e-Discovery Insights

Did Mikey Like the New, Improved LTWC 2013? Day One...

I've just returned from day one of Legaltech West Coast.  I'd hoped to attend both days this year because my Calbar LPMT colleague, Andy Serwin, presented the keynote this morning,  Alas, it wasn't meant to be...

Leading up to the conference, the meme was that this is the new, improved LTWC with the addition of, "The California Lawyers' Track".  Makes sense.  Depending on which statistic you consult, approximately 20-25% of the lawyers in the United States reside in California.  So, how did all this measure up to their most hard-to-impress critic, Mikey?

(It's me...it's me...I'm talking about ME!)

First of all, it not only makes sense, it's smart.  I'm the first one to admit that virtually all of the programs I present contain at least 50% Ethics content - not only because it's great as far as addressing educational issues that attorneys need to know -  but also because Calbar has a mandatory requirement that California attorneys attain four hours of specialty credit in Ethics every three years.  The specialty credits are notoriously hard to come by and it always results in higher attendance at my events.  I'm sure the gurus at LegalTech understand this factoid.  They also worked in our other specialty credit requirements: Bias & Substance Abuse.  However, three out of the four were presented on the final day (incentive to entice California attendees to stick around for day two, LegalTech?  Well played...)

If you attended all specialty sessions over two days, you'd satisfy one-hour Bias, one-hour Substance Abuse and two-hours Ethics.  That's four out of a total of six hours required!

Advantage:  LegalTech

Ok, great; the potential is there.  But none of that matters if the programs aren't substantive.  Were they?  If you've been reading me for a while, you know I don't dole out compliments much, but I have to say that I found the content of the three sessions I attended to be excellent; and the final session of the day may have been the best I've ever attended at any conference.

Unfortunately, I was unable to get there early enough to see the keynote speaker, D. Casey Flaherty (and I regretted missing him even more after attending his program in the final session of the day - see below), so I started with "A Panel of Experts: A Candid Conversation".  Judges Jay Ghandi and Suzanne Segal (no relation) discussed the challenges brought by eDiscovery.  If you follow my Twitter feed, you saw the money quote from that session.

Mid-day, I went another direction.  Owen Byrd from Lex Machina was presenting on his article, "Moneyball for Lawyers: How Data and Analytics are Transforming the Practice of Law".  This was also the title of an article Owen wrote for our LPMT Committee publication, "the Bottom Line", which will be published in a week or two.  He showed us how they're using data in whole new ways to give attorneys every advantage in a case.

To end the day, it was back to the judges (or so I thought) with, "Judges' Panel: The Current State of the ED Market".  At first, I was disappointed because the "judges'" panel had only one judge, presenting via Skype.  That ended up working out just fine.  The live panel included one big firm eDiscovery attorney and the aforementioned Casey Flaherty, Corporate Counsel for Kia Motors America.  Here's the deal.  Mr. Flaherty walked us through the painstaking process he followed to procure the best eDiscovery vendors for Kia that he could find.  What did I think?  Read my assessment at the LexisNexis "Matters of Practice" Blog.

Well, that's a wrap for this year.  See you next year at LTWC 2014!

Upcoming Presentations: eDiscovery Fortunes & the San Francisco Exchange!

Beware the Ides of March...(or technically, four days afterward)...

March 19, 2013 - 1:00 P.M. to 2:00 P.M.:  I'm presenting a co-branded webinar for both the State Bar of California's LPMT and Intellectual Property Law Sections, entitled: "Discover a Fortune Hidden in a Computer: A Practical Guide to E-Discovery".

As we know, depending on the results of any forensic exam, it might result in misfortune for one side or the other.

March 26, 2013 - 8:30 A.M. to 6:00 P.M.:  I'm also delighted to be added to the faculty of Today's General Counsel's, "eDiscovery for the Corporate Market", aka "The Exchange".  On the first day, I'll be one of the moderators of two panels; Session 2: "21st Century Considerations: Data-Security, Social Media and the Cloud", and Session 6: "Effective and Efficient Project Management".

I'm surrounded by some impressive heavy-hitters on this one and as I've stated in the past, I really like the roundtable approach, which fosters great participation and discussion (which is why I was happy to join the faculty).

Hey, at least I didn't say, I liked it so much, I bought the company...

eDiscovery California: USDC - Northern District of California - Publishes New ESI Guidelines

This news is so important to me - and most likely, to you as well - that I actually dropped what I was working on so I could bring it to you asap!  I wanted to make sure you're aware of the implementation of these new ESI guidelines, which took effect yesterday.  Here's the press release, and here's a direct link to the guidelines page which includes a checklist and model stipulated order.

eDiscovery California: Social Media Laws Take Effect Jan. 1, 2013

Welcome back, all.  I hope you had a nice holiday and are fully rested so that you may now spend the rest of the season...at the mall!  We're getting close to the New Year and as is true each time we approach January 1st, we have a bunch of new laws taking effect.  California employers and post-secondary institutions should take note of two of them; AB 1844 and SB 1349.  Both were signed into law by Gov. Jerry Brown back on September 27th, 2012.

