From Findlaw: “E-Discovery in 2010 – It Doesn’t Have to Be Perfect”

Book learning

Image by gorbould via Flickr

By Stacy Jackson (Findlaw.com) for Complete Article CLICK HERE.

The advent of e-discovery has given birth to a new field of ancillary litigation — discovery about discovery. Parties are busy looking for what’s missing, in the hopes of making their opponent “the spoliator”. You see, once you label the opposing party as “the spoliator” the riches can be many – including an adverse inference jury instruction and cold, hard cash in the form of sanction.

So, it’s a good thing that this years’ overarching e-discovery theme is “perfection” – more accurately, a lack of perfection. It’s all right that your preservation, collection and production efforts aren’t perfect – as long as they are reasonable and performed in good faith. Consider the two most prominent cases of 2010 – Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC , 685 F. Supp. 2d 456 (S.D.N.Y. 2010) and 269 F.R.D. 497 (D. Md. pt. 9, 2010) .

Perfection is not expected, but you cannot conduct discovery in an “ignorant and indifferent fashion.”

About the Author of the Original Article on Findlaw.com

Advertisements

Google Chrome: One Step Closer to Paperless ?

Chrome OS Login

I just applied to be one of the test pilots for the Google Chrome OS. I am very interested in the prospect of having something that is connected to the Internet on a constant. Naturally, as a lawyer, I do have questions about security, confidentiality, practical use in the courtroom, and collaboration with staff. Hopefully, I will be one of the lucky one’s who gets to test this system in earnest.  I have tried, at various times, the Linux-Ubuntu OS, Windows (since its introduction), and Mac options since the 1980’s.  The prospect of a challenger to the old guard provides a clarion call for innovation.  I honestly hope that Chrome can drive innovation in this area — it’s been a while.

From what I can see, the upcoming Chrome OS is extremely user friendly and should be familiar to most of us vis a vis the use of “apps.” I certainly support anything that is quicker and which provides some level of long-term data integrity in terms of storage and accessibility. I am looking forward to becoming familiar with this particular OS and sharing the news as it comes in terms of strengths and weaknesses.
My guess is that the existing Google Apps will go a long way toward basic functionality. I already use Google Calendar, Google Docs, and Picasa for my photos. Each of these programs or services have improved over time and the fact that Google is way ahead with its research and development, I wouldn’t be surprised if they did not start to give Apple a real run for their money in the tablet OS arena and number of apps ultimately available. Much like in the 1980s, I think that Apple will have led the way, but may ultimately be overrun by its own innovation. Anyway, without further opining, you can check out the video showing Google Chrome in action on one of their demo units.
Just click on the video window below for a preview of the Chrome OS in action:

Electronic Privacy: A Moderate FTC Attack on Advertisers and Commercial Exploitation of User History Information

Obviously, one of the biggest concerns for a lawyer is the confidentiality of client records and work product.

As recently reported on the Huffington Post, there are a number of major players on the Internet who see it fit to trawl for user information when visiting their sites.  While maybe not a big deal, other than the unwanted hassle of targeted advertising, other sensitive information could be a real problem where one is storing client files on the Cloud or where similar factors present themselves.

While one could say that he/she will never be using the Cloud to store client data, I think the reality is that there may be no realistic alternatives in the future for what we consider to be standard storage now (i.e., hard drives, USB drives, external drives, etc.).  It’s not all bad if we plan now and place a privacy/security infrastructure in place now.

Historically, the confidentiality between the learned professions and those are served by those professions has been largely respected and protected.  Current technology does not eliminate the legitimate public policy concerns underlying these privileges against invasion, disclosure, production, and admission into evidence before a court.  For better or worse, most public policy issues express themselves through the regulatory environment and the creation of a whole new set of laws and restrictions (as though we don’t have enough laws on the books).  This being said, until there is a way of getting people to better behave themselves, we will have to settle for making a complex legal system even more so.

