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Ethics

Should Judges Have an Explicit Technical Competence Requirement?: eDiscovery Trends

Since the American Bar Association revised the Model Rules of Professional Conduct for lawyers in 2012 to add technology competence to their duty to be competent in the law and its practice, there have been 36 states that have adopted that Model Rule.  How do I know that?  Because Bob Ambrogi keeps track of that on his LawSites blog here.  But, what about judges?  Shouldn’t they have an explicit technical competence requirement as well?

As Bob notes in his latest article in Above the Law (It Is Time To Extend The Duty Of Tech Competence To Judges), it was 2012 when the ABA amended Comment 8 to Model Rule 1.1, which pertains to competence, to say that lawyers have a responsibility to keep abreast of changes in law and practice, “including the benefits and risks associated with relevant technology.”  And, just as there is a model code of conduct for lawyers, there is a corollary model code of conduct for judges. That code, however, contains no parallel duty of technology competence for judges, at least not explicitly. And, despite the fact that most states also have codes of judicial conduct, none of those state codes appears to explicitly require technological competence for judges either.

Bob notes several ways that a judge’s responsibilities intersect with technology, including: ruling on issues of evidence and discovery involving digital sources (obviously, we’ve covered a lot of those on this blog), deciding cases involving issues of technology and ethically using technology and social media in their own professional and personal lives (we’ve touched on that too, including this recent case that we covered where a decision was reversed, based on a judge accepting a Facebook friend request from a party involved in a case in his courtroom).

Bob also cited the 2019 judges survey conducted by Exterro and EDRM/Duke Law which asked federal judges whether they are satisfied with their level of knowledge of eDiscovery technology and practices. Of the 260 judges who responded, less than a third said they require no additional training or education.  In other words, most feel they need to understand it better.

Would an explicit duty to be competent in technology help?  Well, it couldn’t hurt.  While it could be argued that there are plenty of lawyers who still don’t understand technology very well, there are certainly more that do now, possibly due (in part) to the technology ethical requirement.  At least they seem more interested in attending technology-related CLE courses than they used to be, at least the ones we offer.

Since the Model Code of Judicial Conduct was adopted by the House of Delegates of the American Bar Association in August 1990, the longest it has ever gone without being updated is about seven years (from the original Model Code to the first amended version in 1997).  Until now, where it hasn’t been updated since August 2010 (closing in on nine years since the last update).  When you consider how much technology has changed during that time, it’s amazing.  So, it’s possibly overdue for any type of update.  When they do update it next, they will hopefully address technology competence at that time.

Also, just a reminder that CloudNine will be the Scarlett sponsor of the Murder in the Manor charity fundraiser hosted by Oasis Discovery to be held May 16th at The Mansion on O Street in Washington DC (2020 O Street NW, Washington, DC 20036).  CloudNine will be running the Speakeasy, where drinks will be available and a lot of fun will be had.  And, all proceeds from the event will benefit the Capital Area Food Bank (CAFB), which is the largest public, non-profit hunger and nutrition education resource in the Washington Metropolitan Area.  Click here for more information and to purchase your tickets.  Remember, it’s for a great cause.

So, what do you think?  Do you think judges, like lawyers, need an explicit technical competence requirement as well?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Ready for In-Depth eDiscovery Training? Head to Georgetown: eDiscovery Best Practices

There are training courses and there are training courses, but there is no more in-depth eDiscovery training course than the Georgetown Law Center eDiscovery Training Academy.  Once again, it is coming up in just over a month.  And, if you hurry, you can save on registration!

The Academy’s full-week curriculum is intended to give you a “total immersion” in the subject of eDiscovery, featuring a highly personalized and interactive instructional approach designed to foster an intense connection between all students and a renowned faculty.  And, it has been designed by experts to be a challenging experience leading to a comprehensive understanding of the discipline. As the Academy summary notes, it is demanding, but it will be one of your most exciting and successful learning experiences if you are determined to invest the time and effort.

Renowned faculty?  Check.  How about people like Craig Ball, Maura Grossman, Mark Sidoti, Tom O’Connor, Hon. John M. Facciola (Ret.) and Virginia Magistrate Judge Hon. John Anderson?

