Category Archives: California Lawyer

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.

Calbar CYLA Symposium – May 22, 2015 in L.A.

CYLA Skills 2015So…I'm a little out of order (not a great thing for a lawyer to say, is it?).  It means that I've already posted presentations in June but the CYLA Annual Practical Skills Training Symposium is held in the State Bar offices May 21st in San Francisco and May 22nd in Los Angeles.

Two important thing to know:  1) The programs are different each day, and 2) I'm presenting from 2 p.m. – 3 p.m. Friday, May 22nd on:

 

New Attorney Skills (Attorney Advertising) 

Ethical Attorney Advertisement and Marketing

"This course will discuss how to advertise your legal services on the Internet. Learn how to design and operate your website, correspond with clients or prospective clients online, and use social media to maximize your business objectives."

I'll also be sticking around from 5:30 p.m. – 6:30 p.m. for:

Networking Speed Mentoring

"Meet and greet seasoned legal practitioners."

I'm pretty sure "seasoned" is a euphemism for "old"…I'll pretend it means, "experienced".

I hope you can join us.

v-Discovery Insights: CYLA 10 Minute Mentor

CYLA 10MinuteMentorBetter later than never.  At last September's State Bar of California Annual Meeting in San Diego, I and about fourteen other experts recorded videos for the California Young Lawyers Association's kick-off of their "10 Minute Mentor" program.

That was the easy part.  Many of you may not know this, but the Bar is very strict about complying with the Americans with Disabilities Act (ADA), so the videos couldn't be posted until subtitles were added.

Well…the time has come.  Check out my presentation, "Today's Technologies and Maintaining Client Confidences 101":

 

 

Close, But Still TFARR

MP900401794

Interesting article in the Los Angeles Times on TFARR.  Of course, nobody knows it as TFARR except those who were on the Task Force.  Still, if you're a law student about to graduate and take the bar exam - or you've passed and are about to be sworn in – you'll want to familiarize yourselves with the evolution of proposed mandatory pro bono requirements in California.

For the record, it's the Task Force on Admissions Regulation Reform

Calbar Proposed Formal Opinion Interim No. 11-0004 (ESI & Discovery): Comment Period Extended!

Emergency HumorousA quick note to let you know that the proposed opinion was revised and resubmitted for public comment with an extended deadline of April 9, 2015 at 5 p.m.  I stress that the opinion is revised because – if you're going to submit comments – you need to review the new version first!

PLEASE NOTE: Publication for public comment is not, and shall not be, construed as a recommendation or approval by the Board of Trustees of the materials published.

Calbar Proposed Formal Opinion Interim No. 12-0006 (Attorney Blogging)

Emergency Humorous

 

The State Bar of California Proposed Formal Opinion Interim No. 12-0006 (Attorney Blogging) has been posted for public comment.  The comment period expires March 23rd, 2015 at 5pm.

PLEASE NOTE: Publication for public comment is not, and shall not be, construed as a recommendation or approval by the Board of Trustees of the materials published.

Co-Chair of the Council of State Bar Sections

Bored-kitty

Geez.  Last year I was much more excited.  This year, my attitude is akin to that old football proverb; when you reach the endzone, act like you've been there before.

Still, for a guy who grew up in Calgary, Canada, it's an honor and privilege to ascend to the position of Co-Chair of the State Bar of California Council of State Bar Sections.  Even better?  My Co-Chair is the very talented Family Law atty Mark Ressa.

I look forward to a very challenging and exciting term ahead!

Calbar Solo Summit 2014: So Much for Cutting Back!

Solo Summit 2014

 

Hi All – hope things are going well with you.  I said I was planning to cut back on presentations, but somehow I was selected to do two programs at the upcoming State Bar of California Solo & Small Firm Summit in Newport Beach (note that's a change from the usual location, Long Beach).  So, without further adieu, here's my schedule:

 

Solo Summit 2014 - Friday

Friday Lunch Program:  11:30 a.m. to 1:00 p.m.

(Program 17, June 20th)

Junior Associate to Senior Partner: Confidentiality, Privacy and Technology Governance

Generally speaking, senior attorneys tend to be intimidated by technology. On the other hand, junior attorneys tend not to be intimidated enough!  This program strikes the balance and answers the burning question, “Am I doing enough to protect the privacy and confidentiality of both my practice and my client information?”

MCLE: 1.0 Hour Ethics

[I was awarded one of the coveted plenary sessions for the first time.  Normally, we break into three concurrent MCLE presentations, but the plenary sessions have all 250 attendees.  I'm going to have to be on my toes for this one…]

 

Solo Summit 2014 - Saturday

11:00 a.m. to 12 noon

(Program 32, June 21st)

Leveraging Technology to Beat the Big Guys in the Discovery Game

Panel presentation of the rules and new technologies pertaining to ESI (electronically stored information) that will level the playing field to allow a solo or small firm attorney to “go toe-to-toe” with a large law firm throughout the discovery process — even during the most complex and voluminous litigation. The speakers discuss cutting edge litigation technology advancements which translate to cost savings and more streamlined management of electronically stored information. New technology trends discussed include computer assisted review, analytics, the latest trends with computer forensics and automating litigation hold policies among others.

MCLE: 1.0 Hour Ethics

Hope to see you there!

Don’t IT Tomorrow what you can IT Today: IT Law Today Blawg

Brownstone photoI've been waiting for this for some time.  Robert Brownstone of Fenwick & West (who I've cited many times on this blawg), has finally taken the plunge and launched the blawg, "IT Law Today: News & Updates on the lifecycle of electronic information management".

Folks, if you want to receive top of the line information and resources from one of the best in the business, I recommend you add him to your favorites lists (and while you're at it, follow him on Twitter as well – @eDiscoveryGuru).

You know how stingy I am about promotion on this blog, but this is one of my rare exceptions.  Let me put it this way; when I have an issue that could go one way or the other and I want to chat with someone about the possibilites, Robert is the first person I call!

Make him one of your first stops as well – you will benefit greatly from his knowledge.