COUNTY LAWYER NEW YORK
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Cloud Computing – Why and How
facilities (Amazon’s S3 service, which is the platform that many cloud providers are built on, actually houses its servers in “undisclosed locations” with military-grade security). Additionally, because most cloud providers keep redundant copies of all uploaded data, your files are secure against mechanical failure and natural disaster.
By William Aronin, Esq.
Increased freedom and security are just some of the benefits of incorporating cloud computing into your legal practice. Before doing so however, an attorney must understand what “cloud computing” means, and must weigh the benefits of the technology against its potential risks.
There are a number of technical definitions of cloud computing, but the concept behind it is surprisingly simple. The “cloud” refers to the storage and access of data on remote servers, instead of on an individual’s own computer or local network. Almost everyone has used the cloud, even if they didn’t realize it; using Gmail, uploading pictures to Facebook, or sharing a video on YouTube are all examples of common uses of cloud computing.
For lawyers, especially those in small firms, cloud computing offers a number of benefits. Increased freedom is perhaps the single greatest aspect of the technology. Instead of being tied to a particular office or laptop, an attorney with a cloud setup can access relevant client information, as
well as review and edit documents, from anywhere with an Internet connection. It also allows lawyers to work remotely, without any lost access or productivity.
If utilized carefully, increased security can be another advantage of cloud computing. Most reputable cloud providers use highlevel encryption standards, and the physical servers are often kept in highly secure
Scalability is another advantage of cloud computing. As law firms grow, those that rely on local servers can find it costly to upgrade their equipment every time more storage or processing power is needed. On the other hand, those firms relying on cloud solutions find that upgrading is easy. Adding new staff requires little more than creating a new linked account, and adding gigabytes of storage is fast and inexpensive. While we’ve discussed some of the benefits, there are still serious concerns with cloud computing that an attorney must be aware of before using it to store critical information. As with any issue touching upon client confidentiality and a lawyer’s use of third party contractors, an attorney must ensure that the use of a new technol-
(See Cloud Computing on Page 15)
Social networking and eDiscovery: What’s Acceptable? By Joseph J. Bambara, Esq.
Communities of people who share interests and/or activities, or who are interested in exploring the interests and activities of others, are increasingly connecting with each other online via social network services (SNS). With over 900 million registered users on Facebook, 300 million on Twitter, 200 million on Google+, and 120 million users on LinkedIn, people are spending more time on SNS today than ever before, therefore impacting how evidence is obtained and shaping eDiscovery.
the site should be presumed available to the general public. Legal experts agree that public information sources such as Facebook can be legally used in criminal or other investigations.
If we agree that social networking sites may yield relevant information, the issue then is gaining access to that information. In EEOC v. Simply Storage Management, LLC, 270 F.R.D. 430 (S.D. Ind. 2010), the court stated that discovery of social networking sites involves the application of basic discovery principles, just in a novel context. The Stored Communications Act (SCA), 18 U.S.C. § 2702(a)(1) and (2), prohibits Internet operators from “knowingly divulging to any person or entity the contents of a communication while in electronic storage…” or “which is carried or maintained on that service.” Accordingly, the SCA provides that Internet operators must have the “lawful consent of the originator or an addressee or intended recipient” before revealing social networking information.
There are several methods for obtaining social networking data; the method you
choose will depend on the type of information sought. Basic subscriber information, including the user’s name and e-mail address, can be obtained with a subpoena. Note, subscriber information is not difficult to obtain. Courts have consistently held that a person lacks a legitimate expectation of privacy when using such Internet-based programs. Crispin v. Christian Audiger, Inc., 717 F. Supp. 2d 965 (S.D. Cal. 2010) is an example of such a ruling. To obtain more information, section 2703 of the SCA affords what is referred to commonly as a 2703(d) order and requires specific facts that the data is relevant and material to the investigation. Without prior notice, a 2703(d) will return only non-content. For example, it will show you the recipient of the message, but not its content, for which you need a 2703(d) order with prior notice.
Most social networking sites have privacy settings ranging from communications only accessible by a select group of individuals to communications shared with the public at large. Courts have looked to these privacy settings when determining whether post(See Social Networking on Page 14)
Volume 7 / Number 15
I N S I D E
Social Networking & E-Discovery......................1
The “CAR” Keys to Defensibility .....................2
Internet Marketing ...........2 Ethical E-Discovery.........3
Internet Access in NYC Courts .............................11
The Pitfalls of “Do-It Yourself” Sites...............12 T A B L E O F C O N T E N T S Annual Dinner ................................. 9 Attorneys’ Guide Order Form...........6 Book Review: Business & Commerical Litigation..................... 7 Book Review: Hello Kitty Must Die ......................14 CLE Programs ..................................4 Cloud Computing..............................1 Digital Training Center CLE Programs .........................................10 Ethical E-Discovery..........................3 Ethics Hotline ...................................5 Events Calendar ................................9 Internet Access in NYC Courts ......11 Internet Marketing ............................2 Library Notes ..................................10 Message from Barbara Moses, President of the NYCLA Foundation ........................................6 Message from Stewart D. Aaron, President of NYCLA ........................3 NYCLA in the News ......................12 Public Service Awards Reception.....9 Recent Events Photos ...................... 8 Social Networking & E-Discovery...1 The “CAR” Keys to Defensibility....2 The Pitfalls of “Do-It Yourself” Sites.................................................12
September 2012 / The New York County Lawyer
The “CAR” Keys to Defensibility By Dino E. Medina, Esq.
The purpose of pretrial discovery in the American legal system is to promote the full disclosure of facts relevant to a given dispute. To this end, the Federal Rules permit a litigating party to seek all information that is reasonably calculated to lead to the discovery of admissible evidence.1 There was a time when discovery requests would yield only boxes of documents from which to locate relevant material. The societal shift from paper documents to electronically stored information (ESI) over the past ten years, however, has led to sharp increases in discovery data volume, review time and cost. The following statistics illustrate this phenomenon: • Statisticians estimate that only five to seven percent of all data is created outside of a computer system.2 • 73 percent of all production costs are attributable to review of ESI.3 • The cost to review one gigabyte of ESI is between $5,000 and $30,000.4
As discovery in the legal industry continues to evolve in this electronic age, defensible methods to manage increased data volume, speed-up review time and curb review cost have become essential.
Technology’s latest solution to these discovery issues is computer-assisted review (CAR). CAR is a process by which analytics technology leverages the subject matter proficiency of human document reviewers to make conceptually-based coding decisions on all documents within a particular universe or “corpus.” Attorneys with sub-
ject matter expertise must first generate a “seed” or “training” set of documents (e.g., 500 docs), code it consistently using a specified protocol and run an analytics engine against the “seed” set to extrapolate its coding to the remaining documents in the corpus. Next, the analytics software generates a random sample from the corpus, which is then re-coded by the attorneys with subject matter expertise. Once re-coded, the analytics tool will again extrapolate the coding to the corpus. Third, an overturn report is run which, among other things, allows one to see the percentage of computer coding decisions overturned by the attorneys with subject matter expertise. Several iterations of this process are implemented until the computer’s coding is overturned by the attorneys with subject matter expertise at a rate of less than five percent. This process is proven to be significantly less costly and time consuming than traditional manual document review.5
Given all of the recent hype surrounding CAR and the judicial acceptance of this “black box” technology in the Da Silva Moore, Global Aerospace and Kleen Products cases, one might wonder: “can CAR really be as reliable (and therefore, legally defensible) as traditional manual review in identifying relevant data?” This question has become one of primordial importance to large-scale litigators tasked with sorting through huge volumes of ESI to find responsive and privileged material in an efficient and cost-effective manner. As will become evident, CAR technology combined with a robust audit trail can provide a defensible mechanism to meet one’s e-discovery obligations. How does one achieve defensibility in the
context of CAR? The producing party must build a detailed audit trail that satisfies a two-pronged test. The first prong speaks to the “reasonableness” of the CAR process; the selected method must accurately capture a reasonably sufficient number of the responsive, non-privileged ESI pursuant to a given document request, and any remaining unproduced ESI is predominantly not relevant or privileged.6 An audit trail satisfying the first CAR defensibility prong entails reaching agreement with one’s adversary as to the degree of recall and precision the CAR software will utilize in gathering, analyzing and coding discovery documents. Recall is the number of potentially relevant documents the system retrieves relative to the number of documents in the entire collection7 (e.g., as a result of a keyword search or concept-based search). Precision is the number of relevant documents identified in relation to the number of potentially relevant documents previously retrieved. Recall is an indicator of the system’s effectiveness in finding potentially relevant data, and precision is an indicator of the accuracy of the document coding process. Recall is a measure of completeness or quantity, whereas precision is a measure of exactness or quality. With too little recall, potentially relevant information will be overlooked; with too little precision, one’s “relevant” document set becomes riddled with non-relevant documents. The key to defensibility is a memorialized negotiation and agreement on these issues; it would be difficult for one’s adversary to claim production deficiencies in the face of a written recall and precision rate agreement. Additionally important in satisfying the
first defensibility prong as it relates to CAR, is the ability to document the process of coding “seed” documents and subsequent system “training” documents. It is generally understood that the technology used to identify relevant data is only as good as those training it. Because most difficulties in the CAR process stem from human review errors, the “seed” and subsequent “training” phases must be completed accurately and consistently by attorneys with expertise in the particular subject matter. Without accurate and consistent human input, the CAR analytics engine is unable to produce reliable results. Attorneys with subject matter expertise should draft a protocol detailing the criteria for accurately and consistently categorizing documents for defensibility purposes. Finally, the statistical components underlying the CAR process must be scientifically sound and documented to satisfy the first defensibility prong. These statistical components include random sampling, confidence levels, and confidence intervals. Random sampling is a means to obtain a truly representative sample of documents, by enabling all documents within a corpus to have an equal chance of being selected. Random sampling can be used to select the initial “seed” set and must be used to draw samples for each of the iterative training rounds. A confidence level expresses the level of certainty one can expect that a sample set of documents is drawn randomly from the system and reflective of the types of documents in a given population. A confidence interval is the margin of error— expressed as both positive and negative numbers—that a selected sample is truly (See CAR Discovery on Page 15)
But I get all of my business through referrals... storage, article libraries, and interactive calculators. By not offering these online resources, you may eventually lose clients to competitors who are.
