Monthly Archives: July 2015

California Lawyer, eDiscovery California, Education, Implementation, Law Practice Management, Strategy, Technology

Guest Post – Peter N. Brewer: LegalTech – Day Two

Peter Brewer Caricature

I think this is the first time I've ever done this on the blog, but immediately following LegalTech, I had to leave for a trip.  However, Peter Brewer, my trusty colleague from the Law Practice Management & Technology Section, was kind enough to write up a guest-post about his experience this year.

<<< I leave it to you to determine which image to my left is the real Peter Brewer:

"The ALM LegalTech West Coast event, historically always venued in the Los Angeles area, was held instead this year in San Francisco at the Hyatt Regency on July 13 and 14. As in the past, the event consisted of keynote sessions, seminars, and importantly, a large vendor exhibit area. The first day had five seminar tracks running consisting of; corporate legal operations, information governance, advanced IT, the cloud and mobile technology, and E discovery. The second day the tracks were four in number and consisted of; information governance, E discovery, information technology, and corporate counsel perspectives. 

I attended only the second day, which kicked off with an interesting discussion of the Ellen Pao versus Kleiner Perkins Caufield Byers case. On the panel were two reporters who covered the trial, and the defense attorney, Lynne C. Hermle, from Orrick Herrington and Sutcliffe. The plaintiff’s attorney, Alan B. Exelrod, of Rudy, Exelrod, Zieff & Lowe, had been scheduled to be on the panel but had to withdraw due to a scheduling conflict. This keynote proved to be a lively hour of informal discussion in which Lynne Hermle gave substantial credit to the jury for their thorough and diligent evaluation of the evidence. 

The keynote was followed by seminar sessions throughout the day, with ample breaks to visit the vendor exhibit hall.  I attended one of the seminar sessions on E discovery, “Every day E discovery: Bringing It In-House or Outsourcing It.” The panelists were knowledgeable; they consisted of an independent consultant, a claims manager, a partner from the major law firm, and a representative of Lexis-Nexis. The discussion was lively, but for my tastes it was a broad overview with much discussion of the concepts but very little grass-roots, take-home practical advice. I came away feeling that the discussion had been thoughtful, but with no better sense of, “where do I start,” or “what are my first steps when I get back to the office.” 

I also attended a session on cyber security. Again, the panelists were well qualified and knowledgeable. The discussion included such things as the availability of data breach insurance, engaging outside consultants to do cyber security audits of your business, and a general, high-level discussion of the topic of data security in the office. Toward the end of the session the moderator opened the discussion up to questions from the audience. I commented to the panel that, while I found the discussion interesting, I would like to have some specific action items that I could take back to my five-attorney law firm and implement, step-by-step. 

The advice that was given in response was to start with written policies and procedures. As in any endeavor, if you don’t know where you’re going, any road will take you there. A cautionary bit of advice that went with the suggestion of developing written policies and procedures was that then you are duty bound to follow them. Failing to observe your own procedures can increase rather than decrease your liability.

It was also suggested that I consider hiring a security consultant to do a risk assessment of my office. Apparently for a firm the size of mine (<10 total staff) this endeavor can run approximately $5,000 – $10,000. While this seems like a sizable chunk of discretionary spending, the cost of a data breach and one’s exposure to liability for it would no doubt be a multiple of many times that amount. 

Contrasting the 2015 event with LegalTech events in years past, one significant difference stood out to me.  In past years there were seminar sessions on a broader variety of topics. There have been sessions on such things as what financial reports a law firm owner should regularly produce and review, sessions on tech gadgets, useful mobile devices, helpful apps, practice management software, and so forth. This year by far the greatest emphasis was on data. Even the vendor exhibit hall, although it did have exhibitors of a variety of useful products, seemed to be heavy on the e discovery and data security vendors. While this information is no doubt useful to some, I found it not very applicable to my small firm’s real estate law practice, where we do not get cases involving discovery of tens of thousands, or more, documents. Circling back to the keynote discussion that kicked off that day, attorney Lynne Hermle said that in the Ellen Pao vs. Kleiner Perkins case Ellen Pao had produced something approaching a million documents. May I be blessed to reach the end of my career without ever having to tackle such a daunting task. 

All in all, the LegalTech event is an enjoyable break from the office, especially for those of us interested in tech.  Are you one of us?  Check your wrist.  If there’s an Apple watch on it, you are inescapably a techie.  It was nice to have this event in Northern California for a change, and the Hyatt Regency was a lovely and accommodating venue.  I hope to see the event back in San Francisco again next year."

Peter Brewer

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About the Author:   Peter N. Brewer has been a lawyer for over 35 years, and is also licensed by the California Bureau of Real Estate as a real estate broker.  Peter started his own firm in 1995.  The firm has grown to five attorneys, practicing real estate and lending law.  The firm serves the legal needs of homeowners, purchasers and sellers, real estate and mortgage brokers, agents, brokerages, title companies, investors, other real estate professionals and their clients. Peter and his firm also represent clients in debt collection, creditor representation in bankruptcy, breach of contract matters, and other litigation and transactional work.