Total immersion?  Check.  How about topics ranging from Introduction to Electronically Stored Information to Proportionality to Ugly Truths about Electronic Search to Meet and Confer Strategies?  There’s also Authentication and Admissibility, Forms of Production, Preservation and Sanctions and Technology-Assisted Review (“TAR”) for eDiscovery.  Even Mobile Data Preservation, Rule 502 and Ethics.  With plenty of exercises to test your knowledge and Mock 26(f) Conferences on the last day.  And, there is CLE credit to boot!

Here’s a link to the complete agenda for the Academy.

The Academy runs from Sunday, June 2, 2019 to Friday, June 7, 2019 at the Georgetown University Law Center, 600 New Jersey Ave NW, Washington, DC 20001.  With regard to the cost for participating, the Regular Registration price is $3,650 for the entire week; however, if you register by tomorrow, it is discounted to $3,450.  If you’re Georgetown Law Alumni ($3,150) or a Government employee ($2,650), it’s even cheaper – for a full week of instruction.  Scholarships can also be requested by Monday, May 13.  If you want to achieve “total immersion” in all educational topics eDiscovery – this is the place to do it!

So, what do you think?  Have you attended the Georgetown Law Center eDiscovery Training Academy in the past?  If so, what did you think of it?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Judge’s Facebook Friendship with Party Causes Decision to Be Reversed and Remanded to Different Judge: eDiscovery Case Law

In the case In Re the Paternity of B.J.M., Appeal No. 2017AP2132 (Wis. App. Feb. 20, 2019), the Court of Appeals of Wisconsin, concluding that “the circuit court’s undisclosed ESM connection with a current litigant in this case {by accepting a Facebook “friend” request from the litigant} created a great risk of actual bias, resulting in the appearance of partiality”, reversed and remanded the case for further proceedings before a different judge.

Case Background

In this case where the parties entered into an order granting parties Timothy Miller and Angela Carroll joint legal custody and shared physical placement of a minor child in 2011, Carroll filed a motion to modify the court order on the basis that Miller had engaged in a pattern of domestic abuse against Carroll. After the parties had submitted their written arguments, the judge deciding the motion – Judge Michael Bitney – accepted Carroll’s friend request on Facebook. Subsequently, Carroll “liked” eighteen of Judge Bitney’s Facebook posts and commented on two of his posts – none of which related to the pending litigation.  Judge Bitney did not “like” or comment on any of Carroll’s posts, nor did he reply to any of her comments on his posts; however, Carroll’s other activities (“liking” multiple posts from other parties and “sharing” one third-party photograph) did appear on Judge Bitney’s “newsfeed.” One of these shared stories related to domestic violence.

On July 14, 2017, Judge Bitney issued a decision granting Carroll’s modification motion. After the decision, Miller learned that Judge Bitney and Carroll were Facebook friends during the period prior to making his ruling, and moved to reconsider the judge’s decision.  At a hearing on Miller’s motion, Judge Bitney confirmed that he had accepted Carroll’s friend request after the custody hearing and before rendering his written decision. However, he concluded he was not subjectively biased by accepting Carroll’s “friend” request, because he already “had decided how I was going to rule, even though it hadn’t been reduced to writing.” Further, he concluded that “[e]ven given the timing of” his and Carroll’s Facebook connection, the circumstances did not “rise[] to the level of objective bias. . . .” Consequently, he denied Miller’s motion. Miller appealed the decision.

Court’s Ruling

In an opinion written by Justice J. Seidl, he noted that “This case involves what appears to be an issue of first impression in Wisconsin: a claim of judicial bias arising from a judge’s use of electronic social media (ESM)” and stated that “we need not determine whether a bright-line rule prohibiting the judicial use of ESM is appropriate or necessary”.  He also referenced a New Mexico supreme court in Thomas as “particularly instructive”, which said:

“While we make no bright-line ban prohibiting judicial use of social media, we caution that ‘friending,’ online postings, and other activity can easily be misconstrued and create an appearance of impropriety… A judge’s online ‘friendships,’ just like a judge’s real-life friendships, must be treated with a great deal of care.”

