The Arkansas Lawyer - Spring 2008

The Arkansas

Lawyer A publication of the

Arkansas Bar Association

Vol. 43, No.2, Spring 2008 online at www.arkbar.com

Inside: Beyond Trade Secrets: Protecting Business Information in Arkansas The Importance of E-Discovery E-Discovery and Record Retention: When Two Worlds Collide Preserving Electronically Stored Information With a Litigation Hold - What is it All About?

Publisher Arkansas Bar Association Phone: (501) 375-4606 Fax: (501) 375-4901 Homepage: www.arkbar.com E-Mail: ahubbard@arkbar.com editor Anna Hubbard executive director Karen K. Hutchins Associate executive director Tasha R. Henderson Editorial Board Philip E. Kaplan, Chair Judge Wiley A. Branton, Jr. Michelle H. Cauley Milton Fine, II William D. Haught Jim L. Julian Mary Beth Matthews Gordon S. Rather, Jr. Christopher Travis David H. Williams Teresa M. Wineland OFFICERS President Richard L. Ramsay Board of Governors Chair David B. Vandergriff President-Elect Rosalind M. Mouser Immediate Past President James D. Sprott Secretary-Treasurer William A. Martin Parliamentarian J. Leon Johnson Young Lawyers Section Chair Amy Freedman BOARD OF GOVERNORS Thomas M. Carpenter Niki T. Cung Richard C. Downing Causley Edwards Robert R. Estes, Jr. David M. Fuqua Charles L. Harwell Anthony A. Hilliard Colette D. Honorable Jim L. Julian Sean T. Keith Roy Beth Kelley Harry A. Light Chalk S. Mitchell Danny M. Rasmussen Charles D. Roscopf, Jr. Todd M. Turner John T. Vines Eddie H. Walker, Jr. Tom D. Womack Dennis Zolper

LIAISON MEMBERS Zane A. Chrisman Steven W. Quattlebaum Jack A. McNulty Karen K. Hutchins Judge John Dan Kemp Carolyn B. Witherspoon Donna C. Pettus Judge Michael Robinson

The Arkansas Lawyer (USPS 546-040) is published quarterly by the Arkansas Bar Association. Periodicals postage paid at Little Rock, Arkansas. POSTMASTER: send address changes to The Arkansas Lawyer, 2224 Cottondale Lane, Little Rock, Arkansas 72202. Subscription price to non-members of the Arkansas Bar Association $35.00 per year. Any opinion expressed herein is that of the author, and not necessarily that of the Arkansas Bar Association or The Arkansas Lawyer. Contributions to The Arkansas Lawyer are welcome and should be sent to Anna Hubbard, Editor, ahubbard@arkbar.com. All inquiries regarding advertising should be sent to Editor, The Arkansas Lawyer, at the above address. Copyright 2008, Arkansas Bar Association. All rights reserved.

The Arkansas

Lawyer Vol. 43, No. 2

features

10 Beyond Trade Secrets: Protecting Business Information in Arkansas Kevin M. Lemley

14 The Importance of E-Discovery Scott Dodson

16 E-Discovery and Record Retention: When Two Worlds Collide Todd L. Newton

20 Preserving Electroncially Stored Information With a Litigation Hold What is it All About?

G. Spence Fricke

24 Data Backup Stephen Stine

28 Elhanan John Searle Judge Jim Spears Contents Continued on Page 2

The Arkansas

Lawyer Vol. 43, No. 2

in this issue CLE Calendar

25

2007-08 Arkansas Bar Association Sustaining Members

26

Lawyer Community Legacy Awards

29

Judicial Advisory Opinions

30

Lawyer Disciplinary Actions

31

In Memoriam

46

Arkansas Bar Foundation Memorials and Honoraria

47

Classified Advertising

48

columns President’s Report

Young Lawyers Section Report Amy Freedman

Arkansas Bar Association

2224 Cottondale Lane Little Rock, Arkansas 72202

HOUSE OF DELEGATES Delegate District 1-SE: Robert F. Thompson, III Delegate District 2-SE: Jerrie Grady Delegate District 3-SE: Barbara A. Halsey, Mark A. Mayfield, Brant Perkins Delegate District 4-SE: Kathie A. Kimbrell Delegate District 5-SE: A. Jan Thomas Delegate District 6-SE: Marshall Wright Delegate District 7-SE: Buck C. Gibson Delegate District 8-SE: Tim A. Blair Delegate District 9-SE: Brian S. Miller Delegate District 10-SE: Anthony A. Hilliard, Brandon C. Robinson Delegate District 11-SE: Phillip C. Green Delegate District 12-SE: Timothy R. Leonard Delegate District 13-SE: Matthew Shepherd, James E. McMenis Delegate District 14-SE: Matthew Wade Kimmel, Amy Freedman Delegate District 15-SE: Bryan T. McKinney, F. Thomas Curry Delegate District 16-SE: Jonathan D. Jones, Jacob M. Hargraves Delegate District 17-SE: Sam E. Gibson Delegate District 1-NW: Lisa L. Kelley, Jason B. Kelley, Stephen A. Geigle, Vicki S. Vasser Delegate District 2-NW: Brock Showalter, Earl Buddy Chadick, David J. Whitaker, Charles L. Harwell, Tim Tarvin, Jason B. Duffy, Debby Thetford Nye, Paul D. Reynolds, W. Marshall Prettyman, Jr., Robert R. Estes, Jr. Delegate District 3-NW: Stephen C. Smith, James O. Cox, Amy Click-Horoda, Kimberly J. Frazier, Rita Howard, Farrah L. Fielder Delegate District 4-NW: Patrick C. McDaniel Delegate District 5-NW: Steven B. Davis Delegate District 6-NW: Roy Beth Kelley, John C. Riedel Delegate District 7-NW: Stephan M. Hawks, Charles E. Clawson, III Delegate District 8-NW: Jerry D. Patterson Delegate District 1-C: Valerie L. Kelly, Gregory L. Crow, Gwendolyn L. Rucker, Randall S. Bueter, Mitchell L. Berry, M. Stephen Bingham, Lacy J. Kennedy, IV, C. Tad Bohannon, Jerry Larkowski, Brian A. Vandiver, Mark T. McCarty, Jay T. Taylor, Judge Beth M. Deere, J. Leon Johnson, Rebecca J. Denison, Michelle H. Cauley, David P. Glover, Jay L. Shue, Jr., Elizabeth Thomas Smith, Brad L. Hendricks, Joel M. DiPippa, Khayyam Eddings, Christian Harris, Ka Tina R. Hodge, Jeffrey Dale Wood, Gill A. Rogers, Mark W. Hodge, Brett D. Watson, Patrick L. Spivey, Danyelle J. Walker Law Student Representatives: Lacey Larue, University of Arkansas School of Law; Allison Rantisi, UALR William H. Bowen School of Law

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Richard L. Ramsay

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President’s Report

by Richard L. Ramsay

The Takeout In this series of articles I have used the metaphor of a river trip as I have written about the activities and projects of our organization during the last 12 months.

The “takeout” on a river trip, the conclusion of the voyage, is a time of mixed emotions. First, you realize that a wonderful experience is about to end. Second, and more importantly, you tend to reflect on the exciting events that you have experienced during the trip. As we reach the end of the 2007-2008 bar year, memories flood my mind.

The first thing that comes to mind is how fortunate I have been to take this trip with great people. The staff at the Arkansas Bar Association, with whom I work on an almost daily basis, serves our members well. Second, the lawyers of the state who volunteer their time for our association never cease to amaze me. Their dedication to making our profession better is without equal. I will forever be indebted to all of you who have made this year a successful one.

This year we have encountered several challenging rapids and run them all successfully. Please allow me to list the major accomplishments.

In addition to serving as the president of the Arkansas Bar Association, I had the pleasure to serve as president of the Southern Conference of Bar Presidents.

In October, the Arkansas Bar Association hosted 250 former, current and upcoming bar presidents from 19 associations across 17 Southern states, from Maryland to Texas.

I could not be more proud of our people.

Steve Zack, former Florida Bar President and current leader in the American Bar Association, at the ABA Mid-Year Meeting in Los Angeles, said, “I have been going to Southern Conference meetings for over 20 years and the event in Little Rock was, by

far, the best ever.” A special thanks goes out to Carolyn Witherspoon and her planning committee; Judith Gray, who came out of retirement to spearhead our event; and my wife, Clair, who took on this project with a passion only exceeded by the outstanding result.

We have placed an emphasis on lawrelated education. Chair Mark Hodge has gotten us off to a great start with a product that will benefit our state’s young people for years to come. Arkansas lawyers will go into local schools to teach our young people about the foundations of their freedoms.

This undoubtedly will serve them well.

By now, everyone knows that I love the Young Lawyers Section. They have, once again, risen to every challenge we have put before them. The highlight of their efforts this year culminated in a Rule of Law Conference held in Little Rock in April. People from all different disciplines, Law, Medicine, Engineering, Architecture, Government, Religion and Business, discussed the importance of the Rule of Law in not only our country, but the entire international community. A live satellite feed with our counterparts in the emerging democracy of the Ukraine highlighted the conference.

We aided the administration of justice in our state. Successful petitions were filed in support of the protection of the attorneyclient privilege and the work product doctrine. The Supreme Court also approved our petition redrafting the Arkansas Judicial Discipline and Disability Commission Rules. We will shortly be submitting petitions to revise the Arkansas Judicial Code and to establish rules on electronic discovery. On behalf of the Association, I extend my thanks to the members of the various task forces and their chairs.