By Fred Cohen, J.D. When we give presentations to attorneys, we inevitably hear one or two say, “I get most of my business through referrals, I don’t need a good website (or a website at all for that matter).” What these attorneys fail to realize is that a firm’s website is not only a business development tool but also a big part of the firm’s overall appearance and reputation. Even firms bursting at the seams with new clients need to have a great website. Here’s why:
Referrals will Google You Sure, the accountant down the street may refer all of his clients to you but, in many cases, his endorsement alone is not enough to seal the deal. After hearing your name, prospective clients will Google you. They’re looking for your credentials and your contact information, and if they’re not able to find any of this information easily, the likelihood of them contacting you decreases.
Colleagues and Opposing Counsel will Google You When your name comes up at a business meeting or when you are first introduced to your opposing counsel, they will Google you. First impressions are everything. By not having a website or having a poorly developed, or horribly outdated website, your firm may appear less pro-
Online Reputation Management Even if your firm is not fully embracing the web, other businesses and individuals are utilizing its many benefits. Each day there are new sites on the web devoted to local reviews so consumers can make the best decision when hiring a service provider. You have no control over whether you firm is reviewed and more importantly what reviewers say about your work. You do, however, have control of the online presence that you create. A well-optimized site will help to ensure that Google users are led to a place that you’ve created with accurate information about you as an attorney and your practice as a whole.
fessional. An effective online presence helps to establish your expertise and credibility.
Referral Sources Also Use Google By this point in the article, you should know everyone uses Google. Okay, maybe not everyone but a few hundred million people last year. Prospective referral sources are also using the web to find local attorneys who they might refer clients to. Without a website, it’s more dif-
ficult to connect with new referral sources that can drive business to your firm.
Your Site Should Be a Real Resource for Your Current Clients So you’re not looking for new clients on the web? That doesn’t mean that your current clients shouldn’t have access to firm resources online. As competition stiffens and technology advances, firms are delivering more value to their clients through online tools such as document
Not wanting to attract new clients is no excuse for not having an effective website. Working with an experienced website developer with expertise in the legal arena is the best way to establish a web presence that meets your firm’s objectives.
Fred J. Cohen, J.D., is the founder and President of Amicus Creative Media, an attorney web design and marketing company (amicuscreative.com), and a NYCLA member benefit partner. He can be contacted at 877-269-0076.
September 2012 / The New York County Lawyer
MESSAGE FROM STEWART D. A ARON PRESIDENT OF THE NEW YORK COUNT Y L AW YERS’ ASSOCIATION Dear Readers: As a modern day lawyer, it is not uncommon to take for granted all the technology we have at our fingertips. Of course, the practice of law has not always been so technologically advanced. When I first started practicing in 1983, electric typewriters were still in use. It was a few years before word processors and then computers became widely used. Most communications with clients and adversaries were made by telephone or by letter—either mailed or handdelivered. Fax machines next became a part of everyday life, but utilized a special type of paper that curled up. I still remember when Federal Express came into being— what a breakthrough! And next came the emails and handheld devices that are so common today. Now we are beginning to use emerging technologies, such as cloud computing. All of this technology has had a profound impact on eDiscovery—and we still have much to learn about both the technology and eDiscovery. This issue of the New York County Lawyer addresses some of the issues that technology has brought to our profession.
lawyers tried to subpoena evidence. On page 2, you can read “The ‘CAR’ Keys to Defensibility” to gain insight into computer-assisted review and how it can help you in the discovery process.
If you’re not already using a cloud computing service and want to gain some insight on how such services work, I invite you to learn why and how lawyers are using cloud computing services from our cover story on this topic. Meanwhile, eDiscovery is a hot and broad topic and in an effort to fill you in, you will find three stories devoted to different aspects of this topic within this issue including one of our cover stories, “Social Networking and eDiscovery: What’s Acceptable.” This story explores cases in which social media postings were used as evidence or from which
All of the technological advances have made lawyers more available, and also made us more responsive. But, these advances also have created an enormous amount of data that must be sifted through in many litigations. I hope after reading this issue you will have acquired some knowledge and feel better equipped to practice in your field using ever-changing technology to which the legal community has access today. Tweet me @NYCLAPres and share how you are using technology and what you would like to learn about it.
Stewart D. Aaron President New York County Lawyers’ Association
Ethical E-Discovery Requires Cooperation and Competence By Aaron Esty, Esq.
In 2008, the Sedona Conference described the state of e-discovery practice in dire terms. The law and policy think tank lamented that compared with other types of discovery, e-discovery costs more, burdens the courts more heavily, and is more prone to becoming mired in unproductive motion practice.1 The authors of the organization’s 2008 Cooperation Proclamation proposed, as the title suggests, that cooperation is the key to reducing the problems posed by ediscovery. The document insisted that cooperation is consistent with zealous advocacy and maintained that an attorney can be both a dedicated client advocate and an ethical adversary.
Perhaps anticipating some degree of eyerolling, the Sedona Conference dismissed the notion that proclaiming a movement toward cooperation is somehow utopian. And, in fact, recent developments in the courts testify to the practical enforceability of cooperation in discovery practice. Cooperation and transparency have moved beyond admirable principles, as courts address the particular problems posed by e-discovery by incentivizing cooperation and penalizing uncooperative conduct. In the process, the rules of professional conduct play a role in providing courts with standards by which to judge cooperation and decide on appropriate measures to be implemented in policing e-discovery to promote cooperation, decrease costs, and lessen the burden on the judicial system.
Some courts have taken a soft approach toward encouraging cooperation between parties. At least one judge has adopted the tactic of requiring counsel to read the Cooperation Proclamation at the outset of litigation, perhaps hoping to persuade the parties that mutual support can benefit everyone. A more tangible incentive to
cooperate has been instituted in the requirement that the producing party bear the initial cost of retrieving, searching, and producing e-discovery. Then, in a move designed to police the conduct of the parties in discovery, courts may shift costs when appropriate based on factors such as how well the requesting party formulated the initial requests toward discovering relevant information, the importance of the issues relating the requests and the total costs of the discovery including the resources of the parties and the parties’ respective ability and incentive to control costs.2
As courts and opposing counsel become increasingly familiar with proper e-discovery procedures, failure to cooperate and operate transparently may become a less viable option. After all, anyone deficient in meeting discovery obligations may likely find their shortcomings exposed later on when an opposing party takes the opportunity to inquire in depositions about the procedures undertaken to preserve, search, and produce e-discovery.3 When prodding and incentivizing fail, federal courts have the power to sanction lawyers for violations of rules of professional conduct under their inherent powers. For example, a court may impose sanctions under its inherent powers for a lawyer’s failure to preserve electronic documents.4 Or if a party demonstrates a lack of cooperation and efficiency, those shortcomings may become the deciding factor in determining the extent of cost-shifting.5 At the more extreme end, a court may order monetary sanctions and even allow adverse inference instructions at trial where a party makes misrepresentations about the storage of electronic files and fails to adequately search for responsive documents.6 Moving beyond cooperation, it should be obvious that counsel must possess some
level of understanding of e-discovery in order to even be capable of cooperating effectively. Therefore perhaps no rule of professional responsibility applies more directly toward improving e-discovery than the rule of competence. Competence in e-discovery concepts and procedures also allows parties to undertake e-discovery more efficiently by tailoring requests to discover relevant information and help a case. On the side of the producing party, competence means designing and overseeing an efficient, cost-effective and reliable document review and production process. Failure to competently review an electronic product could result in a violation of other ethical rules, such as the duty to protect a client’s confidential information when proprietary or privileged information is inadvertently produced. In another scenario, an attorney who fails to recognize the moment when a litigation hold must be issued for a company or organization anticipating litigation fails to competently protect their client’s interests as a spoliation finding could result.
Standing in the way of attorney understanding of e-discovery is the fact that law schools largely shun the teaching of this unesteemed subject. Likewise, few attorneys aspire to specialize in an uncelebrated field that tends to bring to mind litigation support geeks and dispirited contract attorneys hunched in front of computer screens clicking through email after email. But courts are taking the lead in telling the profession that the time has come to get off its collective high horse and start learning about e-discovery. Judge Peck of the Southern District issued a thunderous warning that counsel must work with opposing counsel and clients to craft processes that preserve and produce e-discovery in an accurate and efficient manner regardless of whether one is a lawyer who “did not
(See Ethical eDiscovery on Page 5)
COUNTY LAWYER Stewart D. Aaron President
Sophia J Gianacoplos Executive Director
Toni Valenti Director of Marketing and Membership Development
Ariella Greenbaum Editor Senior Communications and Social Media Manager
New York County Lawyer is published by Long Islander Newspapers under the auspices of the New York County Lawyers’ Association. For advertising information, call 631-427-7000. Mailing address: 149 Main Street, Huntington, NY 11743. Copyright © 2012 New York County Lawyers’ Association. All rights reserved. New York County Lawyers’ Association grants permission for articles and other material herein or portions thereof to be reproduced and distributed for educational or professional use through direct contact with clients, prospective clients, professional colleagues and students provided that such use shall not involve any matter for which payment (other than legal fees or tuition) is made and provided further that all reproductions include the name of the author of the article, the copyright notice(s) included in the original publication, and a notice indicating the name and date of the Association publication from which the reprint is made. Subscription rate: $10.00 per year for non-members New York County Lawyer is published monthly (except January and August) for $10 per year by New York County Lawyers’ Association, 14 Vesey Street, New York, NY 10007. Periodicals postage paid is mailed at New York, NY and additional mailing offices. POSTMASTER: Send address changes to: New York County Lawyer, 14 Vesey Street, New York, NY 10007-2992. USPS #022-995 ISSN: 1558-5786 $10.00 of membership dues is deducted for a one-year subscription to the New York County Lawyer.
Photo Credits Neil Abramowitz Ariella Greenbaum Carolyn Marino Maurice Pianko Maureen Vitali
September 2012 / The New York County Lawyer
Back to School at the CLE Institute SAVE THE DATE
This September the CLE Institute has a diverse curriculum of programs – from technology to skill building to ethics to substantive areas of the law.
Effective Compliance Tools for Cross-Border Regulations Monday, October 15, 2012; 9 a.m.7 p.m.