The opinion also stated that “the time when Judge Bitney and Carroll became Facebook ‘friends’ would cause a reasonable person to question the judge’s partiality. Although Judge Bitney apparently had thousands of Facebook ‘friends,’ Carroll was not simply one of the many people who ‘friended’ him prior to this litigation. Rather, Carroll was a current litigant who reached out to Judge Bitney and requested to become his Facebook ‘friend’ after testifying at a contested hearing, at which Judge Bitney was the sole decision-maker. Judge Bitney then took the affirmative step to accept this ‘friend’ request before issuing his decision in this case…This timing creates a great risk of actual bias and a resulting appearance of partiality because, even assuming that a Facebook ‘friendship’ does not denote the type of relationship traditionally associated with the term ‘friendship,’ it is unquestionably evidence of some type of affirmative social connection…Carroll’s choice to send a ‘friend’ request to Judge Bitney, combined with Judge Bitney’s choice to accept that request before issuing his decision, conveys the impression that Carroll was in a special position to influence Judge Bitney’s ultimate decision – a position not available to individuals that he had not ‘friended,’ such as Miller.”

As a result, the court reversed and remanded the case for further proceedings before a different judge.

So, what do you think?  Should judges accepting friend requests from litigants disqualify them from ruling in their cases?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Hat tip to Sharon Nelson’s Ride the Lightning blog for coverage of this case.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Tomorrow is the U-Fla E-Discovery Conference!: eDiscovery Best Practices

Usually, I remind you the day of a conference about it, but this one is big enough that I want to give you more time to register – at least for the livestream.  Believe it or not, tomorrow is the seventh annual University of Florida E-Discovery Conference.  And, as usual, the panel of speakers is an absolute who’s who in eDiscovery.

The conference focus this year is effectively managing discovery from the opposition. As they state on the site: “The opposition often holds the keys to the case. How can you make sure you get the documents you are entitled to? How can you assure that the opposition is doing the best job identifying, collecting, searching and producing requested documents.”

The conference is tomorrow from 8am to 6pm ET.  And, again this year, U-Fla will also be hosting CareerFest the day before (which is today!) at noon ET.

As you can always expect from the U-Fla conference, there are a veritable plethora of experts, including Craig Ball, George Socha, Aaron Crews, Scott Milner, Kelly Twigger, Tessa Jacobs, David Horrigan, Canaan Himmelbaum, Suzanne Clark, Mike Dalewitz, Mike Quartararo, and Ian Campbell.  And, a bunch of distinguished federal and state judges, including U.S. Magistrate Judges William Matthewman, Mac McCoy, Patricia Barksdale, and Gary Jones and retired Florida Circuit Court Judge Ralph Artigliere.

I will be there again as well, presenting in the E-Discovery Nuts and Bolts session.  The topic is Why Waiting Until the Case is Filed May Now be Too Late for Discovery!

I’ll be discussing the drivers and challenges (such as #MeToo, growing data privacy concerns with GDPR and the pending California Privacy Act) facing organizations today to understand their data better to avoid litigation in the first place and discuss where discovery is heading in the future.  Expect a lot of interesting (if not sobering) stats!

From what I understand, unless you’re a student, the conference is sold out in person!  (Maybe you’d better act earlier next time if you want to attend in person!)  But, livestream attendance is still available – and it’s still only $99 for a whole day of CLE-accredited education from a who’s who of eDiscovery experts.  And, it’s free to university and college faculty, professional staff, judicial officials, clerks, and employees of government bodies and agencies.  To register for livestream attendance, click here.

So, what do you think?  Are you going to attend the conference in person or via livestream?  There’s still time to register!  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

The March Toward Technology Competence (and Possibly Predictive Coding Adoption) Continues: eDiscovery Best Practices

I know, because it’s “March”, right?  :o)  Anyway, it’s about time is all I can say.  My home state of Texas has finally added its name to the list of states that have adopted the ethical duty of technology competence for lawyers, becoming the 36th state to do so.  And, we have a new predictive coding survey to check out.

As discussed on Bob Ambrogi’s LawSites blog, just last week (February 26), the Supreme Court of Texas entered an order amending Paragraph 8 of Rule 1.01 of the Texas Disciplinary Rules of Professional Conduct. The amended comment now reads (emphasis added):

Maintaining Competence

  1. Because of the vital role of lawyers in the legal process, each lawyer should strive to become and remain proficient and competent in the practice of law, including the benefits and risks associated with relevant technology. To maintain the requisite knowledge and skill of a competent practitioner, a lawyer should engage in continuing study and education. If a system of peer review has been established, the lawyer should consider making use of it in appropriate circumstances. Isolated instances of faulty conduct or decision should be identified for purposes of additional study or instruction.

