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...

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.

I Need Jobs

I want to do something different.  The problem is, I'm not having much luck being hired.  I'm temperamental, moody, stubborn, and definitely march to the beat of my own drum.

I'm also euphemistic...

When I know I'm right, I stick to my guns - even at the risk of being wrong - which, I'm not embarrassed to say, I have been.  I wish people would just do what I say and stop questioning me so much!

I've pissed off so many people at work that - I like to joke - H.R. has a chair with my name embroidered on it!  It's gotten me fired, too.

People don't understand how my mind works - they just know that somehow, it works.  My spectacular failures are only bested by my even-more-spectacular successes.

My education's a little thin.  My mind was too restless to sit in a classroom, so I didn't finish college.  But I'm telling you, I've got some killer ideas and I can make them into reality; whoever I work with will make a lot of money.

I'm going to interview at this really cool tech company.  I think I can do great things for them.  It's on my calendar for Monday.  I'm just wondering one thing...

Do you think Apple Inc. will hire me?

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!]

Sarcasm. Effective Litigation Tool. Oh, Really?

Understanding human nature will take you a long way in litigation so, occasionally, I like to delve into the psychology of what we do.  This Washington Post article examines sarcasm as a creativity tool, but it's been in use in litigation all along.  Who hasn't seen this on TV; the attorney ends a cross-examination with a particular comment, the opposition yells, "Objection!" and the attorney says, "Withdrawn."

That's a simplistic view, though.  With some attorneys, the gamesmanship begins a long time before litigation arises.  You may not operate that way and you may be annoyed by those who incorporate this tactic, but it's still important to be aware of it.

After all, it's better to eat than be eaten...

e-Evidence Insights: Casey Anthony & the #eDiscovery Connection

The last thing I want to do is harp on the Casey Anthony trial; more than is necessary to make my point, anyway.  I only want to discuss one item; the verdict.  Is there an eDiscovery connection?  Yes, if you look at cases holistically and not by their parts.  I see people get so wrapped up in the minutia of what we do, they forget that ultimately, this thing may go to trial!

Why's this important?  Because you can be very successful at the eDiscovery portion - and still lose.  If this case proved anything, it's that anyone who thinks they can handicap a jury is smoking crack.  That goes for you, too, Nancy Grace!

One thing that always adds a wild-card to the deliberations - and this was clearly cited in one of the juror interviews - when the element of it being a capital case is added to the mix, individuals are reticent to be the ones to sign the death warrant, even if they're absolutely certain of guilt (and they weren't even close, here).

It's still a marathon to the finish line, but always bear in mind, eDiscovery is just a single watering-station.

#CalBar Solo & Small Firm Summit Recap

Yeah, I know.  The summit ended Saturday at noon.  It's been a busy week for me, but better late than never.  I had to skip the Thursday sessions, but arrived early Friday morning.  I was backing up another one of my LPMT colleagues in the tech lab, so between his presentations and mine, I didn't get to attend anyone else's sessions, which was a shame, because there were some good ones.  I did catch the bulk of Stephen Fairley's morning keynote on marketing and SEO.  I can only say this; the man is right on about what he was saying.  It was similar to the advice I received from my web guru, Clint Brauer.  Bottom line; if you're going to make a serious attempt at creating an online presence, you need to understand how your information will propagate to the 'web before you develop web sites, create accounts, etc.

I didn't know what to expect for my labs on disaster planning, but for both sessions (I did the identical presentation back-to-back) I had full houses.  The attendees asked a lot of good questions - which is the first indication they're not bored - and although we had some technical difficulties, I was able to illustrate how, in some cases, a few minutes is all it takes to create a basic backup strategy.

Day three, Saturday, I took in the morning keynote on "Multitasking Gone Mad", or, how the more we multitask, the less we accomplish.  Now, this was Irwin Karp presenting - who also preceded me on the LPMT committee - but I'll tell you, the idea of doing one thing at a time is something to strive for, but awfully hard to accomplish.