In order to ensure the continued success

of our Association, the Board of Governors has authorized the creation of a Long Range Planning Committee. This group of volunteers, headed by Jim Julian, will apply their collective talents to look forward at the practice of law. They will anticipate changes, enabling us to meet upcoming challenges and better serve our membership.

The main weapon in their arsenal will be the results of a survey prepared and circulated by Chair John Vines and the Member Benefits Committee this spring. I personally feel that this is one of the most important steps we have taken to better prepare for the demands of tomorrow.

I would like to conclude this, my last article, on a personal note. When I delivered my remarks after being sworn in as the 110th President of the Arkansas Bar Association at the annual meeting last June, I quoted part of my father’s remarks when he was installed as President in 1963. He said, “I consider the administrations of various presidents as links in a strong chain that binds and holds together the rule of law and the administration of justice by the Bench and Bar of Arkansas. I hope and pray that this year the link will be strong enough to withstand all future stress and strain, and that if ever tested it will hold in place with the others, strong and fast.”

The challenge of serving as your president this year pales when compared to the honor of having the opportunity to serve. It is and forever will be the pinnacle of my tenure as an Arkansas lawyer.

Like my father, I hope and pray that my service as President has added another link in the strong and fast chain of which he spoke 44 years ago. ■

Vol. 43 No. 2/Spring 2008 The Arkansas Lawyer

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Young Lawyers Section Report

by Amy Freedman

Arkansas YLS—Spring Into Action

The flowers are blooming, birds are chirping and the Arkansas Young Lawyers Section is buzzing with activity and excitement. After completing several ambitious projects this past fall and winter, including hosting the Southern Conference of Bar Presidents and sponsoring the Bridging the Gap CLE ,the Arkansas YLS has a busy spring schedule ahead that will lead us right to the Annual Meeting in June.

In February, the Arkansas YLS sent a delegation to the national ABA YLD meeting in Los Angeles, California. Gwen Rucker, Brendan Monaghan and I represented Arkansas and participated in the excellent programming. The conference included a national young lawyers’ forum, which addressed issues such as young lawyer career management, work-life balance, law school debt and preparation for the legal profession/mentorship.

In April, the Arkansas YLS co-sponsored with the Arkansas Bar Association and the American Bar Association an International Rule of Law Conference in Little Rock to address issues of global and domestic legal concern. The World Justice Project (WJP) is a multinational, multidisciplinary initiative to strengthen the rule of law worldwide.

The goal is to advance the rule of law as a foundation for thriving communities under four universal principles: insuring that governments are held accountable under the law; insuring that laws are clear, publicized, stable and fair; insuring that the process by which laws are enacted, administered and enforced is accessible, fair and efficient; and finally insuring that the law is upheld, and access to justice is provided, by competent, independent, and ethical law enforcement officials, attorneys or representatives, and judges who are of sufficient number, have adequate resources, and reflect the

makeup of the communities they serve. The Arkansas YLS is especially proud to play a part in sponsoring this important legal forum, which included an international conference via satellite with leaders from the Ukraine and a keynote address by our Governor Mike Beebe.

Gwen Rucker deserves special praise for organizing this important event as do her outstanding committee consisting of Courtney Crouch, Cliff McKinney, Emily Cox, David Curran, Grant Cox, Joel DiPippa and Dean Aaron Taylor of the William H. Bowen School of Law faculty.

Professor Don Judges of the University of Arkansas School of Law has also been instrumental in coordinating the conference with the Ukrainian leadership.

The month of April is an especially busy month for the YLS. Thanks to the hard work of Executive Council member Vicky Vasser, we will have our very first regional meeting in Fayetteville, Arkansas, at the University of Arkansas School of Law, which will include a reception for third year law students and area young lawyers. We are working hard to branch out to the four corners of the state of Arkansas.

The YLS looks forward to a fantastic annual meeting in June. Cordell Parvin, the nationally renowned speaker from Dallas, Texas, will give a presentation entitled “Securing, Retaining and Expanding Relationships with Your Clients.” This outstanding CLE is designed to show how clients select lawyers, what they want out of representation and how to prepare a business plan with goals. The YLS is extremely excited to offer this programming at the annual meeting. The YLS will also have its annual business meeting to elect officers. If you are interested in leadership opportunities with the YLS, please make every effort

to attend this meeting.

The YLS Executive Council has exceeded its goal of taking the YLS to the “next level” of excellence this bar year. I would like to highlight our greatest achievements for you.

Because of Tasha Taylor’s hard work, our newsletter is now online and interactive, which has not only increased our visibility to our members and the public, but has saved us a significant amount of money.

Brendan Monaghan is deserving of the title “rookie of the year” for the YLS due to his hard work to organize YLS members to assist in hosting the Southern Conference of Bar Presidents. Additionally, Brendan has worked diligently to lay the groundwork for an upcoming project, “Wills for Heroes.” Paul Bennett has worked tirelessly on Lawyers for Literacy project ideas and has been a great asset to the team. Finally, Vicki Vasser has worked overtime to successfully coordinate our regional meeting with U of A. As this Bar year winds to a close, I want to thank my Executive Council, including: Gwen Rucker, Courtney Crouch, Will T. Crowder, Tasha Taylor, H. Wayne Young, Paul Bennett, Eddy Doman, John Houseal, Farrah Fielder, Vicky Vasser, Bill Horton, Tony Juneau, Aaron Taylor and Brendan Monaghan. They are a fantastic group of young lawyers. We have bonded this year as a team and have worked under tight deadlines on multiple projects. I want to say a special thank you to Gwen Rucker, our President Elect. Gwen and I have become very close this year, and I leave the YLS in excellent hands for the next bar year.

My good fortune was to get to know these outstanding young lawyers on the Executive Council. They take great pride in their work and represent our state with excellence.

They are truly “Arkansas all stars.” ■

Vol. 43 No. 2/Spring 2008 The Arkansas Lawyer

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Beyond Trade Secrets: Protecting Business Information in Arkansas

by Kevin M. Lemley

Information is often a firm’s most valuable asset. Arkansas trade secret law has lost much of its strength to effectively protect this valuable information. Recent federal and state laws provide new methods for protecting information stored on computers. These new laws should cause a new dimension of thinking in how to protect business information. This article will focus on two of the most important new laws: (1) the Computer Fraud and Abuse Act (“CFAA”); and (2) Arkansas computer statutes.

I. Development of Arkansas Trade Law The Arkansas Trade Secret Act (“ATSA”) was enacted in response to developments in federal trade secret law. No federal statute exists for trade secrets, and states developed trade secrets through the common law.1 The Restatement of Torts tailored its approach to the actions of the plaintiff, adopting six factors to determine if information was a trade secret.2 Applying these factors led to inconsistent results among jurisdictions.3 The Uniform Trade Secret Act (“UTSA”) was drafted in 1979 to unify trade secret law.4 The UTSA focuses on the acts of the defendant in misappropriating information, supplanting the Restatement approach of focusing on the plaintiff’s acts. After the American Bar Association approved the UTSA, nearly every state adopted all or part of the UTSA in their state law.5 The ATSA, adopted in 1981, largely mirrors the UTSA6 and began life as a powerful tool for protecting business information. Information must be secret to qualify, but the ATSA definition of secrecy is not rigorous.7 It protects against misappropriation from the party who wrongfully discloses the trade secret as well as the party who wrongfully acquires the trade secret.8 The successful plaintiff can get attorney’s fees and injunctive relief.9 Trial courts are also required to enter protective orders to protect the information during the litigation.10 The Arkansas Supreme Court significantly altered trade secret law in Saforo & Associates, Inc. v. Porocel.11 There the court turned solely to the Restatement factors to determine if a trade secret existed. By doing so, the court defeated the entire purpose of the UTSA, which Arkansas adopted through the ATSA.12 The court later stated that each factor must be met for the information to qualify as a trade secret.13 While other authors have scrutinized the court’s approach,14 the court has ignored these criticisms.

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Now trade secrets are much harder to protect in Arkansas. Tyson15 and Wal-Mart16 both recently lost cases because the court held their business information did not meet the heightened standard to create a trade secret imposed in Arkansas. Smaller companies have incurred the same fate.17 This information could have received protection under other federal and state laws.

II. The Computer and Fraud Abuse Act The CFAA is a powerful tool to protect business information in two significant respects. First, the CFAA applies with equal force to any information stored on a computer, whether or not the information is confidential.18 Second, the CFAA does not require that the defendant use or misappropriate the information; the access of the information creates the cause of action.19 Firms have failed to maximize protection available under the CFAA, largely in part because it is a complex law that developed for over a decade as an exclusively criminal statute. For much of its history, the CFAA only applied to government computers and financial institutions.

The CFAA in its present form currently provides protection for any “protected computer,�20 which includes any computer used in interstate commerce. 21 Any computer connected to the internet would qualify as a protected computer.22

Kevin M. Lemley is an associate with the Allen Law Firm in Little Rock and an adjunct professor at the University of Arkansas at Little Rock School of Law.

Vol. 43 No. 2/Spring 2008 The Arkansas Lawyer

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A. Available Causes of Action Under the CFAA The CFAA states, “Any person who suffers damage or loss by reason of a violation of this section may maintain against the violator.”23 While this civil remedy provision applies to the entire CFAA, certain subsections must be involved for the private right to accrue.24 The conduct must involve one of the factors set forth in subsection (a)(5)(B).25 The basic requirements under this subsection are (1) intentional access to a protected computer without authorization that (2) causes damages of at least $5,000.26 For clarification, I will refer to this as the Basic Claim.