Although the language in each bill is different, essentially, AB 1844 prevents employers (also potential employers) from demanding, using or exploiting an employee's (or potential applicant's) social media passwords and information.

SB 1349 is substantially similar, except that it applies to post-secondary institutions; both public and private.

There is speculation in the media about the necessity of these types of regulations.  Many believe that a substantial risk of invasion of privacy doesn't exist.  Maybe not; but moving forward, I believe the risk will increase exponentially.

What's next - bionic mannequins???

eDiscovery California: Upcoming Panel: eDiscovery and Legal Technology in Practice Conference - San Francisco

I'm going to be on a roundtable panel at the Thomson Reuters 'eDiscovery and Legal Technology in Practice' Conference 2012 in San Francisco.  It's an all-day event, taking place on December 5th.  It's a terrific agenda; here's the scoop on my specific panel:

12:00pm – 1:10pm

Under Fire: Defending and Challenging a Motion against Technology-Assisted Review – A mock Meet and Confer (26f) hearing.

Panelists:

Nicole Armenio - Kroll Ontrack Solution Architect
Perry Segal - eDiscovery Attorney and Management Consultant, Charon Law
Hon. Socrates Peter Manourkian - Judge of the Superior Court, County of Santa Clara

It's entirely possible that by 1:00pm, the attendees will all be thinking about lunch...

eDiscovery California: Upcoming Presentations: CalBar 85th Annual Mtg

Why have I been missing in action the past couple of weeks?  Because I over-committed, that's why!  Note to self: Don't propose two presentations for the CalBar 85th Annual Meeting, thinking that only one will be selected...WRONG!!!  So, to kick-off my re-appearance on this blawg, here are my two upcoming presentations in Monterey:

eDiscovery eVolution: Crawl, Walk, then Run Your Case!  (Program 25)

Thursday, October 11, 2012  4:15 p.m.-5:15 p.m.

Strategy matters, and litigation is a term of art and a little showmanship. Learn how to strategize during a case to get the most out of each other for the clients' benefit.

Presenters:  Perry L. Segal, Derick Roselli

CLE: 1.0 Hour General Credit

This is going to be a good one, because I'm taking the role of attorney (type-casting) and my LPMT colleague, Derick Roselli, takes the role of technology expert; which is his true specialty at HP/Autonomy.  We're going to do a walk-through of a case from the perspective of the attorney consulting with his expert on a case, from start to finish.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

The Cloud: Secure? Yes. Ethical? Not so FAST!  (Program 50)

Friday, October 12, 2012  10:30 a.m.-12 noon

It's essential to conduct due diligence regarding a vendor's security practices to insure the confidentiality of client data. Even if the data is believed to be secure, it may violate an attorney's legal/ethical obligations. Learn the next step-- assuring client communications are secure and ethical.

Presenters, Perry L. Segal, Donna Seyle

CLE: 1.5 Hours of Which 1.0 Hour Applies to Legal Ethics

Donna Seyle is another of my LPMT colleagues, and we're going to do a practical examination of attorney ethics rules - both ABA and California - as they pertain to data and social media interaction in the cloud.  Our goal is to explain to attorneys how even a secure cloud may violate ethical obligations to the client if additional precautions are not followed.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

I 'officially' assume the Chairmanship of LPMT at noon, Sunday, October 14th.  Here we go!

eDiscovery California: Proposed Formal Opinion 10-0003 (VLO) is now Formal Opinion CAL 2012-184

Attorneys, please take note: The State Bar of California Proposed Formal Opinion Interim No. 10-0003 (Virtual Law Office) has been adopted as Formal Opinion CAL 2012-184 (link opens 7-page pdf).  If you missed it the first go-round, I highly recommend that you familiarize yourselves with this opinion.

I can lead you to the water (but I can't force you to make the Kool-Aid).

e-Discovery California: Upcoming Presentation: CalBar Solo Summit

Just a reminder that Friday, June 22nd, 2012 from 9:45 - 10:45 am, I'll be presenting Program 16: They See You When You're Sleeping: Attorney Privacy Confidentiality & Security for one hour of specialty ethics MCLE credit at the State Bar of California Solo & Small Firm Summit, which is being held this year at the Renaissance Hotel in Long Beach.  Here's a brief synopsis:

A preview of the soon-to-be-published book, “Growing and Maintaining Your Law Office”. Attendees will learn about ethical obligations to protect attorney-client privacy, confidentiality and security -- both personally and via the smart-phones, computers & software they use daily.

I look forward to seeing you there!

eDiscovery California: Formal Opinion Interim No. 10-0001 (Social Networking) Raises an 'Adject' Issue

First, my disclaimer:  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, "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 State Bar of California's Board of Trustees or overall membership, nor are they to be construed as representing the position of the State Bar of California."