The new phrase in italics above mirrors the one adopted in 2012 by the American Bar Association in amending the Model Rules of Professional Conduct to make clear that lawyers have a duty to be competent not only in the law and its practice, but also in technology.  Hard to believe it’s been seven years already!  Now, we’re up to 36 states that have formally adopted this duty of technology competence.  Just 14 to go!

Also, this weekend, Rob Robinson published the results of the Predictive Coding Technologies and Protocols Spring 2019 Survey on his excellent Complex Discovery blog.  Like the first version of the survey he conducted back in September last year, the “non-scientific” survey designed to help provide a general understanding of the use of predictive coding technologies, protocols, and workflows by data discovery and legal discovery professionals within the eDiscovery ecosystem.  This survey had 40 respondents, up from 31 the last time.

I won’t steal Rob’s thunder, but here are a couple of notable stats:

  • Approximately 62% of responders (62.5%) use more than one predictive coding technology in their predictive coding efforts: That’s considerably higher than I would have guessed;
  • Continuous Active Learning (CAL) was the most used predictive coding protocol with 80% of responders reporting that they use it in their predictive coding efforts: I would have expected that CAL was the leader, but not as dominant as these stats show; and
  • 95% of responders use technology-assisted review in more than one area of data and legal discovery: Which seems a good sign to me that practitioners aren’t just limiting it to identification of relevant documents in review anymore.

Rob’s findings, including several charts, can be found here.

So, what do you think?  Which state will be next to adopt an ethical duty of technology competence for lawyers?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

It’s Never Too Early to Start Talking About the U-Fla E-Discovery Conference Here’s Why: eDiscovery Best Practices

Believe it or not, this is the seventh year for the University of Florida E-Discovery Conference.  As usual, the panel of speakers is an absolute who’s who in eDiscovery.  And, if you act quickly you can save as much as 75% to attend!

The conference focus this year is effectively managing discovery from the opposition. As they state on the site: “The opposition often holds the keys to the case. How can you make sure you get the documents you are entitled to? How can you assure that the opposition is doing the best job identifying, collecting, searching and producing requested documents.”

The conference this year is on Thursday, March 21 from 8am to 6pm ET.  Again this year, U-Fla will also have CareerFest the day before (March 20) at noon ET.

As you can always expect from the U-Fla conference, there are a veritable plethora of experts, including Craig Ball, George Socha, Aaron Crews, Scott Milner, Kelly Twigger, Tessa Jacobs, David Horrigan, Canaan Himmelbaum, Suzanne Clark, Mike Dalewitz, Mike Quartararo, and Ian Campbell.  And, a bunch of distinguished federal and state judges, including U.S. Magistrate Judges William Matthewman, Mac McCoy, Patricia Barksdale, and Gary Jones and retired Florida Circuit Court Judge Ralph Artigliere.

I will be there again as well, presenting in the Special Topics: E-Discovery Nuts and Bolts session.  Topic to be determined, but I’ll come up with something good! (I hope)…  :o)

Normally, it’s only $199 for the entire day in person and only $99 for livestream attendance.  And, members of the 8th Judicial Circuit Bar Association, ACEDS and other Friends of the conference are eligible to receive a discounted rate.

BUT…

Until January 31st, early bird registration is open for $49 for both in person or livestream.  Just $49!  That’s 75% off the in-person price!  If you live in Florida reasonably near Gainesville, there’s no better time to register and attend!  Even if you’re thinking of attending the livestream, that’s half price as well.  That’s beyond a bargain.

You can register here to attend, either in person or via livestream.  Do it quickly and save!

So, what do you think?  Are you going to attend the conference in March?  If so, now’s the time to register!  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Hewlett-Packard/Autonomy Deal Results in More Indictments: eDiscovery Trends

There continues to be more legal fallout from the Hewlett-Packard (HP) 2011 acquisition of Autonomy (which we covered here) and HP’s allegations that there were “serious accounting improprieties, disclosure failures and outright misrepresentations at Autonomy” before the acquisition (which forced HP to take an $8.8 billion charge in 2012.  Then, earlier this year, former Autonomy CFO Sushovan Hussain was convicted of 16 counts of wire and securities fraud related to the $10.3 billion transaction.  Now, more indictments have been handed down.

