eDiscovery

shocked billOuting the Biglaw attorney managing your project as callous and mean-spirited is probably not the right strategy for a contractor. Unless, of course, that contractor expects to be living in a van down by the river. Law is a remarkably small world, and these sorts of outbursts have a way of making the rounds — even without ATL getting involved.

On the other hand, through the dry sarcasm of the letter, the contractor’s complaints ring very familiar. It’s hard to blame a lawyer whose dignity is pushed to the limit for a pittance for lashing out.

And at least the parody of a heartfelt farewell is kind of funny….

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Sleeping with DocumentsThey say it ain’t over till the fat lady sings, well, extrapolated to the legal profession: it ain’t over till all appeals have been exhausted. Such is the case of our good friend, contract attorney David Lola. You remember him, he filed suit against Skadden Arps and his staffing agency, Tower Legal, alleging his work as a contract attorney did not rise to the level of the practice of law and as such he was entitled to overtime wages. Last month, his Fair Labor Standards Act case was dismissed by Judge Richard Sullivan finding that the provision of legal services by a lawyer are exempt from federal overtime laws regardless of the nature of the task performed.

Last we heard from Mr. Lola, things were not going well. He’s been blackballed from the industry and living out of his car. Not exactly the result you’d hope for when filing a lawsuit. Well, at least he has his appeal to look forward to.

And what causes lawyers to strike out (via lawsuit) at the law firms that hire them?

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Screen Shot 2014-10-23 at 4.15.58 PMThe beginning of a new business, technology and legal inflection point is staring at us, chuckling at point blank.   The Internet of Things (IoT) has quickly ascended to be the “new frontier” for technology vendors to explore, customers to consider and the legal community to fear.

But what is the “Internet of Things” really?  Depending on who you ask, and who answers… the answer to the riddle appears to be in the shadowy area now linking the once inanimate objects with the animated… and here’s the kicker:  with no human interaction whatsoever.

IoT is a development in which everyday objects such as household appliances, light bulbs, coffee machines, automobiles, personal devices and health devices that have network connectivity, allowing them to send and receive data without the need of human interaction.

Today there are around 10 billion internet connected devices in the world. According to Morgan Stanley, by 2020, there will be 75 billion internet connected devices. This huge projected rise in IoT devices strongly suggests we are at a defining moment in technology history. IoT qualifies as a potential inflection point due to the fact that each individual’s personal digital world will be able to interact with the world in general – autonomously. This independent (machine to machine) communication capability will also generate a great deal more data subject to potential federal oversight, litigation (eDiscovery), and data breaches.

The Rise of the Machines

The rise of the IoT is bringing into focus a complicating and costly problem – eDiscovery and litigation hold. An example of the eDiscovery problem that will crop up sooner rather than later; how would you respond to a discovery request to provide data from potentially relevant corporate IoT devices such as the break room coffee maker or refrigerator, the restroom hand dryer, a company supplied FitBit fitness tracker, individual cubicle printers, and smart office light bulbs?

An issue with the above example is that most of these IoT devices won’t have adequate data storage capacity making eDiscovery of these devices especially time sensitive. Imagine trying to place a litigation hold on the log data for a specific floor section’s smart light bulbs?

The universe of potentially relevant information will increase geometrically complicating an already messy collection and review process. As plaintiff’s attorneys (and government agencies) become educated on the discovery potential for the IoT, organizations will need to proactively plan for a more demanding and invasive eDiscovery environment.

The scope of eDiscovery will have to expand. Instead of corporate legal working with just the IT department for eDiscovery planning and response, they may also have to work with facilities maintenance, property management, food service, and corporate carpool management.

The adoption of IoT poses additional questions that will eventually need to be addressed; will companies demand non-IoT devices to reduce the cost and risk during discovery? Will IoT manufacturers be forced to design IoT platforms that can automatically collect log files/data from all corporate IoT devices and secure them under a defensible litigation hold? How much additional storage will be required to store the IoT data and how long should it be retained?

The Future Begins Now

Both corporate legal departments and law firms should proactively develop an IoT expertise to stay ahead of this new eDiscovery challenge.