Plaintiffs are not limited to the Basic Claim, but a violation of any other subsection must also include one of the factors in the Basic Claim.27 Damages for the Basic Claim are limited to only economic damages.28 However, the plaintiff could still get injunctive relief for a claim based solely on this conduct.29 To achieve the full array of potential damages, the commercial plaintiff must establish one of the other enumerated causes of action provided in the CFAA: (1) Unauthorized Access with Intent to Defraud. This claim is the most applicable to firms seeking to protect business information.30 This subsection applies to one who: knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value, unless the object of the fraud and the thing obtained consists only of the use of the computer and the value of such use is not more than $5,000 in any 1-year period.31 In this section, “defraud” means wrongdoing; the plaintiff does not have to prove the elements of common law fraud.32 (2) Unauthorized Taking of Data: accessing a computer without authorization and obtaining information from the protected computer if the conduct involved an interstate communication.33 The access is improper if the defendant exceeded any authorized access in taking the information.34 (3) Trafficking in Computer Passwords: knowingly and with intent to defraud trafficking in any password or similar information through which a computer may be accessed without authorization if the trafficking affects interstate commerce.35 (4) Extortion: This subsection provides a cause of action when the defendant, with intent to extort any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to cause damage to a protected computer.36 B. Application to Former Employees and Competitors The CFAA is particularly powerful when a former employee takes information to a competitor because there is no secrecy requirement like the ATSA. The first reported case to make use of the CFAA in this context was Shurgard Storage Centers, Inc. v.

Safeguard Self Storage, Inc.37 Shurgard operated self-service storage facilities and maintained confidential marketing plans to identify and evaluate possible new locations.38 Safeguard, a direct competi12

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tor, offered employment to a high level manager of Shurgard who had access to the confidential marketing plans.39 The manager copied this information and sent it to Safeguard while he was still employed at Shurgard.40 The manager then quit Shurgard and joined Safeguard.41 Shurgard brought suit against Safeguard alleging trade secret misappropriation but also asserted claims for violation of the CFAA.42 Safeguard moved to dismiss the CFAA claim.43 The main issue before the court was whether the manager obtained the information through unauthorized access.44 This was tricky because the manager did have authorization to access the information.45 The court turned to the Restatement (Second) of Agency and found that, when the manager accessed the information to provide it to Safeguard, he ceased to be an agent of Shurgard and instead became an agent of Safeguard.46 Other courts have adopted this approach.47 It is now well established that the CFAA applies to an employee taking information to a competitor, even if that employee was granted access to the information.

C. Damages Under the CFAA Meeting the $5,000 damages requirement to bring a CFAA claim is not difficult. The loss may be aggregated over the course of the year; it does not have to occur at the instant of the violation.48 Costs involved in investigating a possible CFAA violation also count toward this jurisdictional minimum, such as expert consultant fees to determine if a computer was inappropriately accessed.49 Once the minimal damages are established, the CFAA offers a variety of remedies. The costs of identifying a CFAA violation, including expert fees, can be recovered.50 Plaintiffs can recover loss of business goodwill akin to trademark infringement or to upgrade the computer system.51 Another key award is the value of the use of the information.52 This is best illustrated by the concept of “restoring the data . . . to its condition prior to the offense.”53 The most applicable damage model should be trade secret misappropriation under the ATSA, which provides compensation for the actual loss caused by the misappropriation and the unjust enrichment enjoyed by the defendant.54 CFAA claims involve the same misappropriation as an ATSA claim; the CFAA just protects a broader range of information. Moreover, the purpose of the CFAA is to deter unauthorized access. It makes no sense to permit the defendant to make the unauthorized access and then not provide adequate compensation. The only way to uphold the purpose is to fully compensate the plaintiff for any loss incurred and for any unjust enrichment conferred to the defendant.

The most significant drawback of the CFAA as compared to the ATSA is that the CFAA does not provide for an award of attorney’s fees.55 The CFAA also has no provision for statutory or exemplary damages.

D. Injunctive Relief Under the CFAA The CFAA states that it allows for any injunctive relief or other equitable relief.56 The question is whether the CFAA allows for an

injunction on use of information obtained through past violations of the CFAA. The Fifth Circuit was faced squarely with this issue but did not make a decision.57 The CFAA should provide the same preliminary and permanent injunctive relief as the ATSA for the same reasons that the trade secret misappropriation damage model should apply to CFAA claims. It would defeat the purpose of the CFAA if the plaintiff could not prevent the defendant from using the information which was wrongfully obtained.

E. Benefits of the CFAA Over the ATSA The CFAA offers numerous benefits over the ATSA. First, and most significantly, the CFAA avoids the rigorous definition of “trade secret” adopted by Arkansas courts. There is no need to meet the heightened standard of secrecy to protect business information. Second, there is no requirement to show that the information was actually used or misappropriated. The cause of action accrues when the information is improperly accessed.

Third, the CFAA provides federal jurisdiction for a dispute over the compromise of business information without meeting the requirements of diversity of citizenship jurisdiction. Any number of circumstances can make the state court forum unfavorable.

However, at least one court has opined that a CFAA claim could be brought in state court as well.58 Fourth, aside from attorney’s fees, the CFAA should provide the same monetary and injunctive relief as a successful ATSA claim.

Most importantly, the CFAA can provide a successful cause of action where a claim under the ATSA would fail. The firm can receive compensation for the compromise of its business information where once there was no remedy.

Endnotes: 1. Roger M. Milgrim, Milgrim on Trade Secrets § 1.01 (2007).

2. Restatement of Torts § 757, cmt b.

3. Note, Gina White, Is the Arkansas Supreme Court Following Other Jurisdictions Down the Wrong Road in Analyzing Combination Trade Secrets?, 25 U. Ark. Little Rock L. Rev. 407, 419 (2003).

4. Unif. Trade Secrets Act §§ 1 – 12, 14 U.L.A. 433-67.

5. White, supra note 3, at 421.

6. Id. at 426.

7. Ark. Code Ann. § 4-75-601(4).

8. Ark. Code Ann. § 4-75-601(2).

9. Ark. Code Ann. § 4-75-605.

10. Ark. Code Ann. §§ 4-75-606—4-75-607.

11. Saforo & Associates, Inc. v. Porocel, 337 Ark. 553, 991 S.W.2d 117 (1999).

12. Note, Brandon B. Cate, The Failure of the Uniform Trade Secrets Act to Clarify the Doubtful and Confused Status of Common Law Trade Secret Principles, 53 Ark. L. Rev. 687, 701-02 (2000).

13. Wal-Mart Stores, Inc. v. P.O. Market, Inc., 347 Ark. 651, 667, 66 S.W.3d 620, 630 (2002).

14. See generally White, supra note 3 and Cate, supra note 12.

15. Tyson Foods, Inc. v. ConAgra, Inc., 349 Ark. 469, 79 S.W.3d 326 (2002).

16. Wal-Mart Stores, Inc. v. P.O. Market, Inc., 347 Ark. 651, 66 S.W.3d 620 (2002).

17. Weigh Sys. South, Inc. v. Mark’s Scales & Equip., Inc., 347 Ark. 868, 68 S.W.3d 299 (2002).

18. 18 U.S.C. § 1030(a).

III. Arkansas Computer Crime Statutes Arkansas recently enacted a broad range of computer crime statutes.59 Plaintiffs can bring a civil action for some of these computer crimes.60 The two statutes most applicable to businesses are computer trespass and computer fraud. Computer trespass occurs when the defendant alters or damages any computer, computer system, network, program or data.61 Computer fraud occurs when the defendant accesses a computer, computer system, or computer network to defraud, extort or fraudulently obtain property.62 For both computer trespass and computer fraud, the successful plaintiff can recover any damages sustained and the costs of suit.63 “Damages” is defined broadly; “[w]ithout limiting the generality of the term, ‘damages’ shall include loss of profits.”64 These statutes should not be preempted by the ATSA because they are not based on misappropriation of a trade secret.65 Conclusion At the time of this writing, the only Arkansas case involving the CFAA is an unreported opinion denying a motion to dismiss. No reported decisions exist discussing the Arkansas computer crime statutes. These laws will prove quite valuable to firms in the future against departing employees, competitors and third parties. Firms can protect their valuable business information beyond the limits imposed under Arkansas trade secret law.

Endnotes continued on page 41

Vol. 43 No. 2/Spring 2008 The Arkansas Lawyer

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The Importance of E-Discovery

By Scott Dodson

It was bound to happen sooner or later. A New York law firm, Sullivan & Cromwell LLP, recently sued its electronic discovery vendor for missing deadlines and preparing the wrong documents for production, for which the law firm seeks to avoid $710,000 in outstanding bills from the vendor. Suits like this one, which are certain to become more and more common as litigation becomes more and more electronic (and as e-discovery becomes more and more complicated and expensive), underscore the importance of civil rules of procedure that take into consideration the realities of e-discovery.

E-discovery has brought about a new jargon: search terms, .tif format, metadata, file conversion, backup tapes, redlined versions, servers, intranets, cookies, cache files, deleted fragments. These terms were practically unheard of a decade ago. Now they are part of an indispensable discovery lingo.

E-discovery is, in many ways, completely different than paper discovery. Electronic data are both easier and harder to destroy than paper documents. It is easier because resaving a working draft can destroy previous iterations. It is harder because data can remain in computer memory even after a file is deleted. Electronic data are easier to modify, even unintentionally (even accessing a document 14 The Arkansas Lawyer www.arkbar.com

may change its modification date). Files can be converted from a native format to a more or less user-friendly (usually, searchable) format. Some files may need the accompaniment of special software or programs to be understandable. Electronic data may reside in multiple locations and in many copies, so the sheer volume of electronic data presents its own burdens and costs of retrieval and review.