According to Bloomberg (Ex-Autonomy CEO Michael Lynch Indicated for Fraud Tied to 2011 HP Deal, written by Joel Rosenblatt), Michael Lynch, the former CEO of Autonomy, stepped down Friday as an adviser to U.K. Prime Minister Theresa May after he was charged with fraud in the U.S.  Prosecutors had long identified Lynch, 53, as a co-conspirator with Hussain.  The indictment, filed in San Francisco federal court, also names 46-year-old Stephen Keith Chamberlain, who was Autonomy’s vice president for finance, as a defendant. Lynch and Hussain also face a $5.1 billion civil case filed by HP in London.  Autonomy was the U.K.’s second-largest software business at the time.

Lynch used false and misleading statements from 2009, 2010 and early 2011 “to make Autonomy more attractive to a potential purchaser like HP,” according to the indictment, which says Lynch made $815 million when HP acquired his Autonomy shares.

Lynch’s lawyers called the indictment a travesty, saying it shouldn’t have been brought in the U.S. as it “targets a British citizen with rehashed allegations about a British company regarding events that occurred in Britain a decade ago.” They said the U.S. is making Lynch a “scapegoat” for HP’s “long history of failed acquisitions.”  But, Hewlett Packard Enterprise Co. (which was formed in the breakup of HP’s corporate computing divisions from its printer and PC business in 2015) praised the indictment.  “HPE believes that the facts uncovered during the course of this matter will further demonstrate the harm that was caused by Dr. Lynch, Mr. Chamberlain, Mr. Hussain and others to HP,” spokesman Emmanuel Fyle said in an email.

The charges were filed as lawyers representing Invoke Capital, a London-based venture capital firm founded by Lynch, are resisting a court order requiring Hussain to disclose details about his financial dealings with Lynch that prosecutors said raise concerns about “potential hush money.” Hussain, whose sentencing date was postponed, was required to disclose his stake, with Lynch, in Invoke and startup company Darktrace Ltd.

The government has argued that Lynch’s reassembling of his Autonomy inner circle at the new firm, including Hussain, isn’t illegal by itself but may have created financial relationships that prevented some of those people from coming forward as witnesses.

It certainly appears that the fallout from this 2011 acquisition will continue for some time to come.

So, what do you think?  Will we see an eDiscovery deal like that again?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Today, You Can Help The “Luddite” Lawyer Learn to Embrace Technology: eDiscovery Webcasts

Even if that “Luddite” lawyer is you… :o)

Technology Assisted Review (TAR) has been court approved for nearly seven years now and other technologies and approaches have been proven to save time and money while even improving quality within the discovery process. Yet, many lawyers still have yet to embrace these new technologies and approaches. Why, and what needs to happen to change things?  Today’s webcast will take a look at what needs to happen to help the “Luddite” legal professional learn to embrace technology.

Today at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast The “Luddite” Lawyer: Will Lawyers Ever Embrace Technology?. In this one-hour webcast that’s CLE-approved in selected states, we will discuss a lawyer’s ethical duty to understand technology, how to address today’s challenges and embrace approaches for addressing those technologies, pertinent case law regarding the use of technology and resources for more information. Topics include:

  • Ethical Duties and Rules for Understanding Technology
  • Addressing Discovery of Various Sources of ESI Data
  • Understanding the Goals for Retrieving Responsive ESI
  • Considerations and Challenges for Using Technology Assisted Review
  • Considerations for Form of Production
  • Key Case Law Related to Technology Challenges
  • Resources for Expanding Your Technical Expertise
  • Recommendations for Becoming Technology Competent
  • Resources for More Information

As always, I’ll be presenting the webcast, along with Tom O’Connor.  To register for it, click here.  Even if you can’t make it, go ahead and register to get a link to the slides and to the recording of the webcast (if you want to check it out later).  If you want to learn how to become competent working with the latest technologies, this webcast is for you!