For those firms issuing eDiscovery requests, care should be taken to:

  • Build discovery request templates that include all potential IoT discovery targets
  • Train attorneys on the discovery implications/potential of the IoT
  • Purchase systems and expertise to analyze IoT data

For those companies and firms responding to discovery requests, care should be taken to:

  • Create a new discovery policy/plan that includes IoT considerations
  • Understand and map all IoT devices in their organization
  • Put systems in place to automatically capture data from these IoT devices
  • Adopt systems to ensure all IoT data can be quickly found and secured under a defensible litigation hold
  • Create and apply data retention policies for all IoT data
  • Purchase systems that can analyze IoT data
  • Train all affected employees on the importance of eDiscovery and the IoT

The Internet of Everything

The key to eDiscovery in the coming IoT world is to get started now. The IoT is growing quickly and is already catching many organizations unprepared. For those companies and firms that have not yet started to plan for eDiscovery in the IoT, the most effective way to quickly prepare is to partner with a discovery service provider that’s already focused on the potential issues and solutions.

OmniVere provides best-in-class electronic discovery solutions, litigation support & forensics consulting services.  OmniVere continues to lead the way in offering flexible solutions to clients throughout the EDRM lifecycle, including compliance measures and data technology consulting.  To speak to an OmniVere expert today, please click here.

Kenneth Gary is Senior Vice President and Chief Marketing & Communications Officer at OmniVere.  Prior this venture, Mr. Gary was Publisher of The National Law Journal & Legal Times.

R and D signpost

Catchy blog titles are usually hard too, but not this one. Discovery of electronically stored information (“ESI”) is just plain difficult. If you are lucky, it does not come up in your case at all. Or, the parties agree that only certain emails during a certain period of time are relevant to the dispute. If you are unlucky, you might find yourself in the middle of a massive theft of trade secrets case involving customer lists with thousands of names and an email address for each one of them. At that point, expect to spend several months creating an ESI discovery protocol with your opposing counsel – a process of negotiating everything from search terms to custodian/device lists to hard drive/server copying formats, and so on and so forth. Once that part is finished, you still have to engage in discovery according to the protocol.

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Key to successI just read Shannon’s article from last week about solo practice (and the comments, which got pretty weird pretty fast). It was a familiar story. I have been a solo for a little over three years now. There certainly are lawyers who make more money than I make, but for most of the last three years, I have been so busy that I refer away most of the cases that come my way. I have watched a lot of my lawyer friends who have different personalities and different skills meet the legal market with varied success. Here’s what I have learned as a solo, as someone who has worked in a firm, and as an employer:

Understand That No One Owes You Anything

I went to a top-ranked university for undergrad. I got into the highest-ranked law school in my area so that I could keep my part-time job at a 200-lawyer law firm. I felt poised to make good money as a lawyer. After law school, I went to work for a small but successful business litigation firm. It was successful because my boss understood that the practice of law is still a business. When I passed the bar, I came into the office Monday morning and had a talk with my boss about how much more money he was going to have to pay me now. His response was that he was not going to pay me anything more at all because my value to him had not changed. I quit a few weeks later and opened up my own practice, using that talk as one of the foundations of my practice.

Let me explain….

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NFL_logo* NFL blackout rules will be a thing of the past on November 24. So just in time for all you rabid Rams fans to watch them play the Raiders. [CommLawBlog]

* Electing judges is so very stupid. [What About Clients?]

* OK, Alex Rich: it’s time to ditch document review and become a psychic. [Law and More]

* A tumblr of offensive stuff overheard at Yale Law. If these are true, then that place sounds horrible. [The YLS Offensive]

* Exactly where is the Arctic National Wildlife Refuge? It turns out the government doesn’t really even know. They’re looking to shift the border and possibly allow more oil drilling. [Breaking Energy]

* How to get your Biglaw career right from the beginning. [Medium]

Attractive businesswoman holds magnifying glass, isolated

In Pennsylvania, testifying experts usually are not deposed before trial; typically, their written reports are provided in advance of trial and delineate the substance and scope of their testimony. Attorneys often wish to communicate with their client’s expert and comment on drafts of the reports. Until April 2014, the law was not clear whether these communications were discoverable. This uncertainty made it problematic and potentially perilous for a party’s attorney to communicate with the party’s testifying expert, particularly in advance of the disclosure of the expert’s report. In Barrick v. Holy Spirit Hosp. of the Sisters of Christian Charity, No. 2014 WL 1688447 (Pa. Apr. 29, 2014), the Justices of the Supreme Court of Pennsylvania took up the issue of the discovery of attorney-expert communications and split 3-3. This left intact the Superior Court’s bright-line rule preventing discovery of attorney-expert communications—a rule now to be applied by Pennsylvania trial courts.