The Federal Rules of Civil Procedure were amended in December 2006 to take into account many of these e-discovery issues. The amendments made five categories of changes. First, Rules 16, 26(f), and 35 put a premium on party discussions about e-discovery issues.

The rules now require the parties to meet and confer about e-discovery issues (in particular, form of production, data preservation, and privilege waiver) early in the discovery process. The rules also require disclosure of certain electronic data in parties’ initial disclosures.

Second, Rule 26(b)(2) attempts to strike a balance between one party’s burden in retrieving inaccessible electronic data and another party’s good cause for obtaining the information.Reasonably accessible electronic data is included in discovery requests generally. Inaccessible data, on the other hand, need not be searched or produced as a routine part of responding to discovery without a

court order, which may be granted if the opposing party shows good cause for the information.

Third, Rule 26(b)(5) addresses the fallibility of attorneys’ privilege reviews in the context of e-discovery. Specifically, the new rule creates a presumption against waiver if a party discloses or produces privileged material inadvertently and notifies the recipient of the error in a timely fashion. If the party meets the requirements, the recipient must return, sequester, or destroy the specified materials and all copies and is prohibited from using the materials in any way. The rule allows the recipient to challenge the claim of privilege or protection, notwithstanding the recipient’s obligation to sequester, return, or destroy.

Fourth, Rules 33 and 34 address the form of production. Rule 34(b) in particular allows parties to request production of specific forms of electronic data.

If a requesting parties does not request a specific form, a producing party may produce the data either as “ordinarily maintained” or in a form that is “reasonably usable.” A responding party may object to the form specified by the requesting party on normal grounds, such as undue burden.

Fifth, Rule 37(f) addresses sanctions for spoliation of electronic data. Because of the high spoliation rate and the burdens of preservation, Rule 37 limits a court’s ability, absent exceptional circumstances, to impose sanctions for the good faith deletion of data if the deletion was the result of a routine operation of an electronic information system.

Many states, including Idaho, New Jersey, Indiana, Minnesota, Montana, and New Hampshire, have begun to adopt their own e-discovery rules for state court practice. Arkansas has been slower to address e-discovery issues through the rulemaking process, but the Arkansas Supreme Court appears to be aware of the problem. On January 10, 2008, the Court approved amendments to Rule 26(b) of the Arkansas Rules of Civil Procedure. Those amendments, which take effect immediately, amend Rule 26(b)(5) to track the new federal standards for the inadvertent disclosure of privileged or protected material.

The 2007 Reporter’s Notes specifically

link these amendments to the rules of privilege waiver to the difficulties and risks of e-discovery: Lawyers do their best to avoid mistakes, but they sometimes happen. Discovery has always posed the risk of the inadvertent production of privileged or protected material. The advent of electronic discovery has only increased the risk of inadvertent disclosures. This amendment addresses this risk by creating a procedure to evaluate and address inadvertent disclosures, including disputed ones.

Instant, worldwide exposure

The Arkansas rule amendments are only a small step towards addressing all of the issues that e-discovery raises, but they evince an acknowledgment by the Arkansas Supreme Court and the Arkansas Supreme Court Committee on Civil Practice that the rules must adapt to address the new challenges e-discovery presents.

The amendments to the rules tell only half the story; the other half is how practitioners are actually using and interpreting them. That half of the story will be told, at least in part, by two other articles included in this issue. Todd Newton will discuss how to advise clients on policies and procedures regarding what they need to do to protect, preserve, and manage electronic information before litigation.

Spence Fricke will discuss the importance of litigation hold notices to clients. ■

It’s easy for potential clients to find you ■ Register to get your name publicized on the Internet ■ Only $75 per year ■ Searchable by practice area and location ■ The Association maintains your online listing

www.arkansasfindalawyer.com

Scott Dodson is an assistant professor of law at the University of Arkansas in Fayetteville.

He teaches and writes primarily on issues of civil procedure and federal jurisdiction.

Call 501.375.4606 or 800.609.5668 Or go to www.arkbar.com

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E-Discovery and Record Retention: When Two Worlds Collide

By Todd L. Newton

It’s been over a year since the amendments to the Federal Rules of Civil Procedure governing electronic discovery went into effect. By now, we’re all somewhat familiar (or at least should be) with the amendments and one key fact: the confirmation that electronic evidence is subject to the rules of discovery just like any other type of evidence. Thus, it must be preserved and produced in a timely fashion upon request. That sounds simple enough, right? Perhaps not, given the fact that electronic records can be (and usually are) far more voluminous than traditional paper records, thus complicating the task of searching for and producing them in the heat of a discovery battle. Scott Dodson’s article in this issue provides an excellent summary of some of the complexities that electronic evidence adds to the mix. The goal of this article is to demonstrate how the e-discovery amendments require more planning in advance, beginning with the record retention policies of the client, in order to avoid the risk of spoliation and all of the potential consequences that follow. Indeed, the amendments themselves provide some good clues about what clients need to consider regarding their own record retention policies, including what they keep, where they keep it, and how they can produce it.

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“From these rules, it is clear that the path to being prepared for ‘E-Day’ consists of three things: knowing what your clients have; knowing where they have it (and whether it’s ‘reasonably accessible’); and knowing how to preserve and produce it when required to do so.”

The Amendments: The Starting Point for Effective Record Retention By reviewing some of the amendments, we can begin to see the types of things that clients will need to consider (and their attorneys will need to understand) about what records they keep, where they keep them, and how they can produce them. Rule 16(b)(5) and (6) requires the court’s scheduling order to include provisions regarding the disclosure of electronically stored information (ESI). That sets the stage for the first consideration: what information does the client keep in electronic format? When most people think about electronic discovery, one word comes to mind: email.

Todd Newton is counsel for Mitchell Williams in Little Rock. He serves as team leader of the firm’s Information Management and Security practice.

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There’s good reason for that given the fact that most people in the business world, including our own, use email on a daily basis to conduct at least some portion of their business, potentially giving rise to the “smoking gun” pertaining to a potential future lawsuit.

However, electronic discovery covers more than just email because there is a wide variety of information that is stored electronically: instant messages, text messages, faxes, spreadsheets, letters, drafts, memos, voicemail, and the list goes on and on. So, from the outset, clients must know the various types of electronically stored information they keep – which will simplify the attorney’s responsibilities under the next rule.

Rule 26(a)(1)(B) requires the parties to provide other parties with a copy “or a description by category and location” of ESI without waiting for the other parties to request it. Similarly, Rule 26(b)(2) (B) provides that only ESI that is “reasonably accessible” must be initially produced, while providing the means for the requesting party to establish good cause why ESI that is not reasonably accessible should still be produced. These amendments demonstrate yet another factor that attorneys and clients alike must consider. Besides knowing what ESI exists, the client must know and the attorney must disclose where such information exists. If ESI is reasonably accessible, it must be disclosed. If, however, ESI is retained only on backup tapes that are kept for business continuity purposes, then there may be an argument that such information is not reasonably accessible and does not have to be initially produced. Given the speed with which discovery commences, the answers to these questions must be known sooner rather than later, and waiting until the lawsuit is filed is simply too late.

Rule 26(f )(3) and (4) requires the parties to discuss ESI during their initial conference. Specifically, the rule requires the parties to discuss the form of production, preservation obligations, and the procedures for dealing with inadvertent disclosures of potentially privileged information. Local Rule 26.1(4) of the United States District Court, Eastern District of Arkansas, expands on these provisions by requiring the parties to include in their Rule 26(f ) report the following: whether disclosure of ESI will be limited to that which is “reasonably available” in the ordinary course of business; the anticipated scope, cost, and time required for the disclosure or production of data that is not reasonably available; the format of production and the procedures for production; whether reasonable steps have been taken to preserve potentially discoverable data from alteration or destruction; and other problems that the parties anticipate may arise in connection with the discovery of ESI. These rules further demonstrate that clients need to know what they have, where they have it, and what form it’s in before the discovery process even begins.

From these rules, it is clear that the path to being prepared for “E-Day” consists of three things: knowing what your clients have; knowing where they have it (and whether it’s “reasonably accessible”); and knowing how to preserve and produce it when required to do so. The remainder of this article will focus on knowing what your clients have or, more importantly, making sure your clients know what they have. By knowing what is being retained, clients are in a much better position to respond to a request for electronic evidence and to halt the destruction of electronic evidence that might otherwise be destroyed. This is where an effective record retention plan can save the day.

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Even before the e-discovery amendments took effect, it was clear that courts took a dim view of companies that failed to preserve evidence and even those that could not locate pertinent evidence because of the manner in which it was stored. In response to one company’s argument that responding to a discovery request would impose an undue burden because its records were not retained in such a fashion to facilitate recovery, one court was critical of the company’s “opaque data storage system,” particularly when the company could expect frequent litigation due to the nature of its business. Zurich American Insurance Co. v. Ace American Reinsurance Co., No. 05 Civ. 1970 (RMB) (JCF), 2006 U.S. Dist. LEXIS 92958, at * 5 (S.D.N.Y. Dec. 22, 2006). Moreover, with the safe harbor provision in Fed. R. Civ. P. 37(f ), clients will clearly benefit from having (and enforcing) a record retention plan because it can limit their exposure to potential sanctions in the event that ESI is “lost as a result of the routine, good-faith operation of an electronic information system.” By having a record retention plan in place, the client will be in a position to operate more efficiently by knowing what records it keeps and where those records are located, and it will be able to produce those records much more quickly when litigation commences or the threat of litigation arises.