Peter obtained his Juris Doctor degree from the University of Santa Clara Law School in 1979 and is also licensed to practice law in all State and Federal Courts in Idaho and certain Federal Courts in Michigan and Iowa (and probably in other states he no longer recalls).  He loves dogs, hates kids, and is generally considered to have an insufferable disposition.

Law Offices of Peter N. Brewer

2501 Park Blvd, 2nd Flr.

Palo Alto, CA 94306

(650) 327-2900 x 12

www.BrewerFirm.com

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Real Estate Law – From the Ground Up®

California Lawyer, Duties, eDiscovery 101, eDiscovery California, Education, Implementation, Law Practice Management, Privacy, Privilege, Sanctions, Scope, Security, Spoliation, Strategy, Technology, Zubulake

My Analysis of Calbar Formal Opinion 2015-193: eDiscovery & ESI? “Don’t Be Stupid”

The last three words from this short Beverly Hills Cop video clip sum up my analysis of the opinion:

I wrote public comments to COPRAC (The State Bar of California Committee on Professional Responsibility and Conduct) re their interim versions of the opinion and, in a rare step, I’m posting a verbatim excerpt because my assessment of this opinion remains unchanged.  One modification – I bolded a quote, because the Committee adopted my definition verbatim in their opinion (page three, footnote six):

“I’m seeing a very common thread in COPRAC’s reasoning that afflicts those who understand technology at a more surface-level; the tendency to think of it in physical, rather than ethereal terms.  In other words, the Committee has focused on the word evidence, instead of the word electronic.  Take water, for example.  Whether it exists in a lake, a bathtub, or a glass, it’s still water.  It’s the same with evidence.  Whether it exists as writing on a tombstone, a paper document, or in electronic form (e.g. sitting on a flash drive), it’s still evidence.  It’s the medium that should distinguish it for your purposes.  That’s the contrast missing here.

Whereas the Committee has done a better job of defining parameters such as clawbacks and laying out accurate mistakes by our hapless attorney, once again, it descends into conduct that isn’t eDiscovery-based; but competence-based.  This opinion relies too much on unrelated reasoning, such as “assumes”, “relying on that assumption” and “under the impression”.  That’s not an eDiscovery problem; that’s a general competence problem.  It’s also not what the audience needs.  If they’re attorneys licensed in California, they’ve presumably passed both a Professional Responsibility course and the MPRE exam and know – or should know – their duty of competence.  It’s not as if an attorney retains a med-mal case, then immediately “assumes” or is “under the impression” that s/he’s a doctor and can read an x-ray.  But I could intertwine those facts with this opinion and make it about medical experts.  What attorneys specifically need to know is how their actions, or lack thereof, in the procurement, assessment and handling of electronic evidence morph into a violation.  This is a highly specialized area unto itself.  See my previous example.  The x-ray is electronic evidence.  Proper acquisition is one matter; analysis, forensic or otherwise, is quite another.  That doesn’t just include the adversary’s evidence.  It also includes the Client’s evidence.  In this scenario, one is seeking to exculpate the Client through all available means – not just via the adversary.

Contradictions also exist in Footnote Six on page three that states, “This opinion does not directly address ethical obligations relating to litigation holds.”.  I respectfully submit that the opinion goes on to do exactly that.  Perhaps this is due to the criteria set forth in Footnote Six being inaccurate as defined.  In a legal setting, Attorney is charged to know what the Client does not, and this may involve issuing litigation hold instructions to their own Client; not just third parties or adversaries.  If attorney was interacting with the CIO or CTO (The “Information”/”Technology” chiefs, perhaps s/he could reasonably reply on their assessments.  But here, attorney is interacting with the CEO who likely has no intimate knowledge of what goes on in the IT department.  It should read, “A litigation hold is a directive issued to, by or on behalf of a Client.”  Otherwise, how does the competent Attorney protect a Client who, in good-faith, endeavors to do the right thing or protect themselves when a Client, in bad-faith, engages in intentional spoliation?  One of those scenarios exists on page two, when the eDiscovery expert, “tells Attorney potentially responsive ESI has been routinely deleted from the Client’s computers as part of Client’s normal document retention policy”.

Understanding these nuances and acting on them is the very definition of competence as applied to an eDiscovery attorney – or an attorney who engages the services of a third-party eDiscovery vendor.  In this arena, eDiscovery is like a game of falling dominos; once competence tips over, the rest (acts/omissions, failing to supervise, and confidentiality) will logically follow.  As they say, timing is everything.”

Conclusion:  The opinion does a good job of explaining fundamentals of the eDiscovery process, but in my opinion, doesn’t go nearly far enough.