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Alito* That didn’t take long. John Oliver’s Supreme Court dogs have already been used to recreate Hobby Lobby. The entire Hobby Lobby argument. [Above the Law]

* Squire Patton Boggs is representing the pharmaceutical company promoting Ebola drugs. Or, as CNN would put it, EVERYONE AT SQUIRE PATTON BOGGS HAS EBOLA!!!! [Law and More]

* China Central Television advises citizens not to name themselves “Lawyer.” Good advice. [CCTV News]

* Slate posits that appealing gay marriage decisions to the Supreme Court may violate Rule 11. They’re wrong, but that’s what they’re positing. [Slate]

* Dr. Ruth is incredibly impressive. Next time you complain about the job market, try moving somewhere with no understanding of the language and getting your own TV show. [What About Clients?]

* Documentary about eDiscovery going on a six-city tour. This way other people can understand how much it sucks to do document review. [Bloomberg BNA]

* UC Hastings students are protesting their own graduation. [Change.org]

* Judges are an autocratic lot, and as long as we inflate the criminal justice system, many of them will be subpar and autocratic, which is an unfortunate combination. [Katz Justice]

* A man arrested for a carjacking and shooting up an apartment last week is — per our sources — a law student at Florida Coastal. Probably testing out the Crim issue spotter. [News4Jax]

* Are lawyers the new dentists? Or something like that. [TaxProf Blog]

* Man attempting suicide by cop told detectives he’d wanted to be killed and was disappointed in the officers’ marksmanship. [Seattle Times]

ediscovery

The California Court of Appeal recently provided rare guidance regarding a third party’s obligations to produce electronically stored information (ESI) in response to a subpoena. In Vasquez v. California School of Culinary Arts, Inc. (Sallie Mae) (August 27, 2014, B250600) Cal.App.4th (2014 WL 4793703), the court defined subpoenaed parties’ obligations to extract existing data from computer systems and upheld an award of attorneys’ fees against the recalcitrant third party. The court concluded that it is unreasonable for a third party to withhold ESI that exists in its computer systems on the basis that outputting the ESI entails creating a “new” spreadsheet.

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Gavel

On July 14, 2014, the Court in United States v. University of Nebraska at Kearny (No. 4:11CV3209) took a significant step in support of Federal Rules 1 and 26. Magistrate Judge Cheryl R. Zwart denied plaintiff’s motion to compel defendants to use plaintiffs’ proposed search terms to cull electronically stored information (ESI) for review and production. The Court’s order effectively discharged defendants’ obligation to produce any ESI. And the Court issued this order notwithstanding both that 1) the parties had agreed to a stipulation summarizing protocol for the production of ESI shortly after the outset of the case, and 2) plaintiff previously produced ESI as part of its production to defendants’ discovery requests. In short, plaintiffs’ unwillingness to fairly compromise as to the breadth of search terms aimed at reasonably limiting the scope of ESI production came back to bite.

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It’s officially fall, and beyond the brisk temperatures and ubiquitous pumpkin spice lattes, that means there’s a new crop of television shows all vying for our attention. This season there seems to be a higher rate of shows that use the law or lawyers as a backdrop for the drama, but few have received as much attention (and as many positive reviews) as the Shonda Rhimes/Viola Davis joint effort, “How To Get Away With Murder.” And it makes sense; ABC has pretty much gone all in on Shonda Rhimes as their personal lord and saviour, and the talented Viola Davis has joined the flock of film actresses who’ve decided the best roles are now on the small screen.

But until now I’ve resisted the the urge to watch. I mean, the show is loosely (very, very loosely) based on attending Penn Law and now that it’s over, who really wants to revisit law school? However, when bad weather and a lingering cold conspire to keep me at home all weekend, the siren call of the On Demand listing just proved too much for me to resist…

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