So, what do you think?  Are you a technology “Luddite” or do you work with one?  If so, please join us!  And, as always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Will Lawyers Ever Embrace Technology?: eDiscovery Best Practices, Part Five

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, eDiscovery Project Management from Both Sides, which we covered as part of a webcast on October 31.  Now, Tom has written another terrific overview regarding the state of lawyer adoption of technology titled Will Lawyers Ever Embrace Technology? that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into five parts, so we’ll cover each part separately.  Part one was published on November 16, part two was published last Monday, part three was published last Tuesday and part four was published yesterday.  Here’s the fifth and final part.

What can we do to Help Lawyers become Technologically Proficient?

What is the solution moving forward?? Well as I said above, “read the rule book shankapotomous.”. Get educated. Go to conferences and CLE sessions. Help promote more education.  Once again Craig Ball is more eloquent than I am when he ventures “Evidence is digital.  That’s not changing.  Embrace the inevitable.  We don’t need conferences to mourn the passing of paper.  We need Manhattan Projects to educate lawyers about ESI.”

And, so we return to a recurrent theme among ED commentators. We need not just better but far more education.  That is the best way to reduce ED costs.

But I’ll also offer my 10 Tips for Working with eDiscovery. This may be a good checklist for you in moving forward.

  1. Read the Rules: The Federal Rules of Civil Procedure lay out the framework for your obligations in handling e-discovery and differ in several aspects from traditional discovery rules. In addition, your state may have its own ED rules which differ from the FRCP.  You need to understand the procedural requirements for the various jurisdictions where you may have litigation arise so start here.
  2. Read the Decisions: Federal judges, notably Facciola, Grimm and Waxse, have spent considerable time issuing opinions which give details on interpreting and implementing the Federal rules. Reading these decisions is essential to understanding how to handle eDiscovery so start with a good book on ED basic then read a good case update blog, preferably one which has an RSS feed.
  3. Know the Terms: eDiscovery isn’t rocket science but it is technical in nature. But you learned the Rule against Perpetuities in law school so believe me you can handle this.  Judges do not want to waste time settling arguments between attorneys who don’t know the difference between a PST and an MSG file so get a good ED glossary (the Sedona Conference has one) and make sure you know all the terms.
  4. Know Where Your Data Is: You can’t find it to identify, collect and preserve if you don’t know where it is. So, get with your client’s IT folks and make a map of their network with locations, custodians, OS and applications lists and descriptions of data amounts.  Why? Because a map shows us how to go places that we haven’t been before without getting lost.  Plus, they are incredibly useful in court to show a judge the complexity of your data collection problem.
  5. Talk to The IT Department: They know how to make the map. You’re Lewis and Clark, they’re Sacajawea. You cannot…absolutely cannot…navigate without them.
  6. Talk to The Records Management People: Records Management is the flip side of the eDiscovery coin and your clients RM staff can help avoid the need to waste time and money restoring backup tapes that don’t contain relevant data. Wait, your client DOES have a Records Management Policy, right?
  7. Make a Records Management Policy: Good records management will save time and money when clients have to collect data and will help avoid sanctions when you have to explain to a judge why some documents are no longer available because they were deleted in the ordinary course of business by the records retention policy.
  8. Make A Litigation Hold Policy: Every client needs to have a clear and concise litigation hold policy to deal with procedures for data retention when the litigation hold letter arrives. And it will.
  9. Enforce the Litigation Hold Policy: Repeat after me: “repeatable, defensible process”. Don’t put the lit hold policy in a manual that just goes on the shelf. This is the biggest mistake you can make and more cases are lost here than in any other phase of electronic discovery. Your opponent marks up a motion for sanctions, you say “but Your Honor, we have a lit hold policy” and the judge says “show me how you implemented it in this case.” And you can’t.
  10. Meet with Your Client’s Inside Counsel: Why? To discuss all of the above. They will need to understand, and be able to explain, all of it in order to work with you. And you need to be sure they can do exactly that.

Finally. let me leave you with a word of caution. As much as we talk about technology and its importance, keep in mind that technical understanding is the underpinning of legal competence.  eDiscovery is still discovery.

The ultimate solution to the eDiscovery quandary is more than just knowing the rules, avoiding e-jargon and understanding the technology. The fact is that eDiscovery is a process comprised of separate distinct stages, any one of which may have specific software available for that stage. In my estimation, true technical competence means knowing the technological underpinnings of each of those steps and then understanding the best process for making them all work together.

It is the process not the technology that is the ultimate key. As my colleague John Martin has said for years, “it’s the archer not the arrow”.

