e-Discovery Insights

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...

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!

e-Discovery California: Brown Cancels Leno

Continuing what many privacy advocates will see as a disturbing trend against 4th Amendment protections in the state of California (and elsewhere), Governor Brown has vetoed the 'Leno' bill, SB 914.  The bill would have required the government to obtain a warrant to search a cellular device upon an arrest.  This follows on the heels of the Supreme Court of the United States declining to grant review of the Diaz case.

In another California case, the 2nd District Court of Appeal cited Diaz in upholding the warrantless search of a digital camera.

These days, if you blink, you may miss another decision affecting the concept of privacy in the United States.

e-Discovery California: How am I Behaving? Text 800-IM-DRUNK

A bunch of people get together on a Saturday night.  They drink beer.  They drink more beer.  At last call, wanting to keep the buzz going, they order two more beers - and guzzle them.  Somebody looks at somebody else sideways and a fight breaks out.  And so it goes at the local pub?

Yes, but so it also goes at the local baseball diamond, etc.  "I went to the fights and a hockey game broke out!"

Now, California Assemblyman Mike Gatto (D-L.A.) wants to establish a new law that would beef up penalties for fan misbehavior at sporting events.  It would also fund a reward-based program to encourage fans to report other fans.  Here's why I think this is a misguided idea:

1. Ever heard of Crime Stoppers, et al?  Mechanisms already exist for reporting crimes.
2. Why is this venue singled out?  Because it's on the news?

A more reasonable approach, among others, is the method adopted by some teams that enables fans to text information about incidents directly to security personnel.

The minute one introduces pay-for-play to the mix, the potential for abuse increases.

Heck...next you'll tell me they're gonna pay kids to go to school!

e-Discovery California: Upcoming Presentations, Activities & #LPMT Free Offer EXTENDED!

Is it just me, or are these officially the dog days of summer?  Maybe I feel that way because while visiting my mom, the temperature hit 115 - not fit for man, beast...or lawyer!

The California State Bar Annual Meeting is rapidly approaching, so I thought I'd issue this friendly reminder.  I'm presenting CLE #144 on Sunday, September 18th from 8:30 - 9:30am with my colleague on the Law Practice Management & Technology Section Executive Committee, Derick Roselli, called "Truth or Consequences: e-Discovery Facts and Fallacies".  Here's the synopsis I came up with this time:

"Often, attorneys and their clients lack an understanding of technology, and are unclear about e-discovery rules and the risk of sanctions. This presentation provides an in-depth understanding of the process and how to stay on the right side of ethical lines."

That's a bit better than the ones I came up with at the last minute.  For attorneys, one-half-hour of the presentation qualifies for the coveted ethics credit.  So, do what I'm going to do; get up early, drink as much coffee as you need, then join us for some very useful information!

And while we're talking about credit:

You still have time to take advantage of free LPMT Section membership through the rest of 2011.  The deadline has been extended and is now Tuesday, September 27th.  All you need to do is send an email to lpmt@calbar.ca.gov and include your California State Bar number (if you have one).  That's it!

But wait!  There's more!  This offer isn't just for attorneys - or even California-licensed attorneys.  Out of state attorneys, paralegals, anyone who would like to test-drive the section may join!  You still have time.  Email us before the deadline!

Before I go, if you're attending the annual meeting, just thought I'd mention, if you want to meet, I'm going to be there every day from Thursday through Sunday.  I do have a ton of meetings and activities scheduled, but I'll always make myself available.  Also, I encourage you to partake of the many other high-quality CLEs presented by the LPMT Section.  Check the guide for details. 

Now, where did I put my lemonade?

e-Discovery California: Predictive Policing or e-Profiling?

Please note; I didn't say racial profiling...