Realistically, I think that we will all eventually end up storing and processing much of our information through services such as Dropbox, Windows Live, Google Docs, RocketMatter.com, and other cloud-based servers.  While it is easy to say that hard storage will never be eliminated, the same could have been said of the cassette tape, VCRs, eight-tracks, zip drives, and a whole host of other tech items that seemed to earn what we thought was a permanent place in our daily lives.  While the main focus on these forms of storage media were related to intellectual property rights, privilege issues have not been widely discussed in the legal field.  It may simply be that lawyers, as a profession, are way behind the technological curve.  However, I am fairly certain that our clients not only expect confidentiality of information, they rightfully demand it.

In a recent review by me of the Rutter Group’s treatise on Professional Responsibility, there was quite a bit of information in the privacy concerns that arise as a matter of professional ethics.  Most of the information related to state bars coming down on lawyers for advertising violations.  There was also a brief discourse on how Facebook and other social networking sites affect bias of the judiciary, public perception, and client confidentiality.  What was not provided was a solution to how attorneys can stay competitive, be environmentally friendly, and how they might protect information in a world of data retention that changes and advances by the day.  Thus, this all becomes an issue about what we are all willing to do in order to protect not only confidential client information, but our own reasonable expectations of privacy in our personal lives as professionals and regular citizens/consumers.

Notwithstanding the privacy concerns within our specific profession, the Federal Trade Commission (FTC) is working on some proposals designed to address the invasions of privacy occasioned by some of the sites specifically mentioned in the Huffington Post article.

In the report, the FTC asserts that, “Companies should incorporate substantive privacy protections into theirpractices, such as data security, reasonable collection limits, sound retention practices, and data accuracy,” and that, “Companies should maintain comprehensive data managementprocedures throughout the life cycle of their products and services.”  There are also a number of practical proposals set out as well:

  • Privacy notices should be clearer, shorter, and more standardized, to enable better comprehension and comparison of privacy practices.
  • Companies should provide reasonable access to the consumer data they maintain; the extent of access should be proportionate to thesensitivity of the data and the nature of its use.
  • Companies must provide prominent disclosures and obtain affirmative express consent before using consumer data in a materially different manner than claimed when the data was collected.
  • All stakeholders should work to educate consumers about commercial data privacy practices.

While I am ordinarily no fan of governmental interference with a Free Market Economy, I must say that I do agree with the conclusion that many of the cooking tracking, user-history exploitation, and unwanted targeted advertising schemes are the product of a lack of education on the part of Internet users.

Moreover, unlike the voluntary decision to go to a store or similar place, the decision to utilize the internet is one that often involves making a connection from one’s private location and the associated plethora of data that rests on our personal or business computers.  As indicated above, this is a huge concern especially for professionals who retain confidential information with respect to their clients.  One can only sadly imagine the potential liability exposure should a marketer get a hold of professional-user information that references specific clients and sensitive data associated with them.

Keeping up on these issues is a must for not only those of us in positions of trust, I strongly believe that there is a legitimate issue of safety that deserves the expenditure of governmental resources for preventative measures and, at a minimum, for the education of those who use the internet.

Noteshelf: No More Yellow Legal Pads for Me !!!

Noteshelf is probably my most used app for taking notes at depositions, trial and client meetings. This app provides a variety of features, including writing, erasing, and the ability to create individual notebooks for each client or matter.

There are a number of formats available for your notes, including one that mimics a regular legal pad. Along with the different notebook formats, you have the choice of many colors of ink and there are symbols/images that you can use for marking up your notes.  In short, the app is incredibly simplistic and best used with a Pogo stylus for Ipad.

The only improvement that I can think of would be handwriting recognition.  However, my handwriting during trial and depositions is so bad that it probably wouldn’t work anyway.  Nevertheless, there are those who might appreciate an improvement such as this.

After writing your notes out, you can e-mail them, put them into a DropBox folder, send them to Evernote, or Itunes.  The app will convert your notes into .pdf files for easy access and viewing by others.   I have been using this app for several months now and give it a 10 out of 10 for what it does.  The simplicity of its function and the easy to understand interface make this app a standout.

Apple Announces New IOS 4.01 for Ipad

http://www.cnn.com/2010/TECH/gaming.gadgets/11/09/ipad.update.software/index.html

In what is anticipated to be a great improvement to the Ipad, Apple has announced that it will be releasing its IOS 4.2 platform.  The new version is supposed to include multi-tasking, folders, and printing capabilities.  There also going to be business enterprise improvements.  According to Apple, “iOS 4 is the world’s most advanced mobile operating system and includes powerful benefits for business. In November, Apple will release an iOS 4.2 software update for iPad, providing business users with additional iPad security enhancements, device management capabilities and improved enterprise integration.”

