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!

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.

#Santorum May Need a San(i)tor(i)um

What's in a name?  If you're Rick Santorum, unfortunately, more than you would ever want.  Mr. Santorum is receiving a front-row education on what happens when you lose control of your own identity online.

Identity theft?  Kinda.  SEO optimization gone mad?  Definitely.  I'd call it identity transmogrification (no, it isn't a word that Calvin made up...).  But that's what happens when emotion, thought and feeling are removed and we're left with raw data.  It doesn't think.  It doesn't balance.  It just is.

I wonder how effective it might be to yell "Sticks & Stones!" at a computer?

e-Discovery LOL: Perry's New Book: "F'ed Up!"

What?  There's no apostrophe?  Oh...

I don't know why that title popped into my head while I was watching last night's Republican debate, but it did.  Actually, it gives me the opportunity to let you know that I'll be collaborating with some of my colleagues to write a book for the State Bar of California that is expected to be published next June.  I'm a bit shy on details at the moment, but I'll let you know as soon as I know.  I've bitten off a fairly large chunk of the project, so it looks like I'll be busy writing soon.

Annual Meeting Wrap-Up - How Sausage is Made

Well, that didn't go quite as expected.  What I would have liked to do is give you my usual summary on the goings-on and highlight the CLEs I attended.  Unfortunately, because of a full slate of meetings, I attended only a single CLE; and that was the one I presented with Derick Roselli!  I did manage to pop-in to the final twenty minutes of one on privacy, but that was it.

I barely had time to tweet, but if you do follow me, you know that after a Thursday that stretched out to approximately 14 hours of back-to-back-to-back meetings, I endeavored to leave the Long Beach Convention Center at around 10pm, got in my car and...nothing.  Dead battery.  Crap!!!  In came the very generous folks from Hyatt, who got some booster cables, sent a guy over with me and we got it started.  This wasn't as easy as it looked.  The parking garage entrance was locked up tight (no security personnel anywhere to be found), so the guy actually helped me push my car to the entrance - and we boosted it with my car on one side of the security gate and his on the other.  All this while in a suit, no less!

Aside from not being in the mood to have a dead battery after a long day, if one could have picked a good day to deal with a dead battery, Friday was it because I had a light schedule.  I managed to get it done, but didn't get back in time to attend our own LPMT reception at 5:30pm.  I sauntered in - twenty minutes after the event had already ended.  Some of you attended with the intent of meeting with me and I apologize for missing you.

On the personal side, it was a very exciting event for me.  I attended the Council of Sections meeting and saw how the Bar interacts with all of the sections like ours and I also had a really productive meeting with the Bar's Internet Coordinator.  As the only section dedicated to technology, we strive to lead the way and this means maintaining close contact with our counterparts at the Bar so they know what we're up to next.

Our section held a five-hour meeting Saturday (a lunch break was in there somewhere) and it was back to the sausage grinder.  This is the "passing of the torch" event, where the outgoing officers have their final day and turn the gavel over to incoming officers (unofficially).  So, I assumed my Vice-Chair role (officially) the day after the meeting.  We summarized the prior year's accomplishments and mapped out the upcoming year.  It's an ambitious agenda but will be very beneficial to our members.

Our incoming Chair this year is Will Hoffman.  It's my job to do everything in my power to see to it that Will succeeds.  I wish him well.  It's a lot of work!

Sunday, Derick Roselli and I presented our CLE #144 on eDiscovery Facts & Fallacies.  Considering it began at 8:30am on a Sunday morning, we had a good turnout (my headcount was 38) and plenty of healthy Q&A.  We were also pleasantly surprised to discover that we'd been selected for videotaping.  This is great because, for those who didn't see our presentation, they can access it once it's posted on the Bar's website (hint: see program 7 from last year on Mars/Venus).

There you have it.  Four days of heavy activity.  Countless meetings.  One dead battery.  Now, I'm the one who feels like a sausage...

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?

A Perry Home Companion

Well, it's been a quiet week in eDiscovery Insights-Land, California, out on the edge of the prairie...the little blawg that time forgot and the decades may improve...where all the women are strong, all the men are good-looking, and all the lawyers are above average...

Anybody who's a fan of Garrison Keillor recognizes the above reference.  About the only connection I have to the original is that I grew up in the province of Alberta, which is on the Canadian prairie (yes, Canada has a prairie...)

I channeled that quote after reading this great line from Adrian Dayton in the National Law Journal:

"Social media and blogging aren't about making you famous; they are about making you a little bit famous..."

Dayton examines why major law firms are - or aren't - blogging, and why.  Take it from me, I can think of many reasons to blog and many reasons not to blog.  In this 'taken out of context' world, which also happens to be a staple of litigation strategy (as I partially examined in this post, recently) it's very easy for someone to take a snippet of information and manipulate it.

Comes with the territory.  Like it or not, we live in a sound-bite world.

On the other hand, a lot of major firms may not be blogging; but they're reading us.  I found that out when, for example, a Partner at Jones Day quoted one of my posts for an article about Twitter in the New York State Bar Association Journal.

A little bit famous...

[Thanks to Charlotte Brownstone for today's title!]

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."