A Lawyers Guide to Engaging Legal Professionals and Leveraging Technology to Meet Their Ethical Obligations — Thursday, September 6, 2012; 6 – 8:00 p.m., co-sponsored by NYCLA’s Ethics Institute Lawyers are faced with strict ethical standards that they must comply with. To ease their burden, lawyers turn to legal professionals, and more and more are implementing technological solutions to help. Demonstrations of technological advances that directly assist in meeting attorneys’ professional obligations will be interspersed with the panel discussion. Recent Cases Dealing with Cyberlaw: Stored Communications Act, Civil and Government Subpoenas, e-Discovery and Best Practices – Wednesday, September 13, 2012; 5:30– 9 p.m., cosponsored by NYCLA’s Cyberlaw Committee Join us for a look at recent cases focusing on the fast changing area of Cyberlaw, including • Privacy rights under the Stored Communications Act, which addresses voluntary and compelled disclosure of “stored wire and electronic communications and transactional records” held by third-party internet service providers (ISPs), • Civil and government subpoenas • e-Discovery methods and best practices in the area
10 Pet Peeves of In-House Counsel: What In-House Counsel Wants Outside Counsel to Know — Monday, September 24, 2012; 6:15 – 9 p.m., cosponsored by NYCLA’s In-house/Outside Counsel Committee Join us for a networking reception to mingle with panelists, Committee members and attendees and a frank discussion of what in-house counsel are really seeking from their outside lawyers. • Understand the 10 pet peeves of inhouse counsel • How outside lawyers can work collaboratively with their outside counterparts; and • Why some lawyers and firms continually get repeat engagements, while other firms don’t
New York City Energy Laws and Regulations Update 2012 Wednesday, September 12, 2012; 9 a.m12:30 p.m. 3.5 MCLE Credits: 3.5 Professional Practice; Transitional and Non-transitional
Lawyers and Accountants – An Interdisciplinary Dialogue: Issues and Understandings Friday, September 28, 2012; 9 a.m.– 4 p.m., co-sponsored by NYCLA’s Ethics Institute When lawyers and accountants are involved in overlapping engagements, legal and accounting issues can become intertwined, leading to misunderstandings about the roles and responsibilities of each professional. During the multi-discipline program learn about: • The role of the accounting expert and consultant • Mixed accounting and legal issues • Corporate governance, audit committees and auditor independence • Accounting standards of the SEC and FASB germane to both professionals • Professional malpractice and professional liability insurance • Keynote speaker: Claudius Modesti, Director of Enforcement, PAOB
September Course List
2nd Annual Review of Fashion Law Wednesday, September 5, 2012; 6-9 p.m. 3 MCLE Credits: 3 Professional Practice; Transitional and Non-transitional (also NJ)
A Lawyers Guide to Engaging Legal Professionals and Leveraging Technology to Meet Their Ethical Obligations Thursday, September 6, 2012; 6-8 p.m. 2 MCLE Credits; 2 Ethics; Transitional and Non-transitional (also NJ)
Stress Management for Lawyers Monday, September 10, 2012; 6:30-8:30 p.m. 2 MCLE Credits; 2 Skills; Transitional and Non-transitional (Also NJ) NYCLA’s CLE Institute now an Accredited Provider in New Jersey New York County Lawyers’ Association’s CLE Institute is currently certified as an Accredited Provider of continuing legal education in the State New Jersey. Courses qualifying for CLE credit in New Jersey will be so designated on the NYCLA website. Be sure to consult www.nycla.org for program details and program locations. Please note that Tuition Assistance is available for qualified attorneys for live programs offered by the CLE Institute. Check our website at www.nycla.org for more information and how to apply for Tuition Assistance. Check our website for course details, faculty, complete program descriptions and pricing. Be sure to check our website for a complete listing of programs.
Bridge the Gap: Four Evening Program Consecutive Thursdays Sept. 13, 20, 27; Wednesday, Oct. 3, 2012; 5:30 p.m.-9 p.m. 16 MCLE credits: 3 Ethics; 7 PP/LPM; 6 Skills; Transitional and Non-transitional
Constitutional Interpretation and Race 2012: A Review of Constitutional Decisions and Their Impact on Asians, Blacks, Native Americans and Other Races Wednesday, September 19, 2012; 6-8:05 p.m. 2.5 MCLE Credits; 1 Ethics; 1 PP; Transitional and Non-transitional (also NJ) Recent Cases Dealing with Cyberlaw: Stored Communications Act, Civil and Government Subpoenas, e-Discovery and Best Practices Wednesday, September 13, 2012; 5:309 p.m. 4 MCLE Credits: 3 PP; 1 Skills (also NJ)
Myths of Lawyering Debunked Thursday, Sept. 20, 2012; 5:30-9 p.m. 4 MCLE Credits: 1.5 Ethics; 1.5 PP/LPM; 1 Skills; Transitional and Nontransitional (also NJ)
10 Pet Peeves of In-House Counsel: What In-House Counsel Wants Their Outside Counsel to Know Monday, September 24, 2012; 6:15-9 p.m. 2 MCLE Credits: 2 PP; Transitional and Non-transitional (also NJ)
Overview of e-Discovery; From Lunch to Client Thursday, September 27, 2012; 5:30-9 p.m. 4 MCLE Credits: 2 PP; 2 Skills
Lawyers and Accountants – An Interdisciplinary Dialogue: Issues and Understandings Friday, September 28, 2012; 9 a.m.-4 p.m. 6 MCLE Credits: 2.5 Ethics; 2.5 PP; 1 Skills; Transitional and Non-transitional
September 2012 / The New York County Lawyer
Ethical eDiscovery (Continued From Page 3)
come of age in the computer Presumably, younger attorneys have even less of an excuse.
Ethical rules will continue to figure into the reasoning of some courts in penalizing uncooperative conduct. For instance, one judge cited generally to attorney codes of conduct in ruling that a party that responds to e-discovery production requests with nonspecific, boilerplate objections, waives those objections because the objecting party could have voiced its concerns about the burden or cost of the requests to the court or the requesting party. 8 Had the producing party’s concerns been reasonable, it should have been knowledgeable enough to raise them. Such a penalty signals that when a party fails to engage cooperatively in the e-discovery process, whether due to ineptness or obstinance, a court interested in preserving its integrity will design an appropriate penalty. And when a party is penalized, by extension, his/her inept or obstinate counsel is penalized as well. Aaron Esty, Esq., a NYCLA member and a graduate of the University of Virginia School of Law, currently works on federal human rights litigation. He has also worked as a contract attorney and in litigation support.
Footnotes: 1 The Sedona Conference Cooperation
2 3 4 5
Proclamation, (July 2008), https://thesedonaconference.org/coop eration-proclamation US Bank NA v. GreenPoint Mtge. Funding, Inc., 2012 NY Slip Op 1515 (N.Y. App. Div. Feb. 28. 2012). See Wells v. Xpedx, No. 8:05-CV2193-T-EAJ, 2007 WL 1200955 (M.D.Fla. Apr. 23, 2007). See Fed. Deposit Ins. Corp. v. Malik, No. 09-CV-4805 (E.D.N.Y. Mar. 26, 2012). DeGeer v. Gillis, No. 09 C 6974, 2010
WL 5096563 (N.D. Ill. Dec. 8, 2010). 6 Peter Kiewit Sons’, Inc. v. Wall Street Equity Group, Inc., No. 8:10CV365, 2012 WL 1852048 (D. Neb. May 18, 2012) 7 William A. Gross Const. Associates, Inc. v. American Mfrs. Mut. Ins. Co., 256 F.R.D. 134, 136 (S.D.N.Y. 2009). 8 Mancia v. Mayflower Textile Servs. Co., No. 1:08-CV-00273, at *26-27 (D.Md. Oct. 15, 2008)
The Committee on Professional Ethics accepts both written and telephone inquiries on ethics matters and provides advisory opinions. For additional information, call the members listed below. September 1-15 Malvina Nathanson 212-608-6771 September 16-30 Barry Temkin 212-804-4221
October 1-15 Ellen Yaroshefsky 212-790-0386 October 16-31 Greg LeDonne 212-335-9152
Please Note: Assignments are subject to change.
Questions to the Hotline are limited to an inquiring attorney’s prospective conduct. The Hotline does not answer questions regarding past conduct, the conduct of other attorneys, questions that are being litigated or before a disciplinary committee or ethics committee, or questions of law. This notation shall not be construed to contain all Hotline guidelines. For a full discussion of Ethics Hotline guidelines, please see the article below, “Guidelines on NYCLA’s Ethics Hotline,” published in the September 2006 issue of New York County Lawyer.
September 2012 / The New York County Lawyer
MESSAGE FROM BARBARA MOSES PRESIDENT OF THE NYCL A FOUNDATION Dear Friends: When I was in law school, fax machines were considered high tech and legal research involved paging through books. Today’s lawyer, of course, needs access to multiple electronic databases, ranging from basic legal collections, such as those offered by Lexis and Westlaw, to specialized subscriptions like Bloomberg, Congressional Universe, and Legaltrac. While these services are powerful and convenient, they are not cheap, particularly for solo practitioners and lawyers at small law firms who may only need them occasionally. That’s where NYCLA comes in. Our library offers sophisticated electronic research capability to all NYCLA members—at no cost—through newly installed, state-of-the-art computers and ports. If you lack confidence in using these products, NYCLA offers frequent CLE courses designed to bring you up to speed quickly, including ten separate programs in September 2012 covering electronic research for both litigation and transactional purposes. Also on September’s CLE calendar: leveraging technology to meet your ethical obligations; privacy rights under the Stored Communications Act; and e-filing in the U.S. Bankruptcy Courts.