So, what do you think?  Do you think that lawyers are where they need to be in becoming technologically proficient?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Will Lawyers Ever Embrace Technology?: eDiscovery Best Practices, Part Three

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, eDiscovery Project Management from Both Sides, which we covered as part of a webcast on October 31.  Now, Tom has written another terrific overview regarding the state of lawyer adoption of technology titled Will Lawyers Ever Embrace Technology? that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into five parts, so we’ll cover each part separately.  Part one was published last Friday and part two was published yesterday.  Here’s the third part.

How Can We Change the Situation?

To begin to answer that question, let’s take a look at the ethical obligation that lawyers have to be technically competent and the state of technology education for lawyers today.

a. Technical Competence

First let’s acknowledge that we have an ethical obligation to be technically competent. Perhaps we always did. As one of my good friends in the Louisiana Bar Association pointed out to me when I asked why the LSBA hadn’t produced a specific rule for such a duty, “well we always just assumed it was just part of the general duty of competence. We didn’t issue that sort of rule when the telephone came out, or the fax machine, or the telegraph or the car. We figured the benefits of technology were both necessary AND apparent.”

And certainly at least one judge has felt this way for quite some time. In Mancia v. Mayflower Textile Services Co., Judge Paul Grimm used a detailed examination of Rule 26(g), Fed. R. Civ. P., which requires every discovery disclosure, request, response or objection be signed by an attorney of record. The signature “certifies that to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry,” the request is reasonable and the disclosure is complete and correct. In Judge Grimm’s opinion, he calls Rule 26(g) is “the least understood or followed of the discovery rules.” and he clearly states that much of the blame for high priced e-discovery costs lies here. Not following a clearly defined ethical duty. Or as I once wrote, hey shankapotamous, read the rule book.

But even so, in 2012 the ABA issued a model rule on the issue in its Model Rules of Professional Conduct and, so far, 32 states have adopted a similar rule. You can read more about that on Bob Ambrogi’s LawSites blog site here.

b. Education

But what do we do to gain technical competence. How do we become what Craig Ball has called Homo Electronicus?

Certainly, we can do so, right? We’re lawyers. We’re smart. We can do things.

Well, not if law schools have anything to say about it. Browning Marean and I spent years trying to begin a law school curriculum that included computer education with no success. Why? Because legal education still has its own old paradigm. The one that working with a keyboard is not “professional” and is best done by support staff and hourly employees. You know, secretary types.

We were actually told by the dean of one leading law school when we spoke to him about a legal technology training initiative, “We train architects, not carpenters.”

Great attitude Dean. You might want to tell those architects that they don’t have to use slide rules any longer.

And that’s the second part of the problem. Even with schools that have begrudgingly started eDiscovery courses. (And the number of those being taught by full time faculty as part of the standard curriculum can be counted on … ok, two hands) But the threshold question here is not knowledge of eDiscovery technology, it’s the lack of the most basic computer technical knowledge.

Because where many people commenting on this subject see it as a parable for why we should be using concept searching in eDiscovery matters I see it just another example of attorneys caught in the old paradigm of working with paper documents and being totally unaware of the most basic technical concepts. Law students need a good case book on eDiscovery, sure but first they need a discussion about technology in general. Some commentators say this isn’t really necessary because the new generation is computer savvy. Well maybe.  If by tech savvy you mean they can check email and do legal research. But even if they are tech savvy, they are still the new generation. What about the NOW generation?

What can we do about it?  Judge Facciola once suggested some form of national technology competency standards. Seem like fanciful speculation? Well, remember that all bankruptcy practitioners must take a 2-hour course in the ECF system before they can file documents because electronic filing of documents is required in all bankruptcy courts. Why then could courts not institute a similar requirement before they allow an attorney to file a motion involving eDiscovery?

Some Judges have indeed adopted local rules to that effect but the lack of action by law schools and bar associations is the real failing here. Heck, if an eDiscovery question started appearing on bar exams, you be darn sure law schools would start teaching it.

We’ll publish Part 4 – What are Some Good Resources to Help Lawyers Improve their Technology Expertise? – next Monday.

So, what do you think?  Do you think that lawyers are where they need to be in becoming technologically proficient?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Happy Thanksgiving from CloudNine!

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.