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...

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!

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.

License to Pry

Back to the future.  All-of-a-sudden, the term "1984" has become quite popular in the news, on TV and on a certain blog & Twitter feed you may be reading at the moment.  It started with the U.S. v. Jones case regarding warrantless GPS tracking.

But 'Jones' is child's play compared to what the District of Columbia is doing on a daily basis.  At least in Jones, the issue revolves around the government tracking specific vehicles for specific purposes.  In DC, they track the license plates of all of the vehicles, all of the time.  Not only that, they retain the database, sometimes for years.

I don't know whether to be in awe or appalled!  As a techno-weenie, I can't help but be fascinated by technology that can accomplish this; but that doesn't mean I lose sight of the obvious risks to privacy.  Examples?

The Good:  A crime is committed, a witness jots down a license plate and the authorities are able to input said plate into the database and locate the perpetrator.

The Bad:  A husband calls police to report his wife missing.  They input her license plate into the database, locate her vehicle in front of an apartment building - and discover she's having an affair.

The Ugly:  Talk amongst yourselves...

As has been the case so many times before, this capability may be used for good, evil, or with good intent that becomes inherently evil.

Of course, the same could be said of chocolate cake.  In moderation, it's great; but eat too much and you can make yourself sick.  The question is, who's going to be responsible for making sure we don't overindulge?

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: 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.

Cascades: Good for Mountains, Bad for News Orgs

First things first.  My beloved Cubs rewarded my visit with a 13-3 loss to the Marlins, marking this as the most lopsided score over the 15+ years I've been making this journey.  Now, firmly ensconced in San Francisco - and with my state bar duties dispensed with for the week - we can return to more pressing matters...

How many of the execs swallowed up in the News of the World Scandal thought they'd ever be arrested in their lifetimes?  None.  In fact, a high percentage of the general public would agree with them.  But people-who-you-normally-wouldn't-expect-to-be-arrested are arrested.  And some of them eventually go to jail.

While you watch the slow and painful erosion of the Murdoch empire - and the collateral damage causally connected to it - I hope you consider one ingredient to add to your schadenfreude; you're watching a large-scale version of how your criminal or civil matter will unfold if you don't deal with it when it's manageable.

Of course, yours won't likely be this big or this public - or this expensive - but this is how it'll start; a molehill that, over time, grows into a mountain.  Or, in this case, a mountain range.  eDiscovery rules & regulations, litigation readiness programs and early case assessment are all designed to staunch the bleeding and, if instituted early enough, prevent the wound altogether.

You have to be willing to take the pain.  Like they always say, the first cut is the deepest.

e-Discovery Insights Selected by U.S. Library of Congress for Historical Archive

Folks, I don't know what else to say about this, except to provide you with the following excerpt I received this morning:

"The United States Library of Congress has selected your website for inclusion in the historic collection of Internet materials related to Legal Blawgs. The Library of Congress preserves the Nation's cultural artifacts and provides enduring access to them. The Library's traditional functions, acquiring, cataloging, preserving and serving collection materials of historical importance to the Congress and the American people to foster education and scholarship, extend to digital materials, including websites."

I think I just achieved immortality!!!

The 6th Amendment, the Blackstone Ratio & #eDiscovery

"Better that ten guilty persons escape than that one innocent suffer."

- William Blackstone, 1783

"’tis much more Prudence to acquit two Persons, tho’ actually guilty, than to pass Sentence of Condemnation on one that is virtuous and innocent."

- Voltaire, 1749

Whether you agree with the passages above (or a similarly-stated quote by Benjamin Franklin, circa 1785), one thing is certain; they form the basis of criminal jurisprudence in the United States.  At least, they used to...I think that claim would be up for strenuous debate these days.

But that's why I wanted to bring you this particular case for our examination.  It doesn't matter what I think; what matters is, familiarize yourself with these issues because there's a high likelihood you'll see them - or something like them - in civil or criminal court.  After all, attorney-client privilege is attorney-client privilege - it just so happens the venue in this example is criminal court, and the argument is Constitutionality in theory; the 6th Amendment Right to Counsel.

One thing that distinguishes a criminal complaint from a civil one is, when the government discovers and/or seizes evidence (whether due to reasonable suspicion, probable cause or a formal warrant) in many instances, the target does not enjoy the benefit of attorney representation (hey, it might be torture for you, but I'd say my company is enjoyable...).

Such is the case with defendant.  The government seized certain computer records, and among those records were emails from defendant to his wife - which were subsequently forwarded to defendant's attorney.  Defendant was convicted, but upon appeal, it was determined that the emails were subject to attorney-client privilege and the prosecutor's review of same was deemed a violation of defendant's 6th Amendment rights.

What am I telling you?  First, you won't always have control over what data is turned over to the other side (do I hear "clawback agreements", anyone?) and second, if you find yourself in a situation like this, somebody on your side had better examine each and every shred of data in the possession of your adversary.

Again, this isn't a judgment on the validity/invalidity of overturning a conviction based on a technicality (I'll leave it to followers of the Casey Anthony trial to argue their perception of what's fair or unfair about the current judicial system).  We have a job to do, our clients depend on us and we are to zealously represent - and protect - their interests.

File this one under Segal's Ratio: "For your client's sake, where electronic evidence is concerned, endeavor to know what you don't know."