In addition to providing technology and training, NYCLA’s professional library staff can assist members with more esoteric research projects, involving both specialized electronic databases and, in many cases, NYCLA’s unmatched historical collection. NYCLA’s librarians can also help you gain access to no-cost electronic databases from your home or office and train you in their use. Unfortunately, your dues do not cover all of NYCLA’s programs and services. We depend on your contributions (made to the NYCLA Foundation, which is recognized by the IRS as a 501(c)(3) organization) to carry out the programs that make
us proud to be members of NYCLA. You can make donations—in any amount you choose—simply by going to www.nycla.org and clicking on “Giving to NYCLA.” Those of you who went to law school when I did (or who just like pens and paper) can also mail a check, payable to “NYCLA Foundation,” to NYCLA Foundation, 14 Vesey Street, New York, NY 10007. We are grateful for every contribution, and are pleased to say “thank you” with a selection of DVDs, books, prints, and other gifts described on our web site. Since the NYCLA Foundation is recognized by the IRS as a 501(c)(3) organization, gifts are deductible to the extent provided by law. NYCLA needs both your support and your ideas. Please do not hesitate to contact me with suggestions for fundraising or related topics. You can reach me at firstname.lastname@example.org. Sincerely,
Barbara Moses President of the NYCLA Foundation
September 2012 / The New York County Lawyer
Business and Commercial Litigation in Federal Courts, 3rd edition, edited by Robert L. Haig (published by West) By Stewart D. Aaron, Esq. The eleven-volume Third Edition of Business and Commercial Litigation in Federal Courts, edited by Robert L. Haig, is impressive not only for its comprehensiveness, but also for its depth of content and analysis. The Second Edition, which contained 96 chapters comprising eight volumes, already was regarded as a very thorough treatment of the procedural and substantive aspects of federal court practice. The Third Edition has taken the treatise to yet another level, by the addition of 34 new chapters concerning topics that will be of interest to the federal court practitioner. Among the 34 new chapters is Chapter 10, “Comparison with Commercial Litigation in State Courts,” which is authored by Daniel Reidy. This chapter provides helpful insights into the decision, as a plaintiff, whether to file in state or federal court, or as a defendant, whether to remove to federal court, assuming the requisite jurisdictional predicates are present. The chapter also contains a practice checklist of things to consider in deciding your choice of forum. Chapter 69, “Regulatory Litigation with the SEC,” authored by Keith Miller, is a useful tool for federal court practitioners who are
not accustomed to litigation against the U.S. Securities and Exchange Commission (SEC). The chapter addresses strategic issues in litigating against the SEC and also contains a discussion of unique defenses that exist in this type of litigation. Ted Wells and Roberta Kaplan in Chapter 113, “Interplay Between Commercial Litigation and Criminal Proceedings,” bring their vast experience to bear on a knotty topic faced by civil litigators who often lack a suitable background in criminal practice. Among other issues, the authors address attorney-client privilege considerations and the Fifth Amendment. They also provide a valuable case study of what transpired in the parallel civil and criminal litigation related to WorldCom that provides a contextual framework for many of the issues discussed in their chapter. The chapters in the Third Edition are authored by very experienced litigators, as well as 22 distinguished judges. The substantive law chapters provide an excellent start to any research project in a particular area of law. The authors have done extensive case law and other research that provides the underpinning for their cogent analyses. The procedural chapters provide a unique
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resource regarding the rules and practices in the federal courts. Since the authors are experienced practitioners and members of the judiciary, the procedures are put in proper context and are presented with an eye toward strategic issues that need to be addressed. Any law library collection will be enhanced by a comprehensive treatise that is authored by leading judges and lawyers, and that provides both a research tool and strategic guidance. The Third Edition of Business and Commercial Litigation in Federal Courts is just such a treatise. Stewart Aaron, Esq., President of the New York County Lawyers’ Association, past chair of NYCLA’s Federal Courts Committee, is a partner in the law firm of Arnold & Porter LLP, where he serves as head of its New York office. Mr. Aaron handles commercial and corporate litigation in state and federal courts, mostly in New York and is a frequent CLE lecturer at NYCLA and elsewhere on litigation in federal court, and author of a chapter titled “Ethical Issues in Commercial Litigation” in Commercial Litigation in New York State Courts, Third Edition, the New York state court counterpart to the federal court treatise that is the subject of this book review.
September 2012 / The New York County Lawyer
RECENT EVENTS NYCLA Civil Court Practice Section Dinner Honors Judges and Court Personnel At NYCLA’s Civil Court Practice Section Annual Dinner on Wednesday, June 20 at SPQR, Hon. Fern A. Fisher (bottom row, center), Deputy Chief Administrative Judge for the New York City Courts presented awards honoring Hon. Martin Schoenfeld (bottom row, left), Justice, Supreme Court Appellate Term, First Department; Hon. Pam Jackman-Brown (bottom row, second from left), Justice, Supreme Court, Queens County; Hon. Ernest Cavallo (bottom row, second from right), Judicial Hearing Officer; and Carol Alt (bottom row, right), Chief Clerk, Civil Court of the City of New York. Fisher and the award recipients were joined by Adrian Zuckerman (standing, left), Event CoChair; Barbara Moses (standing, second from left), NYCLA President-Elect; Robert D. Goldstein (standing, third from left), Event Co-Chair; Hon. Jean Schneider (third from right), Supervising Judge, Housing Court, New York County; Hon. David Cohen (standing, second from right), Civil Court Practice Section Chair; and Robert Silversmith (standing, right), Event Co-Chair.
Past and Present Interns Meet and Greet On June 28, 2012, a reception was held at Arnold & Porter’s New York office for the Hon. Harold Baer Jr. and Dr. Suzanne Baer Minority Judicial Internship Program. Established in 1989, the program serves to provide law students with an opportunity to spend eight weeks working with a judge that they were specially matched with. To celebrate the success of the program, current and former interns along with NYCLA leadership attended the reception. Back row left to right: Hon. Debra James, participating judge; former intern Queenie Paniagua; Co-chair of the Committee on Minorities and Law Asha Smith; Program co-founders, Hon. Harold Baer and Dr. Suzanne Baer; NYCLA President Stewart D. Aaron; and former intern Kevann Gardner. Front row, left to right: interns Kristen Ramos; Junie Chang; Maria Dyson; Carolyn Fahury; and Bedel Tiscaveno; along withformer intern Francisco Pardo.
Federal Courts Committee Celebrates at Summer Party At the Federal Courts Committee’s Summer Party on June 18 at Battery Gardens Restaurant in Battery Park, NYCLA Committee members celebrated the work the group accomplished over the past year and honored Thomas Marino, Partner at Dunnington, Bartholow & Miller LLP, with the Committee’s David Y. Hinshaw Award for his conspicuous contributions to the Committee.
Marino (center, left), is congratulated by employees from his firm, Eva Adaszko (right of Marino); Luke McGrath (left, front); Louis Teitel (left, center); Albert Lingelbach (left, back); Sam Blaustein (right, back);George Gowen (right, center); and Joseph Michaels (right, front).
David Hinshaw(left), former long-term secretary of NYCLA’s Federal Courts Committee for whom the award is named, poses with Marino.
NYCLA Hosts Summer Series for Law Students For the past two decades, NYCLA has held its annual “Lunch with a Judge” networking and educational program to give summer associates and legal interns the opportunity to have face time with some of the most prestigious judges in New York. This year, it was held every Tuesday in July, and featured topics that included: appropriate courtroom behavior, how to cross examine a witness, ethical issues for young lawyers, and career paths. Hon. Loretta A. Preska, Chief Judge, United States District Court, Southern District of New York (left), and Hon. Helen Freedman, Associate Justice, Supreme Court Appellate Division, First Department (right) pose together after discussing appropriate courtroom behavior with a room full of summer associates and legal interns at NYCLA’s “Lunch with a Judge” networking and educational program on July 10.
Daniel K. Wiig (far left), Chair of the Young Lawyers’ Section; Hon. Richard F. Braun (second from left), Supreme Court, New York County; and Lew Tesser, NYCLA Board of Directors Vice President (right) listen as Hon. Shirley Werner Kornreich, Supreme Court, New York County, explains to summer associates and legal interns in attendance how to prepare to try a case at NYCLA’s Lunch with a Judge program on July 17.
Hon. Joan Madden, Supreme Court, New York County, shares her insights on how to deal with ethical issues in the field of law with summer associates and legal interns at NYCLA’s Lunch with a Judge program on July 24.
NYCLA President Stewart Aaron introduces himself to interns from Judge Ling-Cohan’s office during NYCLA’s Lunch with a Judge networking and educational program on July 31. (Left to right) Hon. Doris Ling-Cohan, Supreme Court, New York County; Fawn Lee; Jessika Wong; and Katherine Coussa.
Summer associates and legal interns discuss career options with Hon. Doris Ling-Cohan, Supreme Court, New York County prior to the presentation at NYCLA’s Lunch with a Judge networking and educational program on July 31.
September 2012 / The New York County Lawyer
Events Calendar All events, unless otherwise noted, will be held at NYCLA Home of Law, 14 Vesey Street. Visit the Association’s website, nycla.org for more details, schedule changes and additions, and to R.S.V.P. for events, which are subject to change.
September Second Annual Law Student Reception and Mentor for a Day Auction Wednesday, September 5 - 6:30 p.m. Join the Young Lawyers’ Section for an evening of food, drink, networking, and fun! Law students, “bid” auction-style (with fake money) on a mentor for the chance to “shadow” a lawyer or a judge for a day and make a valuable connection, at no cost to you. An opportunity that no law student should miss! Take advantage of complimentary event registration now. Public Service Awards and Reception Wednesday, September 12 – 6 p.m. Since 1990, NYCLA’s Committee on Public Service Awards has annually pre-
sented its Public Service Awards to honor lawyers in the public sector who have distinguished themselves as role models, innovators and problem solvers of complex legal issues. The Awards recognize the efforts of lawyers who dedicate themselves to public service, but whose achievements are not often publicly acknowledged.
Legal Counseling Project-Part I Wednesday, September 12, 2012 – 6 p.m. NYCLA members in good standing can volunteer to provide counseling to clients seeking advice in the areas of family law, consumer bankruptcy law, landlord/tenant law, and employment law at our Legal Counseling Project evening clinics. No representation of any kind is undertaken. You may be asked to review documents, answer questions, discuss areas of concern that the client should be aware of when entering into certain agreements, point out various methods whereby the client can correct a problem or seek appropriate assistance and direction.
Mentors, who are experts in the four areas, are available by phone on each clinic night to assist the volunteer attorneys. You must be admitted to the New York bar for at least two years, have one year of legal practice experience and attend both training sessions-Wednesday, September 12 and Wednesday, September 19. You will be covered under NYCLA’s malpractice insurance policy. You must commit to counsel clients one night per month from October 2012 through June 2013. Six (6) CLE credits will be awarded upon completion of the commitment. To register or for further information, call Lois Davis, director of Pro Bono Programs, at 212-267-6646, ext. 217 or email firstname.lastname@example.org. In Chambers with Hon. Karla Moskowitz Thursday, September 27 - 12:30-1:30 p.m. The Young Lawyers’ Section presents, “In Chambers” with Hon. Karla Moskowitz, Associate Justice, Appellate Division, First Department
October Nanette Dembitz Lecture: The Close to Home Initiative Thursday, October 4 - 6 p.m. Join NYCLA’s Family Court and Child Welfare Committee for the annual Nanette Dembitz Lecture, “The Close to Home Initiative and its Effects on New York City’s Juvenile Justice System.” Speakers: Ronald Richter, Commissioner of the Administration for Children’s Services; Vincent N. Schiraldi, Commissioner of the NYC Department of Probation; Honorable Monica Drinane, Supervising Judge of Bronx County Family Court; Tamara Steckler, Attorneyin-Charge, The Legal Aid Society Juvenile Rights Practice; Michael Corriero, Executive Director and Founder of the New York Center for Juvenile Justice. Moderator: Stephanie Gendell, Associate Executive Director for Policy and Public Affairs, Citizens Committee for Children.
