be construed as harmful?" before ever opening your mouth or sending a text or email.

It's impossible for me to get inside the head of a person to figure out what they were thinking - and if we delved into the moral aspects we'd never come to any resolution - but take this as another extreme example of what happens when private thoughts become public.

Think broadly.  This isn't just about one person.  The recording was made in 2002 and has apparently been in the possession of authorities for years.  It's Penn State all over again.

Heads will roll...and perhaps they should.