The last time I analyzed one of these, it pertained to VLOs.  I found that Opinion much more difficult to address.  Formal Opinion Interim No. 10-0001 (Social Networking) is easier in some respects, because its main purpose is to apply current California rules (specifically, Rules of Professional Conduct:  Rule 1-400 Advertising and Solicitation and sections of the Business and Professions Code) to what it refers to as, "social media websites".  That's where the trouble begins; with the adjective.  We'll get to that in a moment.

There's no reason for me to do a dissertation on 1-400.  California attorneys should already be familiar with this Rule (or they can look it up, above).  Suffice it to say, for our purposes, this can be like Jeopardy, because we need ask ourselves two questions:

1. What is a communication?
2. If a posting is determined to be a communication, is it an advertisement or solicitation?

The only major problem I have with the document is Footnote Two on Page One (link opens the 6-page PDF).  It attempts to describe Facebook "friending" as an example of what it considers a "controlled" group.  It doesn't seem to take into account that, like Twitter, et al, your control group can republish your post (e.g. Re-tweeting).  My view?  Continue to treat your posts as if they're visible to the entire world!

Page Five reminds us of Rule 1-400(F):  "...the Committee notes that a true and correct copy of any “communication” must be retained by Attorney for two years. Rule 1-400(F) expressly extends this requirement to communications made by “electronic media.” If Attorney discovers that a social media website does not archive postings automatically, then Attorney will need to employ a manual method of preservation, such as printing or saving a copy of the screen."  [italics added]

Gulp!  How many of you remembered that part of the Rule?

Concluding, the Opinion has an adject(ive) issue.  It refers to "social media websites", but it also refers (as it should, in my opinion) to general attorney websites.  If I were to make one glaring modification to this document, it would be to find the phrase, "social media website(s)" wherever it appears, and replace it with, simply, "websites".

The qualifier serves no purpose.

By the way, if you'd like to comment on the Opinion, the 90-day period is open through 5pm, July 2nd, 2012.

How I Spent My Day at LegalTech West Coast

Have I ever gotten a LegalTech summary posted quickly?  I don't think so.  It seems like every year, the conference falls on a busy week for me.  No exception this year; in fact, regretfully, I was only able to stay for the first day.

As always, I want to inform you that I attended as a guest of the provider, ALM.  However, nobody at ALM ever attempts to influence what I write about the conference and as you know by now (hopefully), I write what I see.  So, without further delay, here goes...

Usually, I find that the day starts out strong and ends more weakly.  You get tired drinking in all of that info, especially now that the format has changed slightly to less sessions of 90 minutes each.  This year, the converse was true.  The day seemed to start out a bit quite, but by the end of the day, there was a very noticeable pick-up in both energy and attendance.

Scheduling is still the biggest problem; the more events you attend, the more people you know, which is both a positive and a negative:

Positive:  You have a lot more to do and will end up attending more events.

Negative:  You stop every ten feet to chat with all of the people you know and end up arriving late to every session.

I started with the keynote, presented by Kevin Genirs, Global General Counsel, Investment Banking, Barclays & Former General Counsel, Investment Banking, Lehman Brothers.  The topic was, "2008 vs. 2012: Lessons from Lehman Brothers".  From an informational standpoint, it was excellent.  An insider's view of the Lehman Brothers implosion - how can that not be fascinating?  However, it really didn't have anything to do with "Legal-Tech", so to speak.  To me, that didn't matter, as listening to the information from someone who was on the front lines served to humanize the event.  It's not the same as reading the cold facts in a newspaper or online, or watching them on TV.

As far as session choices, due to having been swamped prior to arriving at the conference, I literally made my choices on the fly.  This became amusing when I attended interesting sessions, only to discover that friends and colleagues were presenting them.

Session one was, "Guarding Against the Enemy Within", which pointed out that you're more likely to experience a security breach from within an organization than from without.  It's funny, because I'm presenting a very similar talk on Friday, June 22nd at the Calbar Solo & Small Firm Summit.  They think the way I do; that people, deliberately or accidentally, are more likely to facilitate a breach than via an outside attack.  The session was high on substantive content and I got a lot out of it.

After the lunch break, I attended, "Dealing with Data Theft".  I don't think I need to elaborate on the subject matter.  As I mentioned, I was pleased to find that a colleague, Wayne Lee from Verizon, was one of the presenters.  Again, a very substantive presentation by this panel.  Along with the presentation, we were also given a copy of Verizon's 2012 Security report.  If you're not familiar with it, you should be.

To finish out the day, I switched tracks and attended, "Exploring Hot E-Discovery Trends: FRCP Amendments, Social Media, and Emerging Case Law".  Again, I was pleased to discover that my colleague, Ron S. Best, was one of the presenters.  I didn't get as much out of the session because, unfortunately, it was geared to a beginner-to-intermediate audience.  That's by no means a bad thing, based on the participation of the attendees - the room was bursting at the seams.  What's gratifying is that each year, the increase in awareness and interest in these fields is palpable.

My biggest regret was that I couldn't stay for day two, but we do what we can, right?  See you there next year!