(See Events Calendar on page 13)
NYCLA Honors Public Sector Attorneys United States Attorney for S.D.N.Y. to Keynote Public Service Awards Reception On Wednesday, September 12 at 6 p.m., the New York County Lawyers’ Association (NYCLA) will hold its 22nd Annual Public Service Awards Reception. Chaired by former NYCLA President, Catherine A. Christian, and held at the Home of Law, 14 Vesey Street, the Awards Reception will honor public sector attorneys and will feature keynote remarks by Preet Bharara, United States Attorney for the Southern District of New York. Nominated by President Barack Obama and unanimously confirmed by the U.S. Senate in 2009, as U.S. Attorney, Mr. Bharara oversees the investigation and litigation of all criminal and civil cases brought on behalf of the United States in the Southern District of New York. He supervises an office of more than 220 Assistant U.S. Attorneys, who handle a high volume of cases that include domestic and international terrorism, narcotics and arms trafficking, white collar crime,
public corruption, gang violence, organized crime, and civil rights violations.
Statewide Electronic Filing Program, Supreme Court, Civil Branch, New York County
Since 1990, NYCLA has annually presented its Public Service Awards to honor lawyers in the public sector who have distinguished themselves as role models, innovators, and problem solvers of complex legal issues. The Awards recognize the efforts of lawyers who dedicate themselves to public service, but whose achievements are not often publicly acknowledged.
• Abigail Everett, Senior Supervising Attorney, Center for Appellate Litigation • Elie Honig, Assistant United States Attorney, Criminal Division, U.S. Attorney’s Office, Southern District of New York
• Jessica Rose, Director, Community and Economic Development Unit, Brooklyn Legal Services Corporation A, Legal Services NYC
The 2012 award recipients:
• Jane Azia, Bureau Chief, Bureau of Consumer Frauds and Protection, Office of the New York State Attorney General
• Carolyn Coffey, Supervising Attorney, Consumer Rights Project, MFY Legal Services
• Kevin Egan, Principal Legal Adviser,
• Gail Rubin, Division Chief, Affirmative Litigation Division, New York City Law Department
Preet Bharara, United States Attorney for the Southern District of New York
Also at the Awards Reception, NYCLA’s Criminal Justice Section, chaired by Keith
(See Public Sector Attorneys on page 13)
10 September 2012 / The New York County Lawyer
LIBRARY NOTES Veterans deserve our thanks and support for serving our country and this includes our support as members of the legal profession. Don’t wait for Veterans Day to offer your assistance—check out the below websites to read how you can help veterans using your legal expertise. Veterans Law Resources http://www.veteranslawlibrary.com/brief_ overview.html A comprehensive collection of materials relating to the Veterans Benefits Adjudication process. Veterans Law Review http://www.bva.va.gov/VLR.asp
charitable organization acting to ensure that the U.S. government honors the pact made with our 25 million veterans. It serves these forgotten men and women through advocacy and training, education, publications, and pro bono litigation. NVLSP also recruits, trains, and assists thousands of volunteer lawyers and veterans’ advocates. Lawyers Serving Warriors: A Project of the National Veterans Legal Services Program http://www.lawyersservingwarriors.com/ Free Representation to veterans with disability issues from all eras. The Veterans Consortium Pro Bono Program: Providing Representation to Veterans at the U.S. Court Appeals for Veterans Claims http://www.vetsprobono.org/ Did you know that every veteran or survivor who has taken an appeal to the U.S. Court of Appeals for Veteran Claims, who has a legally credible claim, and who wishes to be represented by counsel, shall have competent representation? This program supports this right
U.S. Department of Veterans Affairs http://www.va.gov/ National Veterans Legal Services Program http://www.nvlsp.org The National Veterans Legal Services Program (NVLSP) has been the voice of veterans’ rights for more than 25 years. NVLSP is an independent, nonprofit,
by providing pro bono services to veterans. Court of Appeals for Veterans Claims Bar Association http://www.cavcbar.net/ The Court of Appeals for Veterans Claims Bar Association was created to improve and facilitate the administration of justice in the United States Court of Appeals for Veterans Claims. Its goal is to provide information and services to the community for those individuals interested in facilitating justice for veterans. It publishes the Veterans Law Journal http://www.cavcbar.net/html/jour-nals.html ABA Law Student Division. National Veterans Initiative http://www.americanbar.org/groups/law_s tudents/initatives_awards/vets.html Duty Bound is a National Veterans Service initiative of the ABA Law Student Division. It connects law students with attorneys who provide free legal assistance on behalf of veterans and their qualifying family members who have an appeal pending at the U.S. Court of Appeals for Veterans Claims.
Veterans Legal Assistance Clinic Thomas Jefferson School of Law http://www.tjsl.edu/clinics/veterans-clinic This is an example of a Law School Clinic offered at Thomas Jefferson School of Law in San Diego. There are no similar clinics in New York or in New Jersey at the present time. American Association of Law Libraries – State, Court, County Law Libraries SIS Handout http://www.aallnet.org/sis/sccll/docs/aallhandout.doc “Quick & Dirty Guide to Veterans’ Law” by Bernard J. Sussman, JD, MLS
New Book Stichman, Barton and Ronald Abrams, Veterans Benefits Manual, 11th Edition, 2011. Lexis Nexis: Charlottesville, VA. Please send an email to email@example.com if you would like more information about this book.
Digital Training Center CLE Programs
Unless otherwise noted, courses are free and open to the public
Westlaw: Basic September 12 – 10-11 a.m. 1 MCLE Credit: 1 Skills; Transitional
Westlaw: Litigation Materials Research September 12 - 11:30 a.m.-12:30 p.m. 1 MCLE Credit: 1 Skills; Transitional
Using Bloomberglaw.com for Litigation September 13 - 10-10:50 a.m. 1 MCLE Credit: 1 Skills; Transitional NY and NJ Using Bloomberglaw.com for a Corporate Transactional Practice September 13 - 11:05 - 11:55 a.m. 1 MCLE Credit: 1 Skills; Transitional NY and NJ
Lexis: I September 19 – 10:30 – 11:30 a.m. 1 MCLE Credit: 1 Skills; Transitional Lexis: II September 19 – 12-1 p.m. 1 MCLE Credit: 1 Skills; Transitional
Lexis: Shepard’s Citation Services September 19 - 1:30 - 2:30 p.m. 1 MCLE Credit: 1 Skills; Transitional
Lexis Expert Witness Searching October 11 - 2:00 - 3:00 p.m. 1 MCLE Credit: 1 Skills; Transitional
Westlaw: Intermediate September 25 - 1:30 - 2:30 p.m. 1 MCLE Credit: 1 Skills; Transitional
Using Bloomberglaw.com for Litigation October 18 – 10-10:50 a.m. 1 MCLE Credit: 1 Skills; Transitional NY and NJ
Westlaw: Immigration Law September 25 – 3 - 4 p.m. 1 MCLE Credit: 1 Skills; Transitional
Using Bloomberglaw.com for a Corporate Transactional Practice October 18 - 11:05 - 11:55 a.m. 1 MCLE Credit: 1 Skills; Transitional NY and NJ
U.S. Bankruptcy Court Electronic Case Filing System September 26 – 10 a.m.-12:30 p.m. 2.5 MCLE Credits: 2.5 Skills; Transitional, NY and NJ Member: $65 Non-member: $85 Non-legal Staff: $35
Westlaw: Advanced October 10 – 10-11 a.m. 1 MCLE Credit: 1 Skills; Transitional
Westlaw: Employment Law October 10 - 11:30 a.m.-12:30 p.m. 1 MCLE Credit: 1 Skills; Transitional
Lexis: I October 11 – 11:00 a.m. – 12:90 p.m. 1 MCLE Credit: 1 Skills; Transitional
Lexis: Research Update October 11 – 12:30 – 1:30 p.m. 1 MCLE Credit: 1 Skills; Transitional
U.S. Bankruptcy Court Electronic Case Filing System October 24 – 10 a.m.-12:30 p.m. 2.5 MCLE Credits: 2.5 Skills; Transitional, NY and NJ Member: $65 Non-member: $85 Non-legal Staff: $35 Westlaw: Basic October 30 - 1:30 - 2:30 p.m. 1 MCLE Credit: 1 Skills; Transitional Westlaw: Criminal Law October 30 – 3 - 4 p.m. 1 MCLE Credit: 1 Skills; Transitional
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September 2012 / The New York County Lawyer 11
Internet Access in New York City Courts (former Assistant U.S. Attorney, E.D.N.Y. 2001-06, currently Assistant Professor at the Georgia State University College of Law), Jury 2.0, 62 Hastings L.J. 1579, 1583 (July, 2011). The best answer may be a jury instruction that explains why it’s important that juries not use the Internet to converse with and obtain information from sources outside the courtroom:
By Alexander Goldman Federal Court system
There is no Internet access in Federal courts in New York City. Rule 53 of the Federal Rules of Criminal Procedure (available at http://www.law.cornell.edu/ rules/frcrmp/rule_53) is understood by many courts to prohibit such access in the courtroom. The rule states, “Except as otherwise provided by a statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.”
The 2002 committee notes to the rule show that although the word “radio” was deleted from the rule, audio-only broadcasting is also prohibited. The notes cite United States v. McVeigh, 931 F. Supp. 753 (D. Colo. 1996), prohibiting the release of tape recordings of proceedings. The defendant in McVeigh is better known as the “Oklahoma City bomber” for his fertilizer bomb attack on a federal building. The press wanted recordings of the famous proceedings for its own use. The court initially permitted this, by extending the speaker system to a press room where the media could obtain recordings. The court later barred the practice, ruling, “[u]pon reflection, it is this court’s conclusion that the ready access to the sound recordings has resulted in the functional equivalent of a broadcast of the court proceedings in violation of Rule 53.” McVeigh, 931 F. Supp. at 755.