So what records must the client keep and how long should it keep them? The answer to both questions is the same and is the one that most, if not all, clients hate to hear: it depends. Specifically, it depends on the nature of the client’s business and the laws and regulations that govern that type of business. In other words, there is no such thing as a “one-size-fits-all” record retention policy because every business is different. The health care provider maintains different types of records than the financial institution. While there are certain types of records that all businesses maintain (personnel files, bank statements, etc.), each business is different. Some businesses may keep different records than other businesses in the same industry, depending on the needs of the individual business. The result, then, is that attorneys must ensure that their clients have effective record retention policies in place that are tailored to their clients’ businesses and that those policies are enforced.

Steps to Developing An Effective Record Retention Policy While the following steps do not comprise all of the factors that should be considered when formulating a record retention policy, they will hopefully provide a good starting point. First, the client should establish goals for the record retention policy. For any business, this simply means that the policy will strive to establish that its records will be kept in such a way that they can be retrieved when needed (whether for business purposes or in response to litigation or investigation) and destroyed when no longer needed. Unfortunately, most companies find it much easier to keep electronic information much longer than necessary than destroy it when they no longer need it because the storage capacity of today’s computer systems and storage devices is monstrous. Even the little flash drives that fit on a key ring can hold several gigabytes of data. While that capability is extremely useful, it also creates the equivalent of a digital junk drawer: we save electronic information with the notion that one day we’ll get rid of it. The reality, however, is that too much information is being saved on networks, hard drives, and other storage media all E-discovery continued on page 40

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Preserving Electronically Stored Information With a Litigation Hold — What Is It All About?

By G. Spence Fricke A new challenge has recently arisen for lawyers with a litigation practice, in Arkansas and elsewhere: seeing that one’s client timely locates and properly preserves what the newly amended Federal Rules of Civil Procedure call “electronically stored information” (ESI). It arises, not from any Arkansas case authority, but from a series of discovery-focused decisions in Zubulake v. UBS Warburg, Civil Action Number 02-1243,1 and the December 2006 electronic discovery amendments to the Federal Rules of Civil Procedure.2 The purpose of this article is to examine these and other authorities in the context of what is known as a “litigation hold,” particularly as it relates to preservation of ESI. The goal is to provide some amount of education, but mostly an awareness of what will be a completely new experience to many Arkansas attorneys.

What is a litigation hold?

In general, issuing a litigation hold (or a legal hold, as it is sometimes called) is nothing more than directing your client to locate and preserve information that is relevant either to ongoing litigation or to litigation that should reasonably be anticipated. See, e.g., Zubulake v. UBS Warburg, 220 F.R.D. 212, 216 (S.D.N.Y. 2003) (Zubulake IV), and Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 72 (S.D.N.Y. 1991). It is a product of an attorney’s common law duty to preserve evidence and prevent spoliation. See, e.g., Goodyear Tire and Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999).

The general duty to preserve evidence can also be found in the Arkansas Rules of Professional Conduct, Rule 3.4, which states that a lawyer shall not: “(a) unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act.” In fact, the commentary to paragraph (a) notes that it “applies to evidentiary material generally, including computerized information.”

In short, a litigation hold is founded on a longstanding duty, one applicable to both client and attorney: a duty to see that evidence needed for the litigation process is promptly located and preserved.

To better understand the contours and effects of a litigation hold as applied to ESI, it is best that it be examined in two general parts: 20 The Arkansas Lawyer www.arkbar.com

(1) the triggering of the litigation hold, and (2) implementing the litigation hold.

Triggering the litigation hold - When does the duty to preserve relevant information arise?

In the author’s opinion, the two best information sources for litigation holds – at least the two which should be read first – are the series of opinions in Zubulake v. UBS Warburg, particularly Zubulake IV and Zubulake V, and the Sedona Conference Commentary on Legal Holds - The Trigger and the Process (www.thesedonaconference.org) (Sedona Conference). The five separate discovery opinions in Zubulake arose from a battle between the plaintiff and defendant over the production of ESI, particularly backup tapes containing e-mails relating to the plaintiff sent by employees of the defendant.

In describing how counsel for the defendant should have better directed her client in its document preservation efforts, Judge Shira Scheindlin thoroughly examined the process of litigation holds. The Sedona Conference is a series of 11 guidelines specifically relating to legal holds. Each guideline is discussed in detail, including a discussion of some relevant statutory and case authority. A review of these two sources will quickly bring you up to date on the ins and outs of litigation holds.

Judge Scheindlin in Zubulake IV found the duty to preserve relevant evidence arises “[w]hen the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.” 220 F.R.D. at 216 (quoting Fujitsu, Ltd. v. Federal Express Corp., 247 F.3d 423, 436 (2d Cir. 2001)). Likewise, the Sedona Commentary guidelines speak in terms of the duty arising upon “reasonable anticipation of litigation.” Sedona Commentary, Guideline 1. Litigation should be reasonably anticipated, says the guideline, when a party is “on notice of a credible threat it will become involved in litigation or anticipates taking action to initiate litigation.” Sedona Commentary, Guideline 1.

Obviously, then, a litigation hold may well need to be prepared and sent before any litigation is filed. See Zubulake IV, 220 F.R.D. at 216, noting the defendant should have reasonably anticipated

“...much of the litigation hold procedure is designed to protect both counsel and client as each tries his or her best to identify, gather and preserve elusive electronically stored information in the litigation process.”

litigation, and begun the litigation hold process, when the plaintiff filed her EEOC claim, at the latest. See also Concord Boat Corp. v.

Brunswick Corp., 1997 U.S. Dist. LEXIS 24068 (E.D. AR. Aug. 29, 1997), in which Judge Moody cautioned against deleting e-mails simply because a complaint has not been filed, although he declined to give a negative inference jury instruction based on such a deletion under the circumstances.

On the other hand, as noted in the Sedona Conference guidelines, a vague rumor or some undefined threat of litigation is not something which would trigger the duty. The threat must be credible.

Sending the defendant a demand letter, for example, has been held to trigger the duty. See, e.g. Consolidated Aluminum Corp. v. Alcoa, Inc., 206 W.L. 2583308 (M.D. LA. July 19, 2006). Other factors come into play, of course, such as whether there is significant relevant data which has a great chance of being destroyed unless preserved, the identity and personality of the individual making the claim, and whether there is a history of other such claims being made. See, in general, Sedona Conference, Guideline 4. A helpful test here would be whether the attorney or the party has seriously considered taking steps to protect investigative materials under the work product privilege. That, it would seem, would at the same time trigger the litigation hold process.

In short, if a party has notice that information is relevant to litigation or should know that it may be relevant to future litigation, the party has a general duty to preserve the evidence, particularly in the case of ESI. Under such circumstances, a lawyer should advise the client to take immediate steps to preserve that information and, in the process, list those topical areas of relevant and potentially discoverable information to be preserved.

Rule 26 of the recently amended Federal Rules of Civil Procedure provides some guidance at this point. Rule 26(b)(2) (B) provides: “a party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.” It follows that the relevant ESI which should be identified and preserved is that which is “reasonably accessible,” based upon the burden or

costs of retrieving it (depending, of course, upon the circumstances of the case).3 What, then, is the scope of a party’s responsibility to preserve relevant evidence? What is considered “reasonably accessible” ESI? Most corporations have document retention policies which control how long documents are kept. How are such policies affected by the litigation hold process? Zubulake IV addresses these issues: Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a “litigation hold” to ensure the preservation of relevant documents. As a general rule, that litigation hold does not apply to inaccessible backup tapes (e.g., those typically maintained solely for the purpose of disaster recovery), which may continue to be recycled on the schedule set forth in the company’s policy. On the other hand, if backup tapes are accessible (i.e., actively used for information retrieval), then such tapes would likely be subject to the litigation hold.

Zubulake IV, 220 F.R.D. at 218 (emphasis in original).

G. Spence Fricke is an attorney with the Barber Law Firm in Little Rock.

He practices in the areas of personal injury defense litigation and premises liability and professional liabilty defense.

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there are other sources to consider such as e-mails on servers, thumb drives, and PDA’s used by employees. See Sedona Conference, Guideline 6, and Miller and Randal, a Primer on Electronic Discovery for the General Practitioner, The Arkansas Lawyer, Volume 39, 4, Fall 2004 (listing various sources of electronic information).

“Electronically Once the litigation hold has been issued to stored information, the client, the real work begins. In Zubulake V, however, can be Judge Scheindlin noted the discovery obligations of a party actually begin with the litigation hold: deleted, modified, “Once a ‘litigation hold’ is in place, a party and and traced. It thereher counsel must make certain that all sources of potentially relevant information are identified fore presents unique and placed ‘on hold,’ to the extent required in challenges in terms Zubulake IV.” 229 F.R.D. at 432. This, said Judge of its availability.”

Scheindlin, requires that the litigation attorney undergo an education process. He or she must become familiar with the client’s retention policies, which means discussions must be had with the client’s information technology personnel, assuming they exist. Counsel should also contact and communicate with individuals known as “key players” in the litigation, generally considered to be those individuals one would identify as having discoverable information in response to a discovery request. Id. at 432.