I was some kind of Twitter-maniac this weekend.  Normally, I don't tweet a lot of articles because I don't think it's the best use of the discipline, but it seemed like every time I turned around, I was reading interesting pieces about technology, security, evidence, law or the economy (as it pertains to us) that I thought would be of interest.  If you're one of my followers (how creepy-sounding is that?!), I hope you'll check them out.

This article begs further examination, however.  The police force in Santa Cruz, California is experimenting with using mathematics to predict where crime hots spots will occur - then deploying resources to those likely hot spots.

I wrote about this back in January.  It kind of takes on the pathology of the movie, Minority Report.  At the time, I said, "We don’t arrest people for crimes they haven’t committed, yet."  We still don't; but it sure would be convenient to be in the vicinity waiting for them when they do.

In theory, it seems like a great tool - using history of prior crimes to predict future ones; but it was the following comment by a patrol officer that raised my eyebrow (just one, mind you):

"[The program] doesn't give me legal reason to arrest somebody just for being in my hot spot, but it gives me good reason to stop and ask what they are doing,"

My question in response to that statement is, "No, it doesn't give you legal reason to arrest somebody, but does it give you reasonable suspicion?"

It's a rhetorical question because, absent any additional facts, we can't really answer.  However, I know one person who would definitely be asking it; a good defense attorney.

#eDiscovery California: AB 141: "Fresh" Approach makes Juror Texts & Tweets a Misdemeanor!

California is putting its money where my mouth is and is enacting AB 141, authored by Assemblyman Felipe Fuentes (D-Sylmar) and signed by Governor Brown yesterday.  It codifies the already-existing rule that juror texting or tweeting - or any other electronic communication in relation to an existing case - is a violation of duty.  But effective January 1, 2012, a juror caught doing so is chargeable with a misdemeanor.

Technically, judges could most likely do so right now under their general 'contempt' power, but, as we've seen with electronic discovery rules, this specifically targets and clarifies the rules as they apply to electronic misconduct.

I'm firmly in the camp that believes there must be harsh (or more harsh) penalties for juror mischief if we have any hope of maintaining the integrity of the legal process (some will probably say we're too late).  This is a good start.

And for anyone who believes a judge wouldn't dare impose such a penalty?  Any lawyer who's spent time in a few California courtrooms will tell you plainly; you're wrong!

e-Discovery California: #LPMT Offers Free Membership to ALL #Calbar Members

Hot on the heels of Calbar's Annual Meeting offer, my Law Practice Management & Technology Section is doing you one better:

"During the month of August, you have an opportunity to join the LPMT Section free and enjoy the benefits of membership.  To receive your FREE LPMT Section membership for the remainder of 2011, just send your name and California State Bar number to LPMT at LPMT@calbar.ca.gov by August 27."

e-Discovery California: Starting August 2nd, #Calbar Annual Meeting Attendees Receive Free Section Membership! #LPMT, Anyone?

Annual meeting registrants; beginning August 2nd, this is your opportunity to test-drive a Calbar section free through the end of 2011, and obviously you want to try LPMT!  Uh-oh, guess I'd better sign-up for that "Elimination of Bias" CLE...

Guess what else you'll get?  The opportunity to see yours truly - along with my LPMT colleague Derick Roselli - present program #144 on e-Discovery Facts and Fallacies, Sunday, September 18th at (ugh!) 8:30am.

e-Discovery California: The 'Leno' Show Seeks to Overturn Diaz: SB 914

If you're not familiar with Diaz, begin here.  In a nutshell, the Supreme Court of California ruled that if arrested, the government may search your cellular device - without a warrant.  Now the California legislature is getting in on the act. 

State Senator Mark Leno (D-SF) has introduced SB 914 (which has already passed in the senate), seeking to overturn that decision and require the government to do things the old-fashioned way; procure a warrant based on probable cause.

I've previously said that the current ruling has the potential to lead us down a dangerous path.  As far as the state of California is concerned, this is a very important piece of 4th Amendment legislation.

Regardless of how this turns out, you already know my advice; set a password for your PDA - and keep it!