The Southern District here in New York has interpreted the rule as prohibiting Internet access in the court room, according to Stephanie Cirkovich, Public Information Officer for the United States District Court for the Southern District. The Eastern District appears to have interpreted Rule 53 in the same way, as the local rules show (the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York are available at http://www.nyed.uscourts.gov/sites/default/files/local_rules/l ocalrules.pdf. Local Civil Rule 1.8 bars recording of any kind – unless the court specifically rules otherwise by administrative order. The rule states, “Unless authorized to do so by an administrative order of each respective Court, no one other than Court officials engaged in the conduct of Court business shall bring any camera, transmitter, receiver, recording device, cellular telephone, computer or other electronic device into any courthouse.” The notes to the rule say that some courts may allow recording devices if, by custom, they have allowed them in the past. Unified New York State Court System It should be no surprise that there is no Internet access in courtrooms of the Unified New York State Court System.
Even media coverage of judicial proceedings is permitted only under the specific and restrictive procedures described in Part 131 of the Rules of the Chief Administrative Judge of the New York State Unified Court System (the rule is available at http://www.nycourts.gov/ rules/chiefadmin/131.shtml). It controls media coverage by requiring the press to apply for permission to cover the proceedings, by permitting no more than two cameras at any time, by allowing certain witnesses (such as minors) to object to coverage, and through other restrictions. Should There Be Internet Access in New York City Courtrooms?
The rules on Internet access in the courtroom vary by state. While the rules forbid Internet access in New York courtrooms, local rules in other states permit such access in the courtroom. Some commentators see Internet access as a means to level the playing field in litigation between solo practitioners on one side and better financed larger law firms on the other side. “[A]dvances in technology have made it easier for solo practitioners to present their cases in a way that costs less money, allowing attorneys to devote more resources to what matters most: getting the best result for their clients,” writes The Honorable Lenore R. Gelfman, Administrative Judge for the Howard County Circuit Court in Maryland, in an article co-authored by her law clerks Darren Weiss and Carolyn Mech. 45 Maryland Bar Journal 43 (May/June, 2012). If there is Internet access in the courtroom, the article notes, then practitioners can use digital sources and can carry less paper. While using the Internet to access Lexis and Nexis is not controversial, using it
to access social media during voir dire in order to evaluate potential jurors is an ongoing controversy across the United States. In a recent case in New Jersey, a lower court barred one attorney from using the Internet during voire dire when his opponent said that the use of the Internet constituted an unfair advantage. Upon review, Appellate Division ruled that the attorney who had brought his laptop should be allowed to use it: “[t]he ‘playing field’ was, in fact, already ‘level’ because [I]nternet access was open to both counsel, even if only one of them chose to utilize it.” Carino v. Muenzen, No. L-0028-07, 2010 WL 3448071 (N.J. Super. Ct. App. Div. Aug. 30, 2010), cert. denied, 205 N.J. 100 (2011), cited in “Juror Investigation: Is In-Courtroom Internet Research Going Too Far?,” 7 Wash. J. L. Tech. & Arts 93, 99 (Fall, 2011). There is an extensive, ongoing debate on this issue, too detailed to summarize here. Extreme suggestions include the use of “scientific jury techniques,” in-depth polling of jurors that can predict their decisions with the accuracy of an election pollster, which would eliminate the need for investigating jurors by using social media. Collin P. Wedel, Note, Twelve Angry (And Stereotyped) Jurors: How Courts can Use Scientific Jury Selection to End Discriminatory Peremptory Challenges, 7 Stan. J. Civ. Rts. & Civ. Liberties 293 (October, 2011). Does social media use by jurors threaten the legal process? Internet access can break four categories of rules: “(1) rules that prohibit juror information gathering, (2) rules that forbid jurors from making conclusions of law, (3) rules that govern the secrecy and integrity of the deliberation process, and (4) rules that forbid improper contact between jurors and outside parties.” Caren Myers Morrison
Advertise in tHE New York County Lawyer Call 631-427-7000
We go to some great lengths to make sure that all of the information or input you get about this case comes from people who walk into this courtroom, swear to tell the truth, sit in this chair, and say what they have to say in front of the prosecutor, in front of the defendant, and in front of all of you. And we do that because that’s the fair way to do it. If you get information, even comments, input from somebody else where the defendant can’t hear, or the prosecutor can’t hear what you’re hearing, or your fellow jurors, that’s not fair. That is not a fair way to decide a criminal charge in this country. What’s fair is for you to decide this case only on what happens inside this courtroom.
Video: Hon. Donald E. Shelton, “No Googling, No Texting” Jury Instruction Video, Nat’l Ctr. for State Cts. (Sept. 13, 2010, 11:42:45), http://www.ncsc.org/topics/jury/juryselection-trial-and-deliberations/ resource-guide.aspx (scroll down to “Jury Instructions” subheading) (last visited July 4, 2011), cited in Jury 2.0, 62 Hastings L.J. at 1627-28. The judge tells jurors not to use the Internet and then says: So I have two ways I can do this. I can lock you up—it’s called sequestering, it’s a fancy word for locking you up—during the course of the trial, or I can have you promise me that you will strictly abide by my instructions during the trial, and not do any investigations, not have any communications about the case . . . . Will each of you promise me that you will follow those instructions?
Id. at 1628.
In conclusion, there are a number of good reasons why Internet is barred in the courtrooms of New York City and therefore it seems that Internet access in the courtrooms will not be allowed in the near future.
Alexander Goldman, a NYCLA and Cyberspace Law Committee member, is a 2L at Brooklyn Law School. A former Internet trade journalist, he is studying the law of contracts, corporations, telecommunications, and government regulation.
12 September 2012 / The New York County Lawyer
The Pitfalls of Legal “Do-It Yourself” Sites By Genan F. Zilka, Esq.
A friend wishing to start a business approached me several months ago, asking for some legal advice. I advised her to the best of my ability and offered to provide her with contacts for other lawyers who might be able to help. “It’s okay,” she said. “I don’t think I’m going to hire a lawyer I’ll just go to Nolo.com.” I’d never heard of Nolo.com. When I looked at the Nolo.com website, I was disturbed by the offers for “free legal information” on the site’s homepage not only because of a fear that such legal services might make live lawyers obsolete, but also because of a concern for what would happen to nonlawyers who use these websites.
The focus of this article will be on LegalZoom.com and Nolo.com, simply because they are well known and provide similar, but different, services. LegalZoom.com focuses primarily on providing assistance with creating legal documents and filing them with the appropriate government office (if necessary). Although LegalZoom.com also provides “legal plans” where a customer can consult an attorney in a limited capacity for a flat monthly fee, the focus of the website is to provide assistance with legal documents. Nolo.com began as a legal do it yourself publisher in 1971, and has since expanded to providing legal guidance to consumers. In addition to columns answering legal
questions, Nolo.com also provides software and online programs that assist consumers with filling out and filing legal forms. Nolo.com also provides a directory of lawyers. The growing popularity of these websites has led to concerns about not only about the current path of the legal industry, but also the effect these websites will have on the consumer who chooses them, opting to act as their own lawyers instead of actually hiring a lawyer.
Both LegalZoom.com and Nolo.com have been the subject of lawsuits accusing them of the unlicensed practice of law. LegalZoom.com has been accused of the unlicensed practice of law in at least the states of Ohio and Missouri, although in Ohio, the action was dismissed after the site brought a motion to dismiss, and in Missouri, summary judgment was granted in favor of it. Nolo.com was the subject of a hearing about the unlicensed practice of law in Texas in 1998.1 The Texas legislature then amended Section 81.101 of the Texas Government Code to specifically state that services like Nolo.com were not considered to be the unlicensed practice of law so long as the “products clearly and conspicuously state that the products are not a substitute for the advice of an attorney.”2
LegalZoom.com was formed in part by Robert Shapiro, a noted attorney, in 1999 to provide an “easy-to-use, online service that
helped people create their own legal documents.”3 Documents are location specific, so a person seeking to form an LLC in New York will fill out a form that will comply with New York law.
LegalZoom.com also offers services pertaining to wills, trusts, divorces, bankruptcy and the like. In addition to the legal document services, LegalZoom.com provides, it offers articles about legal issues such as “What is an LLC,” “How to start the Divorce Process,” and “How to get copyrights.” A disclaimer at the bottom of the homepage states specifically that it is not a law firm, and cannot “provide legal advice and can only provide self-help services at your specific direction; LegalZoom.com cannot provide any kind of advice, explanation, opinion, or recommendation to a consumer about possible legal rights, remedies, defenses, options, selection of forms or strategies.” In addition to this, since LegalZoom.com does not represent that it is a law firm, it cannot notify a consumer that he or she is doing something legally inaccurate. A New York Times article from 2002 notes that the employees of LegalZoom.com who review the final product are not attorneys and therefore mostly review the completed documents for spelling errors and inaccuracies, while remaining silent about possible legal issues.4 Leaving such legal questions blank can lead to later lawsuits or invalidations. In addition to this, other articles have touched on potential problems that con-
sumers of LegalZoom.com may have. For example, although it may save money upfront, another New York Times article presents examples of people being forced to litigate as a result of wills created through these services, or other situations where heirs lost significant sums of money to taxes.5
Like LegalZoom.com, Nolo.com permits consumers to fill out and submit legal forms on the web, and create legal documents, like wills. Unlike LegalZoom.com, though, Nolo.com does not represent that it checks the completed forms for accuracy. Instead, Nolo.com simply offers step-bystep guidelines to facilitate completing these forms. Nolo.com also touts its “Free Legal Information and Solutions.”6 Like WebMD, Nolo.com permits consumers to “self diagnose” their legal issues. While Nolo.com refers consumer to attorneys who can handle these legal issues, Nolo.com also supplies enough information to make it that a person reading one of these websites believe that he or she may handle the legal issues themselves. For example, Nolo.com presents steps for filing for bankruptcy, which make the entire process seem simple and something anyone could handle. Although a person does not need to hire a lawyer to represent them in these proceedings, failing to hire a lawyer who may better represent this person’s interests, and who may better know the intricacies and subtleties of the practice area might end up (See Do-it-yourself legal sites on Page 13)
NYCLA In The News A roundup of recent national and local news stories featuring NYCLA and its members
Now that state courts are finding themselves in the middle of the fight over stop-and-frisk, Inside City Hall’s Errol spoke with NYCLA’s President Stewart Aaron and its Criminal Justice Section co-chair, Alison Wilkey, and other guests on why they think it’s time to lower the volume. NY1 News Legal Concerns of Stop-and-Frisk Debate August 2, 2012
This article talks about NYCLA and other bar associations’ efforts to encourage the media to temper attacks of judges who have recently ruled in stop and frisk cases. It mentions that NYCLA wrote to both the Post and Daily News to protest the tone of the criticism of the courts and mentions that Stewart Aaron, NYCLA’s president, said in a July 16 statement that the stop-and-frisk decisions had been “carefully crafted by thoughtful judges.” It quotes Aaron saying, “Judges have to make difficult calls based on the record before them. They can’t take into account, ‘Oh gee, I wonder how Mayor Bloomberg is going to react to this one; how Commissioner Kelly is going to react to that one.’ They need to base decisions on facts and law and not be concerned what some newspapers are
going to say or what someone in the executive branch is going to say.” New York Law Journal Defenders of Courts Urge Critics of Rulings to Temper Attacks July 27, 2012
This article features a photo taken at NYCLA’s July 10 Lunch with a Judge program and mentions that NYCLA has scheduled a number of such events in July giving summer associates and legal interns the opportunity to discuss the law with jurists. New York Law Journal NYCLA Hosts Lunch with a Judge July 16, 2012 A letter to the editor of the Daily News from Stewart Aaron regarding the July 4 Op-Ed, Judges’ decision throwing out stop-and-frisk is a death sentence for New York, was published by the newspaper. New York Daily News Letter to the Editor July 7, 2012
A letter from NYCLA’s President, Stewart Aaron, appears in the July/August issue of this publication and on its website. It focuses on worklife balance and how to achieve it. The Metropolitan Corporate Counsel Letter from the President of the New York County Lawyers’ Association July/August 2012
September 2012 / The New York County Lawyer 13
Do-it-yourself legal sites (Continued From Page 12)
being more costly in the future. Websites like LegalZoom.com and Nolo.com are dangerous because they provide what could be considered by a consumer to be legal advice and legal services, despite any statements to the contrary. Even though these sites do not directly represent that they are providing legal advice and legal services, they provide enough information that a reasonable layperson might believe that he or she does not need a lawyer. Although these websites might force lawyers to become more competitive with their fees, it is will be overwhelmingly difficult for an attorney to be able to provide wills, or incorporate a business for the amount charged by these websites.