A litigation hold, then, is to be issued at the beginning of litigaThe naturally arising question at this point is just how much tion or, depending upon the circumstances, when litigation should face to face contact with the client is required. It would seem be reasonably anticipated. The hold should direct itself to ESI much depends on the type of client involved. There is, after all, relevant to the identified topics involved in the litigation. The infora world of difference between representing a multi-national conmation must be reasonably accessible by the party, and the party’s glomerate in an antitrust action and representing the local mom document retention policy should be suspended, at least as it relates and pop convenience store. Nonetheless, it has been suggested the to the relevant information. This, however, is only half the job. The initial conference with the client over the litigation hold process litigation hold must then be implemented. should be face to face. See, e.g., Stio and Quigley, Getting a Grip on the Litigation Hold, E-discovery, Special Publication of Section of Implementing the litigation hold Litigation, American Bar Association, 2007. The point is, of course, It should be kept in mind that the scope of the ESI a party if the client’s documentation is even close to extensive, the attorney should be concerned about preserving is based upon a reasonablemust promptly become familiar with its document retention poliness standard. In Zubulake IV, Judge Scheindlin noted that, once cies, its “key players,” and its technology personnel, so that the word a corporation is threatened with litigation, it does not have the is spread, both about the litigation, and the relevant documents to unbounded responsibility to, “preserve every shred of paper, every be preserved. e-mail or electronic document, and every backup tape.” A rule like The Sedona Conference guidelines are again informative here. this, said the court, “would cripple large corporations like UBS that Guideline 8 lists the elements of an effective legal hold: are almost always involved in litigation. As a general rule, then, a party need not preserve all backup tapes even when it reasonably A legal hold is most effective when it: anticipates litigation.” Zubulake IV, 220 F.R.D. at 217.

On the other hand, a party must act prudently once it reasonably (a) identifies the persons who are likely to have relevant anticipates a lawsuit. “While a litigant is under no duty to keep or information and communicates a preservation notice to retain every document in its possession . . . it is under a duty to those persons; preserve what it knows, or reasonably should know, is relevant in (b) communicates the preservation notice in a manner the action, is reasonably calculated to lead to the discovery of admisthat ensures the recipients will receive actual, comprehensible evidence, is reasonably likely to be requested during discovery sible and effective notice of the requirement to preserve and/or is the subject of a pending discovery request.” Turner, information; 142 F.R.D. at 72 (quoting William T. Thompson Co. v. General (c) is in written form; Nutrition Corp., 593 F. Supp. 1443, 1445 (C.D. Cal. 1984)). (d) clearly defines what information is to be preserved This, of course, is the general rule most litigation attorneys and how long the preservation is to be undertaken; already follow when deciding what materials need to be produced (e) is periodically reviewed and, when necessary, reisduring litigation. ESI, however, can be deleted, modified, and sued in either its original or an amended form. traced. It therefore presents unique challenges in terms of its availLitigation Hold continued on page 44 ability. Instead of the longstanding file cabinet search, for example, 22

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FYI: Data Backup

By Stephen Stine, Research Specialist, American Bar Association Legal Technology Resource Center FYI: Data Backup, 2008, published by the American Bar Association Legal Technology Resource Center, located at http://www.abanet.org/tech/ ltrc/fyidocs/databackupfyi.html <http://www.abanet.org/tech/ltrc/fyidocs/databackupfyi.html>. Copyright © 2008 by the American Bar Association.

Reprinted with permission.

Introduction Law firms and other businesses increasingly create and store their business documents electronically. Up to 90% of documents created and received by businesses are “born digital,” created digitally on a computer or some other electronic device, as opposed to having been created by analog means (pencil, pen, typewriter, etc).1 Documents that are not born or received digitally are often converted into electronic format through scanning in order to fulfill space saving and document organizing/document management purposes (such as in the creation of “paperless offices”).2 Lawyers and Electronic Data Lawyers increasingly depend upon the integrity of their computer systems and document management systems for access to their vital practice-related information such as correspondence, memos, and financial records.

Data Loss Vital electronic data can be threatened in several ways—computer hard drives can fail, laptops can be lost or stolen, data can be overwritten or erased due to computer or human error or due to malicious attacks. Office equipment may be destroyed by natural disasters such as earthquakes or fire.

To guard against data loss, it is important to set up a data backup system through which your data is periodically copied from your computers and servers to some other storage devices in order to facilitate future access to your data.

Backup Media and Software Your data can be backed up to several different types of media. Backups are often made to an external hard drive or network-attached storage device, to DVDs, CDs, USB/flash drives, tapes, or to remote servers over the internet—people often use a combination of media to store their backups both onsite and offsite (see following section). Several different software packages are available to help with the process of making file backups and disk images, which will be described in the 24

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“Software” section below. RAID systems for hard drives can help preserve your data in the case of a hard disk failure in your computer-RAID systems should be paired with periodic backup systems which include an offsite component.

Regardless of the backup media you use, it is important to occasionally test your backups, including performing test restores, to see if your backups are working correctly. You may be left unable to restore your data if it turns out that your backup media or backup processes weren’t working correctly.

If you use devices like USB/flash drives or other devices for temporary storage, and use laptops for travel, don’t forget to sync these devices or otherwise copy the files to a primary computer that is being backed up.

Backup Location Backups of your data can be kept onsite for easy access, but it is recommended to keep backups of your data offsite as well.

Offsite backup storage is important to protect copies of your data from whatever forces might threaten the data on your primary onsite computer—a natural disaster or burglar may threaten your onsite backups, and storing copies of your data offsite increases the chances that you will be able to restore your data even if your main computer and onsite backups are destroyed or stolen.

Offsite backups can be in the form of CDs, DVDs, USB/flash drives, external hard drives, tapes, or other media which you then store in an offsite location, or in the form of backup data uploaded over the internet and stored on a remote server.

File Backups vs. Disk imaging When you perform a file backup you manually or automatically (using backup software) copy your computer data such as word processing documents, music, photographs, and other computer files to some form of electronic storage. File backups are limited in that they do not result in working copies of your operating system and installed software programs.

With file backups, you can generally per-

form complete file backups, where every file on your computer is copied; incremental backups, where backup software detects and copies only new and modified files over your entire computer or specific folders you specify; and partial backups of specified files, where only certain specified files are copied.

Distinguished from file backups are programs that can create “disk images.” A disk image is a copy not only of your files but also your entire file system, resulting in a copy of your operating system, applications, and drivers as currently set up on your computer—you can use the disk image to recreate your entire computing environment in the future.3 After restoring from a disk image, all of your programs would all work exactly how they worked at the moment your disk image was created, without having to reinstall your operating system, individual applications, and drivers. Instead of having to install all of your programs again one-by-one, which might require inputting countless serial numbers and activation codes, you could use a disk image to restore your entire computing environment automatically.

In general disk images can take more time and more memory to create than file backups, as everything on your computer is copied when creating a disk image, including the file system (exceptions include the program Acronis True Image—once you have made an initial disk image, with True Image you can perform incremental and differential backups to the disk image, in which only new and modified files are added to the disk image.)4 Because of the amount of time and memory generally required to make disk images, and to install a disk image to a computer, disk images may not be suitable for routine backup-some people use a strategy of making disk images periodically, such as once a week, to capture their entire computing environment, and also perform incremental file backups more often, such as daily, to backup their important business files and documents. (Once again, Acronis True Image may be an exception, with its incremental disk imaging and Data Backup continued on page 42

CLE CLE CLE CLE CLE CLE CLE CLE 2008 CLE Calendar

Brochure available on Web only

May Law Day Ethics May 1, 2008 Little Rock 12th Annual Environmental Law Conference May 2-3, 2008 Inn of the Ozarks, Eureka Springs Time Mastery: Over 100 Ways to Maximize Productivity & Satisfaction May 8, 2008 Texarkana, TX May 9, 2008 Little Rock ADR Conference May 9, 2008 Peabody Hotel, Little Rock June Arkansas Bar Association Annual Meeting June 11-14, 2008 Arlington Hotel, Hot Springs

2008

Best of CLE June 19-20, 2008 Fayetteville June 23-27, 2008 Little Rock For more information contact Lynne Brown or Virginia Hardgrave 800-609-5668 or 501-375-3957 lbrown@arkbar.com or vhardgrave@arkbar.com OR check out THE CLE PAGE at www.arkbar.com

The Arkansas Bar Association presents:

Spring Webinar and Teleseminar Series Speakers: Justice Annabelle C. Imber Professor Lynn Foster Tina R. Green Jeffrey W. Hatfield Richard F. Hatfield Stark Ligon J. Cliff McKinney Yan Ross Professor Tim Tarvin

April 30, 2008

Don’t Let Probate Dismiss Your Wrongful Death Action 1.0 CLE Hour

May 21, 2008

Ethical Issues Involving Attorney Fees In Arkansas 1.0 Ethics Hour

June 30, 2008

Technology: Staying Competitive in the Digital Age 1.0 CLE Hour

June 30, 2008

Ethics, The Internet and Client Privacy Are You Protected in a Rapidly Changing Environment?