I cannot say that I am all that excited about the folders option since the folders don’t make it all that easy to immediately view what is in them, unless you remember where you placed every single app. For those of us who are a bit absent-minded when it comes to details like this, having the old interface is probably the better route.  The internal ability to print is a welcome addition though.  As of today, one has to find another app that can assist in the printing process and any particular app may be buggy at best.  For those who spend lunch playing games, Apple is bringing a gaming element that will allow you to play games online with others.

IOS 4.2 sounds like it should be a good update altogether, even though I must say that I am already a very happy customer.  The Ipad has proven to be an excellent aide in trial, great for immediate calendaring, and has proven itself as a good tool for editing/reviewing .pdf documents, Word docs, and photos.

Trial Technology on the IPad – Readdle Docs Handler

After being in trial for several weeks on end, I have had the opportunity to review a number of apps through a ‘trial by fire.’  This review is just one of several upcoming looks at apps used in trial by my office.  One of the outstanding apps to have survived the ordeal was Readdle.  Readdle is a documents editor, organizer and reviewer.  What was particularly good about the app is the ability to easily organize exhibits, put them in a folder, and quickly review them during trial.  In one particular matter, I had about 1500 pages of exhibits and was able to easily flip through them, label them, and coordinate them with the hard copy exhibits in the parties’ binders.  The app is compatible with Rich Text,  Word (.doc) and Acrobat (.pdf) formats.  Truth be known, however, that it does not do well with pleadings done in Word and the highlighting function in .pdf is not the easiest or best out there.  If Readdle could easily convert .pdf files to an image file, like Noterize (which makes highlighting easy on such files), this would be a nearly perfect trial lawyers’ app.  The app works with Dropbox, e-mailing, MobileMe, GoogleDocs, and Safari.  Overall, this is a very good app with lots of potential.  I would recommend this to any lawyer who needs to review txt, doc, pdf files during trials, depos, or just in an everyday context.

Microsoft Office 11 for Mac — Looks Good

Office Mac 2011 is definitely an upgrade from the 2008 version.  Among other things, the user interface has improved dramatically.  The various tools and tabs on the ribbon are useful and intuitive.  In fact, I would claim that the Mac version is better than the Windows version.  I still have to figure out the ribbon UI in Windows and gave up long ago.  One of my favorite additions to the Office Suite is the “Notebook” template, which is very much like the Notebook offering made by CircusPonies.com, without any significant cost differential.  Most of the templates are more on the consumer side and I am looking forward to seeing if my Windows-based pleadings templates will be compatible with the Mac version.  Another key issue will be looking at the ease of being able to insert tables for exhibit lists, witness lists, or for demonstrative courtroom exhibits.  The Powerpoint program seems equally intuitive and the interface is clean and understandable.  Again, the templates are are little simplistic, but easily tailored to meet the needs of a trial lawyer preparing a presentation with use of video clips from a deposition, pdf exhibits, images, and interactive elements. The spreadsheet element of Office is what one would expect and offers a number of good templates, including invoicing, timesheets, and other useful tools for the legal profession.  Finally, I really like the smooth interface between SkyDrive and the Suite.  I have been using SkyDrive or its predecessors for some time and have enjoyed the remote accessibility to my files, especially during trials and travelling.  SkyDrive also makes it easy to share files with clients, which is becoming more important as cloud-based technology develops.  All in all, the suite is just one more reason to justify the transition to Mac as an office tool.  While many of us in the legal world are stuck on Wordperfect, this offering may just be the reason to finally break the chains so that lawyers can more easily interact with clients (most of whom use Word).  I give this new version of Office a 9.5 out of 10.  If there were templates for pleading, I’d give it a 10.  For additional reviews see, TechRadar.com and ZDNet.com.  For an article on whether it’s worth your time, money and effort to upgrade your present office suite, you can see this MacWorld article which does a good job of speaking to this issue.