Recently, publications like Consumer Reports have written about the potential problems with these websites, such as the potential for an “unintended result,” especially in the situation of wills.7 The increased availability of the Internet, as well as the current economy will lead to an increased use of these websites, opening its users to potential unintended liability. The long term implications of the increased use of these websites on consumers and on the legal profession remains to be seen. Genan F Zilkha, Esq., a NYCLA member, is an attorney practicing in New York. She focuses her practice on counseling individuals and small businesses in their legal needs. She is a graduate of Fordham Law and was previously associated with Lawrence W. Rader, Esq. Footnotes: 1 A Matter of Law: Texas vs. Nolo Press, Business Week Online, March 26, 1998
http://www.businessweek.com/bwdaily/dnflash/mar1998/nf80326b.htm 2 SUBCHAPTER G. UNAUTHORIZED PRACTICE OF LAW, § 81.101, Texas State Bar Act, http://www.statutes.legis.state.tx.us/Doc s/GV/htm/GV.81.htm#81.101 3 About Us, LegalZoom.com, http://www.LegalZoom.com.com/aboutus 4 Fred Bernstein, Being of Sound Mind, and a $55 Consultation, New York Times, May 16, 2002 (http://www.nytimes.com/2002/05/16/te chnology/being-of-sound-mind-and-a55-consultation.html) 5 Christine Larson, A Need for a Will? Often, There’s an Online Way, New York Times, October 14, 2007 http://www.nytimes.com/2007/10/14/bus iness/yourmoney/14wills.html 6 Free Legal Articles & FAQs, Nolo.com, http://www.nolo.com/legal-encyclopedia 7 Legal DIY websites are no match for a pro They provide services for a fraction of what you’d pay a lawyer, Consumer Reports Magazine, September 2012 http://www.consumerreports.org/cro/magazine/2012/09/legal-diy-websites-are-nomatch-for-a-pro/index.htm. See also Joan E. Lisante, Do-It-Yourself Legal Forms — Plus or Peril, Consumer Affairs http://www.consumeraffairs.com/forms/use _forms.html Write your own will? We tested 3 software products that claim to help you do it Last reviewed, Consumer Reports, July 2011,http://www.consumerreports.org/cro/money/retirement-planning/write-your-own-will/overview/ index.htm Dawn Kawamoto, DIY Legal Sites: Are You the Only Lawyer You Need?, The Motley Fool, March 20, 2012 http://www.dailyfinance.com/2012/03/2 0/diy-legal-sites-are-you-the-onlylawyer-you-need/
The New York Center for Neuropsychology & Forensic Behavioral Science Dr. N.G. Berrill, Director
[ Over 25 Years \ Providing Consultation to Attorneys & the Courts on Psycho-legal Matters • Criminal Cases: Competency Issues, Criminal Responsibility, Extreme Emotional Disturbance, Risk Assessment, Sex Offender Workups & Dispositional Planning
• Matrimonial & Family Court Cases: Custody/Visitation, Neglect/Abuse, Termination, Delinquency, Family Violence, & Adoptions
• Civil Cases: Competency Issues, Head Trauma, Sexual Harassment, Discrimination, Immigration, & Post-Traumatic Stress Disorders
Events calendar (Continued From Page 9)
New York State’s Campaign Against Sex Trafficking: What’s Next Conference Friday, October 5 - 9 a.m.–12:30 p.m. NYCLA is co-sponsoring this conference. Fordham Law School, McNally Amphitheatre, 140 West 62nd Street Hosted by the Feerick Center for Social Justice of Fordham Law School 2.5 CLE credits available free of charge Current Trends and Career Development in ADR Thursday, October 11 – 7 p.m. This Young Lawyers Section event will include the following panelists: Robert
Public Sector Attorneys Schmidt and Alison Wilkey, will recognize winners of its 2012 Public Service Fellowship Essay Contest, newly admitted public sector attorneys working in the criminal justice field carrying more than $30,000 in educational debt. The contest winners, prosecutor and institutional defense attorneys practicing up to seven years, will be awarded cash stipends of at least $2,000 to alleviate educational debt. (Continued From Page 9)
B. Davidson, Executive Director, JAMS Arbitration Practice; Kenneth L. Andrichik, Senior Vice President, Chief Counsel and Director of Mediation and Strategy, FINRA Dispute Resolution; James E. Berger, Of. Counsel, Paul Hastings; Hon. Betty Weinberg Ellerin, Special Counsel, Alston & Bird LLP. Event Chairs, Harold Rodriguez, Esq. and Anna Mitchell, Esq. Federal Courts Luncheon Wednesday, October 24 - 12 noon The NYCLA Edward Weinfeld Award for Distinguished Contributions to the Administration of Justice wil be presented to Judge Sidney H. Stein of the U.S. District Court for the S.D.N.Y. by Judge Ralph K. Winter, U.S. Court of Appeals for the Second Circuit. Sponsored by the Federal Courts Committee.
“Lawyers in the public sector use their legal expertise to better others and society,” says Christian. “Through the Public Service Awards, NYCLA recognizes how wholeheartedly these individuals devote themselves to various causes to in turn better society, honoring those who have gone above and beyond.” All members are invited to attend the 22nd Annual Public Service Awards Reception. Visit nycla.org to R.S.V.P. for this special event.
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14 September 2012 / The New York County Lawyer
“Hello Kitty Must Die” by Angela S. Choi By Monica Trombley, Esq.
Looking for a very funny book that will make you nearly miss your subway train during the morning commute? Well, look no further than “Hello Kitty Must Die” by Angela S. Choi. Ms. Choi is a former BigLaw associate who decided to walk away from the long hours and become a writer at the age of 30. Choi’s first foray into the world of fiction will bring laughs while providing an unvarnished viewpoint of working in a large law firm. Fiona Yu, the 28-year-old main character, struggles to find a balance between who she wants to be and the pressures and expectations of her traditional Chinese culture. The book opens with Fiona deciding to rebel against the ultimate “good girl” expectation and taking matters into her own hands, literally. Her attempt at rebellion, however, does not go as planned. She seeks out specialized medical attention and vows to pay the high price tag for a special kind of surgery just so she can defy this tradition. The specialist she meets with is none other than her old friend from Catholic
school, Sean. Fiona recalls Sean as a rebel and a consistent troublemaker she both admires and is a little afraid of. He talks her out of getting the surgery and they resume their friendship. Sean is the devil on Fiona’s shoulder who talks her into doing the unspeakable and the unpredictable in order to serve her own self-interests.
Sean also has a secret. His dirty little secret results in some good luck for Fiona. Unemployment, a tyranical boss, unwelcome suitors: whatever the obstacle or enemy, Sean is always there to listen like a good friend. After these conversations, Fiona’s obstacles and problems end up vanishing like blades of grass into a lawnmower. Recalling how they first met, Fiona wonders if Sean is once again fighting her bullies for her and taking care of them just like he took care of her first tormentor. Fiona later takes a cue from Sean’s playbook to get out of her forced engagement to Don, a young man from a traditional Chinese family that her parents claim she is engaged to despite her protests to the contrary. Once again
courts will look at these factors: 1) whether the content is material and necessary to prove the case; 2) if there are other means to obtain the content; and 3) will the requesting party be at a disadvantage without accessing the content.
Social networking and eDiscovery (Continued From Page 1)
ings on these sites are admissible.
Privacy settings relevant. In Dexter v. Dexter, 2007 Ohio App. LEXIS 2388, the appellate court found that a parent seeking custody could not claim an expectation of privacy in “publicly accessible” writings on MySpace detailing her intent to commence using drugs after the custody proceedings.
Privacy settings not relevant. In Romano v. Steelcase, Inc., 907 N.Y.S. 2d 650 (2010), a New York court held that a social networking user has no reasonable expectation of privacy, notwithstanding her privacy settings, because the sites do not guarantee complete privacy. In this personal injury case, the court found that based on the publicly available information in Romano’s profile, it was reasonable to conclude that the private portions of her profiles would contain more evidence that would be material and relevant. In deciding whether to allow a party to discover social network information,
In a civil case, you can obtain information via:
• Request for production for specific documents or content from party’s profile.
• Request the party’s log-on name and password in an interrogatory or deposition. • Request court order providing for disclosure and/or in camera review.