1.0 Ethics Hour

June 30, 2008

Review of Arkansas’ New Quiet Title Statute 1.0 CLE Hour

Vol. 43 No. 2/Spring 2008 The Arkansas Lawyer

25

A Special Thank You to the William L. (Bill) Adair Gene D. Adams, Jr. H. William Allen Mark H. Allison Overton S. Anderson Philip S. Anderson Elizabeth Andreoli Richard L. Angel R. Keith Arman Ben F. Arnold Jess L. Askew, III Russell C. Atchley Michelle Ator Joyce Bradley Babin Kenneth B. Baim Charles W. Baker Darryl E. Baker Charles A. Banks Barry D. Barber R. Kevin Barham Harry F. Barnes W. Christopher Barrier Anthony W. Bartels Woodson W. Bassett, III David L. Beatty Paul B. Benham,III Stephen Bennett Madeline L. Bennington Joe Benson M. Stephen Bingham Sam N. Bird Donald E. Bishop James B. Blair C. Tad Bohannon Will Bond Barbara P. Bonds David L. Borland Ted Boswell William H. Bowen Ronald L. Boyer Robert B. Branch Debbie D. Branson Ellen B. Brantley Robert R. Briggs Fred E. Briner Bill W. Bristow Thomas E. Brown Mickey Buchanan Randall S. Bueter

John Richard Byrd, Sr. Paul Byrd Robert D. Cabe Andy L. Caldwell John C. Calhoun, Jr. Jerry L. Canfield Thomas M. Carpenter Phillip Carroll Douglas M. Carson Jerry W. Cavaneau Robert M. Cearley, Jr. Earl Buddy Chadick Mark B. Chadick John S. Cherry, Jr. E. B. (Chip) Chiles, IV Larry E. Chisenhall, Jr. William M. Clark, Jr. John Ralph Clayton Ralph M. Cloar, Jr. Roger U. Colbert Nathan Isaac Combs Pat Jackson Compton Barry E. Coplin Kimberly A. Cordas Nate Coulter James O. Cox Doug W. Coy Steve R. Crane Michael A. Crockett James E. Crouch Tim J. Cullen Niki T. Cung F. Thomas Curry James D. Cypert Thomas A. Daily Carol C. Dalby Paul Danielson Boyce R. Davis John A. (Jack) Davis, III Steven B. Davis Robert T. Dawson Barry Deacon J. C. Deacon Beth M. Deere Rebecca J. Denison Jack W. Dickerson Darrell D. Dover Ted N. Drake Charles B. Dyer, Jr.

B. Michael Easley David L. Eddy G. Thomas Eisele Byron M. Eiseman, Jr. Don R. Elliott, Jr. George D. Ellis Stephen Engstrom Alan D. Epley Audrey R. Evans John C. Everett Hugh A. Finkelstein Victor A. Fleming Robert M. Ford Kay West Forrest Lyle D. Foster Timothy Davis Fox Price C. Gardner David Allan Gates Charles Alan Gauldin Buck C. Gibson C. C. Gibson, III Pamela B. Gibson Sam E. Gibson Martin G. Gilbert Melinda R. Gilbert Greg R. Giles Dent Gitchel Roger A. Glasgow Charles W. Goldner, Jr. Don Goodner Ray A. Goodwin Robert J. Govar Albert Graves, Jr. Angela B. Gray Michael R. Greene John C. Gregg Ronald L. Griggs Timothy W. Grooms David F. Guthrie Michael E. Hale Barbara A. Halsey Donis B. Hamilton Herman L. Hamilton, Jr. James A. Hamilton Linda J. Hamilton Frank S. Hamlin Stuart W. Hankins Regina Haralson W. David Hardin

David M. Hargis Melva Harmon David K. Harp R. Victor Harper Eugene S. Harris James E. Harris Charles L. Harwell Richard F. Hatfield William D. Haught L. Kyle Heffley Brad L. Hendricks Rosanna Henry Sam T. Heuer Joe Hickey Tina M. Hodne Denise R. Hoggard Cyril Hollingsworth Don Hollingsworth Robert M. Honea Ron A. Hope Gregory M. Hopkins R. Howard Hopkins Robert E. Hornberger Karen K. Hutchins James W. Hyden Annabelle C. Imber Michael E. Irwin Donald T. Jack, Jr. Randolph C. Jackson Bradley D. Jesson Christopher M. Jester Glenn W. Jones, Jr. Louis B. Jones, Jr. Robert Shepherd Jones Jim L. Julian Philip E. Kaplan Sean T. Keith William H. Kennedy, III Judson C. Kidd Mike Kinard Euel W. Kinsey, Jr. Elaine M. Kneebone Peter G. Kumpe H. Baker Kurrus Stanley R. Langley Sam Laser John T. Lavey Timothy R. Leonard John C. Lessel

2007-08 Sustaining Members Robert O. Levi Alice F. Lightle Stark Ligon Courtney N. Little Chester C. Lowe, Jr. Patty W. Lueken James R. Marschewski D. Price Marshall, Jr. William A. Martin David R. Matthews Gail Matthews Stephen A. Matthews Jo Ann C. Maxey Ronald A. May S. Hubert Mayes, Jr. Hayes C. McClerkin Ed W. McCorkle J. Philip McCorkle Michael S. McCrary Bobby McDaniel Jeffrey E. McKinley Steven McKinney James A. McLarty, III James Bruce McMath James E. McMenis Toney D. McMillan Paul D. McNeill Jack A. McNulty Russ Meeks Michael Millar Lance R. Miller Phillip J. Milligan Philip Miron Chalk S. Mitchell H. Maurice Mitchell Thomas Ark Monroe, III James M. Moody Harry Truman Moore Charles A. Morgan W. Frank Morledge Stephen E. Morley Kenneth R. Mourton Rosalind M. Mouser William Kirby Mouser Ralph C. Murray Timothy J. Myers E. Sheffield Nelson Charles R. Nestrud

David Newbern George H. Niblock Raymond L. Niblock Wyck Nisbet, Jr. Dana Daniels Nixon R. Gary Nutter Debby Thetford Nye Bobby Lee Odom Edward T. Oglesby Hugh R. Overholt Charles C. Owen Charles R. Padgham Chris L. Palmer Jerry D. Patterson Nicholas H. Patton Claibourne W. Patty, Jr. Jennifer Payton John R. Peel Richard L. Peel B. Jeffery Pence Neal R. Pendergraft Edward M. Penick Mark Alan Peoples Donna C. Pettus Ellis Lamar Pettus John V. Phelps Norwood Phillips George N. Plastiras David M. Powell Jerry D. Pruitt Donald C. Pullen John I. Purtle Joseph H. Purvis Steven W. Quattlebaum Richard L. Ramsay Danny M. Rasmussen Brian H. Ratcliff Gordon S. Rather, Jr. Chris R. Reed R. Jeffrey Reynerson Elton A. Rieves, III Lewis E. Ritchey William S. Robinson Charles B. Roscopf Charles D. Roscopf Kent J. Rubens John L. Rush J. Shepherd Russell, III

Donald S. Ryan G. Randolph Satterfield Don M. Schnipper John R. Scott Frank B. Sewall Deborah Sexton Dennis L. Shackleford Stephen M. Sharum J. L. (Jim) Shaver, Jr. Matthew J. Shepherd W. Brad Sherman William F. Sherman Scotty M. Shively Robert Shults Steven T. Shults Ted C. Skokos Douglas O. Smith, Jr. J. Timothy Smith James E. Smith, Jr. James W. Smith Robert D. Smith, III David Solomon J. William Spivey, III James D. Sprott Thomas S. Stone John F. Stroud, Jr. William H. Sutton Tylar C.M. Tapp, III Richard D. Taylor W. H. Taylor Rex M. Terry William L. Terry Kent Tester F. Mattison Thomas, III Floyd M. Thomas, Jr. Robert F. Thompson Danny Thrailkill Christopher R. Thyer Cindy Thyer Robert D. Trammell N. Walls Trimble C. Bass Trumbo Fred S. Ursery James R. Van Dover Marc W. Van Pelt David B. Vandergriff A. Glenn Vasser William A. Waddell, Jr.

John C. Wade Wyman R. Wade, Jr. Eddie H. Walker, Jr. Bill H. Walmsley Bill Walters G. Christopher Walthall Stan L. Warrick Jerry W. Watkins John D. Watson Timothy F. Watson, Sr. Richard N. Watts David J. Whitaker David H. Williams Richard A. Williams Robert H. Williams W. Jackson Williams, Jr. Robert M. Wilson, Jr. William R. Wilson, Jr. Zachary D. Wilson Jennifer Wilson-Harvey Teresa M. Wineland George R. Wise, Jr. Carolyn B. Witherspoon Rufus E. Wolff Tom D. Womack Rhonda K. Wood Marsha C. Woodruff Joe D. Woodward Susan Webber Wright Truman E. Yancey Cary E. Young Damon Young Dennis Zolper

Your Sustaining Member dues finance a variety of projects and programs.

This year, your support will sponsor several of the highlights at the Annual Meeting this June in Hot Springs. Recently, dues have made possible the printing of the Statutes of Limitations Handbook.

Arkansas Supreme Court Historical Society

Elhanan John Searle

By Circuit Judge Jim Spears, Twelfth Judicial Circuit

Elhanan Searle was one of the justices of the Arkansas Supreme Court named during Reconstruction under the Constitution of 1868. He was one of the so-called “carpetbaggers” who came to Arkansas with the Union forces during the Civil War and remained to make a life for himself and his family in the “Reconstructed” South.

Born on January 18, 1835, at Royalton, Fairfield County, Illinois, Searle was the eldest son of James and Elizabeth Quinn Searle. In 1855 he entered the Rock River Seminary at Mount Morris, Illinois, where he prepared for his college career at Northwestern University at Evanston, Illinois, from which he graduated in 1859 after completing his BA in just three years.

He later received an AM degree from the same institution. While at Northwestern he commenced the study of law under General John L. Beveridge of Chicago, who later became governor of Illinois. After completing his law studies in 1859, Searle went to Springfield, Illinois, where he entered the practice of law in the firm of Lincoln and Herndon. This was the law firm of Abraham Lincoln, who was elected president the fol-

28

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lowing year. Searle had a close relationship with Lincoln and corresponded with him until Lincoln’s death.