The second session should really make the eDiscovery people excited.  It covered hearsay (civil, for the most part), but guess what the starring attraction of most of the examples was?  Electronic evidence!  For example, the presenter showed a slide from a traffic camera of a car colliding with a truck at an intersection.  Another was a photo of a simple bar code (not a QR code, like the one you see on my right sidebar).  In both instances, the question was, is this hearsay?  As usual, the answer was, it depends on your jurisdiction.

The third session was one that eDiscovery professionals most likely wouldn't be attending.  It covered the activity up to and including the arrest of a client.  As you know, I also handle criminal cases, so again, this was a good refresher for me.

So, basically a quick in-and-out, and barring any changes to the schedule, my next presentation will be at Calbar's annual meeting in September.

A Lawyer Walks into an #LPMT Presentation...

No, I'm not going to post every time I make a presentation - unless there's something interesting to note.  In this case, my colleague Gideon Grunfeld and I presented on law practice management issues.  He covered attorney advertising and reputation-protection online and I covered - what else - protecting your data in the cloud, via social media, on your PDA, etc.  I also ran the attendees through the new California State Bar Opinion 2010-179 re: wireless networks.

Now, this was a group of tax attorneys, which is not in our usual wheelhouse, and being as we were the first presenters at 2:30 PM, I assumed we wouldn't get more than 15-20 people.  Then they started having to bring in extra chairs...then more extra chairs...and by the time we concluded, they were standing in the hallway; we estimated close to 50 people!

What's the significance?  Well, first of all, we knock ourselves out to try to do quality presentations, so it's no fun presenting to an empty room, but second of all, I was heartened that these attorneys wanted to know this material.  We took a bunch of quality questions, also.

Things are looking up!

e-Discovery California: Go See Cal!(PERS) about Retention Policy Pitfalls

 

Retention policies.

Can't live with 'em...can't live without 'em.

Damned if you do...damned if you don't.

Very few people like change, especially in corporate environments.  It's just another burden to bear.  If something's changing, you know what'll follow; a meeting, memo, or training.  Who wants that?

Rolling out a retention policy will usually result in a lot of complaining, but when coupled with all of the complex, new eDiscovery regulations, it gives you something else to worry about - even if you have no anticipated litigation at the time the policy is implemented (notice I didn't say 'pending', which isn't the proper standard).

Just ask CalPERS, aka the California Public Employees' Retirement System.  CalPERS implemented an internal 60-day retention policy - and apparently didn't bother to tell anyone.  Furthermore, they gave 2,300 of their employees discretion over what additional ESI should - and shouldn't - be kept.

Oh, did I mention they're currently under state and federal investigation?

It's prudent to be aware that, no matter when a retention policy is implented, your opponents will always have an interest in claiming you're committing misconduct by deleting evidence of...misconduct.  Therefore, I rountinely suggest that, prior to implementing - or modifying - a retention policy, a thorough review of current status should be performed - just in case you have to explain it to the judge.

A Lawyer Walks into an #eDiscovery Presentation...

Last night, I did a one-hour presentation, "How to Lose an eDiscovery Case in 30 Days", to a room full of seasoned lawyers - and a couple of judges - for the Los Angeles County Bar Association Litigation Inn of Court.  I've been a member of this group for approximately two-and-a-half years and, having discussed eDiscovery at length with the members over the usual cocktails and dinners, I tailor-made my 20-slide talk to focus on what I believe they wanted - and needed - to know.

Slide #1 was my nine-point outline of what I would cover over the hour.  Forty minutes later, I was still on that slide.  The Inn of Court uses an open-question format.  Unfortunately, in our space, one question opens a can of worms, which spawns multiple follow-up questions.  Obviously, it's a good thing that there were so many questions - and the attendees can always read through my presentation at their leisure - but, as someone who is always observing those who are observing me, it illustrates how much farther there is to go.  I could have easily stretched the talk to two hours and still would have likely run out of time.

When I present at the CalBar Solo and Small Firm Summit June 24th, I may have to switch to the despotic method and hold questions until the final ten minutes.  It's a tough call.  Every question I was asked last night was substantive and important - and deserved an answer.  The problem is, with only an hour available, the best one may hope for is completing an overview.

To put it another way, I made it through the meal, but didn't get my dessert.