In Offenback v. L.M. Bowman, Inc., 2011 U.S. Dist, LEXIS 66432 (M.D. Pa.), a case in which Offenback was suing for injuries sustained in an automobile accident, the district court was asked to review Offenback’s Facebook profile. The court found a posting about Offenback’s multi-state motorcycle trip, which was clearly relevant. The court did state, however, that Offenback should have produced the information without the court being involved in the discovery process. In Barnes v. CUS Nashville, Inc., 2010 WL 2265668 (M.D. Tenn.), the court went so far as to offer to provide an
taking matters into her own hands, she seizes an opportunity and regains control of her own destiny.
While Sean gets deeper and deeper into his hobby, Fiona decides she wants out. These happy accidents start to leave Fiona with some strong pangs of conscience. Eventually, Fiona’s nagging conscience just will not go away or shut up.
Ms. Choi gives a cynical, honest, and truthful voice to young female lawyers. In the age of mounting attacks on women’s personal autonomy, Fiona is an unlikely hero for the childfree and anyone who is bucking mainstream society’s expectations of them. This is not a book for the squeamish or those with delicate sensibilities.
Monica Trombley, Esq., a NYCLA and Entertainment Intellectiual Property & Sports Section member, is the Production Executive/In-House Counsel of One Way or Another Productions LLC. A graduate of Quinnipac University School of Law, she also writes a humorous rant blog called “The Angry Redheaded Lawyer“ (www.theangryredheadedlawyer.com).
in camera review by becoming Facebook friends with the party in order to review their private content for relevancy.
Recently, a federal magistrate denied a motion to compel production of Facebook records in a personal injury case. In Tompkins v. Detroit Metro Airport, 2012 U.S. Dist. 5749 (E.D. Mich. January 18, 2012), plaintiff Tompkins claimed back injuries from a slip and fall at the airport. The airport argued that Tompkins might be faking her injuries, referencing photos from her public Facebook pages and surveillance photos showing her holding a small dog and pushing a grocery cart. The airport sought to review Tompkins’ entire Facebook account. The district court found the request overbroad and the data not relevant, since pushing a grocery cart would not be inconsistent with Tompkins’ claims. The court said that had the photos shown her golfing or lifting heavy packages, the airport would have stronger argument. Therefore, narrowly tailored discovery requests for social networking data are more likely to be approved by the court.
Data obtained from social networking websites continues to become more essential to developing a parties’ case. Production of that data, however, has become more burdensome for the
companies developing the technology. Facebook has recently made more information available to be downloaded by an individual user. The new data provides even greater historical information about Facebook users. In summary, some courts have ruled that using Facebook, Twitter or other social media platforms is fair game, since they are part of the Internet: a public space. More recently, decisions regarding the admissibility of eDiscovery are giving shape to new precedence:
• A broad request for information and unrestricted access to social media profiles in an attempt to find evidence which can support (or destroy) a case is not acceptable. • A specific request for social media discovery seeking relevant information, which is directly related to any allegations in question, is acceptable.
Joseph J. Bambara, Esq., a NYCLA and Cyberspace Law Committee member, is In House Counsel, and a VP of technology architecture at UCNY, Inc. He is a graduate of Brooklyn Law School. You can reach Joseph at email@example.com or on Twitter @jbesquire7.
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Cloud computing (Continued From Page 1)
ogy satisfies the requirements of their particular state’s ethics rules. To date, Bar Associations in 11 states have issued Ethics Opinions opining that so long as an attorney uses “reasonable care” in their selection and use of a particular cloud vendor, they have complied with their ethical obligations. Notably, no Opinions have analyzed the issue and found an attorney’s use of the cloud to be inherently unethical. Every attorney must conduct their own due diligence before entrusting their client’s data to the cloud. While there is no accepted definition of the “reasonable care” required, a good starting point for New York lawyers is the New York State Bar Association’s Ethics Opinion 842, which offers three steps that an attorney may take when evaluating a particular cloud service, which can be summarized as: (1) ensuring that the provider has an enforceable obligation to preserve confidentiality; (2) investigating the provider’s security measures; and (3) employing available technology to guard against reasonably foreseeable threats. For those who understand the risks, and how to manage them, there are a number of different ways to incorporate cloud computing into your law firm or practice. Depending on the level of comfort and commitment, an attorney can use one or all of the following options:
Cloud Based Law Practice Management. A number of companies offer full-service platforms designed specifically to help lawyers manage (almost) every aspect of their practice. For a monthly fee based on the number of users, these services provide integrated tools for organizing matters, calendaring, contacts, and billing. Many even offer custom document and invoice assembly. The greatest advantage of these services, instead of desktop or local-server based software, is the ability to access all your case files securely from anywhere with Internet access, including your phone or tablet. Two of the most popular options are Rocket Matter (www.rocketmatter.com) and Clio (www.goclio.com). For those who prefer a more established name, LexisNexis offers the well-reviewed Firm Manager (www.firmmanager.com).
Wa l l S t r e e t O f f i c e
File Synchronization and Backup. Services exist which not only backup your important files to the cloud, but automatically synchronize perfectly up-to-date versions of those files on as many computers as desired. This allows you to edit a document on your desktop, have it automatically downloaded to your laptop, and pull it up in Court on your iPad. Most importantly, copies of all files are saved on the provider’s servers—so they won’t be lost to computer or hard drive failures—as well as on your own machines, so you can access and edit them even without Internet access. Dropbox (www.dropbox.com) is the biggest and best known provider. All files stored on its servers are encrypted using AES-256 level encryption, which they note “is the same encryption standard used by banks.” It is not designed specifically for lawyers, and because it is the most popular provider, the service has its own unique set advantages and disadvantages. For example its size and popularity suggests that it’s far less likely (by Internet standards) to go out of business, but also makes it a worthwhile target for potential hackers. Notably, in July Dropbox informed its users of a recent security breach. It stated that there was no unauthorized access to any user’s documents, but that a list of e-mail addresses was taken, resulting in increased spam reported by some users. The service responded, saying that it has since “put additional controls in place” to prevent a future breach. For those who are uncomfortable with Dropbox, Trend Micro offers Safe Sync for Business which provides much of the same functionality as Dropbox, and comes with a 99.9% uptime guarantee (www.safesync.com).
Data Backup. If you take nothing else from this article, remember this — backup your data! Hard drives fail; files are lost due to fire and flood, and without proper backup a client’s file can be irretrievably lost. Although backing-up to a portable hard drive or local-server helps, cloud-based backup offers far greater security and redundancy. The services discussed above which offer data synchronization and backup are excellent options, but for those who don’t need the additional features or are uncomfortable using these services for confidential client information, a dedicated backup service may be a useful solution. There are many services, offering slightly different features, including some of the more popular ones such as Mozy Pro (www.mozy.com/pro) and Jungle Disk (www.jungledisk.com).
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This is far from an exhaustive list of cloud computing services and providers; other options include everything from full-scale virtual law firms to services designed to simplify billing and time tracking. The important thing to remember though, is that with due diligence and reasonable care, a lawyer can minimize their risk and
Keys to defensibility (Continued From Page 2)
random. Most CAR experts use the 95 percent confidence level, with an accompanying margin of error of +/-2.5 percent. The key here for prong one defensibility is that (a) both the confidence level and confidence interval be agreed to by the parties and (b) a report is generated at each phase of the CAR analytics process to document the manner in which samples are drawn and coded by the software.
The second defensibility prong is aimed at satisfaction of Rules 1 and 26 of the Federal Rules of Civil Procedure. That is, “the burden or expense of [the] discovery [process must] not outweigh its likely benefit”8 and assist in obtaining “the just, speedy and inexpensive” resolution of a case.9 Document intensive cases—in which traditional manual review is prohibitively costly, time consuming and error prone—make prime candidates for passing muster under this second defensibility prong. Consider the following data from a 2012 study conducted by the RAND Corporation: • Computer-assisted review enables case teams to identify at least as many relevant documents as manual review with almost the same level of accuracy. • Computer-assisted review can cut attorney review time by as much as 75 percent. • Computer-assisted review can achieve an 80 percent cost savings over traditional manual review.10
While these CAR statistics are impressive, the key to defensibility under this second prong is compiling detailed CAR vs. manual review cost comparison data, relevancy effectiveness data, and estimated review time data. In conclusion, the volume, complexity and variety of today’s data is challenging the
enjoy the benefits of the cloud.
William Aronin, Esq., a NYCLA and Cyberspace Law Committee member, is an Associate with Schwartzapfel Lawyers, P.C. where he practices personal injury, disability and workers compensation. He is a graduate of Brooklyn Law School. legal industry to find new ways to defensibly manage discovery. It is important to approach CAR defensibility in terms of method reasonableness combined with a robust audit trail. Such a framework will enable parties to rapidly and accurately identify relevant documents, completely eliminate irrelevant documents, prioritize the most relevant documents for review, achieve substantial cost savings, and pass judicial scrutiny. Dino E. Medina, Esq., serves as Deputy General Counsel of Complete Discovery Source, Inc., a NYCLA benefits partner. For more information about computer-assisted review technology and consulting services, please contact Dino at DMedina@CDSLegal.com, 212-8137042, or visit www.CDSLegal.com.
Footnotes: 1 See Fed. R. Civ. P. 26(b)(1) 2 Craig Ball, The DNA of Data, Law Technology News, April, 2005. 3 Nicholas M. Pace & Laura Zakaras. Where the Money Goes: Understanding Litigant Expenditures for Producing Electronic Discovery. Santa Monica, CA: RAND Corporation, 2012. http://www.rand.org/pubs/monographs/MG1208. 4 Dean Gonsowski, E-Discovery Costs: Pay Now or Pay Later, Inside Counsel, May 23, 2012. 5 Maura R. Grossman & Gordon V. Cormack, Technology-Assisted Review in E-Discovery Can Be More Effective and More Efficient Than Exhaustive Manual Review, XVII Rich. J.L. & Tech. 11 (2011). 6 The Sedona Conference, The Sedona Conference Commentary on Achieving Quality in the E-Discovery Process, 10 SEDONA CONF. J. 299, 320 (2009). 7 Alex Hoover, Top Ten Points on Computer Assisted Review, Association of Corporate Counsel, September 1, 2011. 8 FED. R. CIV. P. 1. 9 FED. R. CIV. P. 26(b)(2)(C)(iii). 10 See Pace & Zakaras, supra note 3.
16 September 2012 / The New York County Lawyer