Searle enlisted in the Union Army as a private in Co. B, 10th Illinois Volunteer Cavalry in 1861. During the war he rose to the rank of Lt. Colonel and took part in the battles of Cane Hill, Prairie Grove and Fayetteville, Arkansas, as well as Perryville, Indian Territory. He later participated in the battles of Jenkins Ferry and Camden, Arkansas. He was stationed at Fort Smith and served as the Provost at that post. He mustered out of the army on August 10, 1865, at Fort Smith, where he decided to make his home. His wife had previously joined him there, and a son, Charles J. Searle, had been born in that city on May 16, 1865. On February 19, 1866, he was named Prosecuting Attorney for the Ninth Judicial Circuit, which stretched from Sebastian County on the west to Clark County on the east. He was also serving as the United States Commissioner and Assistant U.S. Attorney for the U.S. District and Circuit Courts for the Western District of Arkansas. At some point he relocated to Arkadelphia, which at the time had a greater population and was less devastated by war than Fort Smith, and was named Circuit Judge for the Ninth Circuit.

He was, however, the subject of violence that had erupted over Reconstruction policies. There was a reported assassination attempt by the

desperado Cullen Davis, who was reportedly responsible for some 27 murders in that area.

There is a story in Clark County Past and Present, which is confirmed by Emeritus Professor Michael Dougan, that Judge Searle held an Arkadelphia newspaper editor in contempt for criticizing the judge’s dissolution of a grand jury. The editor did not conceal his contempt for Searle and upon his release referred to the judge as “His Jackass-ship.”

Judge Searle was appointed to the Arkansas Supreme Court by Governor Powell Clayton on July 22, 1872. He continued to serve in that position until the adoption of the Arkansas Constitution of 1874 following the Brooks Baxter War. Searle played a small part in the Brooks Baxter War. Brooks seized the governor’s office after the Pulaski County Circuit Court ruled that he was the legally elected governor. Searle and Justice Bennett were kidnapped by Baxter forces fearing the Supreme Court would convene and confirm Brooks’ seizure of the office.

Justice Searle was removed from office with the adoption of the new constitution and returned to Illinois. He contributed much to Arkansas while here. In addition to his service on the bench he served on the State Board of Education and was an original member of the Board of Trustees to the Arkansas Industrial University, which later became the University of Arkansas. Searle practiced law in Chicago and St. Louis and later moved to Pana, Illinois, and Rock Island. He died on August 18, 1906. ■ NOTES Excerpted from “Justice Divided, A Judicial History of Sebastian County” By Judge Jim Spears (unpublished manuscript) (Photo credit, Illinois State Historical Society)

Lawyer Community Legacy Award The Arkansas Bar Association is proud to recognize two new recipients of the Lawyer Community Legacy Award.

Two awards are presented bi-annually by the Association to attorneys and judges who have performed volunteer public services out of a sense of duty, professionalism, and a genuine desire to give back to the community. Recipients were selected by the Public Information Committee after considering the nominations received by the deadline.

Scott M. Strauss

Robert B. “Bob” Branch

Scott M. Strauss loves his community and it shows. He has been an active volunteer in the Quapaw Area Council Boy Scouts of America for ten years. At the troop level, Scott has served as a Merit Badge Counselor, Troop Committee Member, Assistant Scoutmaster and Scoutmaster. At the district scouting level, Scott has served as both an Associate Adviser and Adviser of the Mohawk Chapter, Order of the Arrow, scouting’s National Honor Society. He also serves as the Adviser for multiple council, section and regional level events. He has served as the adult leader for two to three scout meetings each week and takes scouts on weekend camping and other outdoor activities 12 to 15 weekends per year.

In further support of both state and regional scouting activities, Strauss has served on the Regional Publications Staff, the Lodge Leadership Staff and teaches both scout youths and adults on various topics. In recognition of his tireless volunteer efforts, the Quapaw Lodge bestowed its Native American Service Award, the Koskalaskas Service Award, on Strauss in addition to its highest award, the Vigil Honor.

Strauss is an attorney with Barber, McCaskill, Jones & Hale, P.A. in Little Rock.

Robert B. “Bob” Branch of Paragould spent his career working to advance the legal profession as well as his community.

His sense of professionalism and genuine desire to give back to the community is evidenced by two of his major accomplishments. In 1999, he was instrumental in establishing the Endowment Foundation of Greene County, a charitable foundation affiliated with the Arkansas Community Foundation.

With an endowment of $5.3 million as of July 2007, the Endowment Foundation of Greene County is the third-largest affiliate of the ARCF. Branch was one of the founders of this endowment and has worked closely with ARCF for years.

In 1998, Bob and his late wife Jo established a charitable trust to provide scholarships to students at the University of Arkansas School of Law at Fayetteville. This trust enables students to attend law school in Arkansas without the sometimes overwhelming financial burden it can entail.

Branch is retired from Branch, Thompson, Philhours, and Warmath in Paragould.

Any person may nominate a lawyer or judge by completing the Nomination Form and turning the Form into the Arkansas Bar Association office on or before the nomination deadline. Nomination deadlines are January 31st and July 31st of each year.

Nomination forms and guidelines for the award are available at www.arkbar.com or by contacting the Association.

Vol. 43 No. 2/Spring 2008 The Arkansas Lawyer

29

Judicial Advisory Opinions Judicial Advisory Opinions are written and provided by the Judicial Discipline and Disability Commission.

Full text is available online at www.state.ar.us/jeac.index.html Advisory Opinion 2008-01 February 27, 2008 The Arkansas Judicial Ethics Advisory Committee issued an advisory opinion to Judicial Candidate Laurie A. Bridewell of Lake Village, Arkansas. Attorney Bridewell requested an opinion as to whether it would be permissible to continue to serve as city attorney for the City of Lake Village if she is elected district judge in the City of Eudora.

She also requested an opinion addressing the ramifications of her husband/law partner collecting fees from criminal cases.

In addressing whether it would be permissible to serve as city attorney for one city and district judge for another, the Committee stated that nothing in the Code addressed the issue directly. Therefore, the Committee cannot opine that the Code prohibits the holding of both offices. However, the Code of Judicial Conduct requires that she resign from judicial office to run for her elective office of City Attorney.

The Committee stated that it could not address the inquiry concerning the ramifications of criminal law generated fees collected by the judicial candidate’s husband/law partner in general. The Committee only addresses specific prospective questions with regard to judicial conduct.The Judicial Ethics Advisory Committee stated that Canon 5(A)(1)(b) of the Arkansas Code of Judicial Conduct states that a judge shall not “publicly endorse or publicly oppose another candidate for public office.”

The Committee concluded that it would violate the Code of Judicial Conduct if a judge were to support candidates for political office.

Advisory Opinion 2008-02 March 11, 2008 The Arkansas Judicial Ethics Advisory Committee issued an advisory opinion to Judge Stephen Choate of Heber Springs, Arkansas.

Judge Choate requested an opinion as to whether he must resign as circuit judge upon entering the race for county judge. He also requested an opinion on whether a candidate for county judge is subject to the election restrictions (including fundraising and the “pledges and promises” limitations).

The Judicial Ethics Advisory Committee stated that Canon 5(A) (2) of the Arkansas Code of Judicial Conduct states that a judge upon becoming a candidate for a non-judicial office must resign from judicial office. The Committee also stated that candidates for county judge have not been held subject to the judicial election restrictions. The Committee believes that in adopting the Code of Judicial Conduct the Arkansas Supreme Court did not envision county judges as falling under it.

The Committee concludes that the office of county judge should be treated as a non-judicial office. The Committee stated that a circuit judge must resign if he or she becomes a candidate for county judge.

The Committee also concluded that the candidacy for county judge would not be subject to the election restraints of the Code of Judicial Conduct. ■

The Supreme Court of Arkansas recently changed the name to more accurately reflect those served Arkansas Judges and Lawyers Assistance Program JLAP 2 Van Circle, Ste. 7 Little Rock, Arkansas 72207 501-907-2529-Confidential confidential@arjlap.org www.arjlap.org

Helping Lawyers and Judges Find Personal Solutions...Now 30

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Lawyer Disciplinary Actions Final actions from January 1, 2008, through March 31, 2008, by the Committee on Professional Conduct. Summaries prepared by the Office of Professional Conduct.

Full text documents are available on-line at http://courts.state.ar.us/courts/cpc.html.

[Note: “Model” Rules refers to the Rules of Professional Conduct as they existed in Arkansas prior to May 1, 2005.

“Arkansas” Rules refers to the Rules as they exist in Arkansas from May 1, 2005.]

DISBARMENT:

SUSPENSION:

SHEILA WHARTON, AR Bar No. 80206, of Shreveport, Louisiana, who was previously licensed to practice law in Arkansas and Louisiana was reciprocally disbarred by the Supreme Court of Arkansas on February 21, 2008, as the result of the prior Order disbarring her in the State of Louisiana.

On October 23, 2007, the Office of Professional Conduct received information from the Disciplinary Board in Louisiana concerning Ms. Wharton’s disbarment in Louisiana. Pursuant to Section 14.A of the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law, the Committee caused a Petition to Reciprocally Disbar to be filed with the Arkansas Supreme Court. On the basis of that Petition, the Court reciprocally disbarred Ms. Wharton in Arkansas.

OSCAR A. STILLEY, Bar No. 91096, of Fort Smith, Arkansas, had his Arkansas law license suspended for six (6) months, effective February 25, 2008, in Case No. CPC 2002-077. This sanction was affirmed on appeal by the Arkansas Supreme Court in No. 06-972, by the Opinion issued June 21, 2007, and available on-line. The Mandate in No. 06-972 was issued on February 25, 2008, as a result of the action of the United States Supreme Court in No. 07-779 on February 19, 2008, denying Mr. Stilley’s petition for a writ of certiorari.

INTERIM SUSPENSION: BILL R. HOLLOWAY, Bar No. 65022, of McGehee, Arkansas, was placed on interim suspension by Order in CPC 2008-003, filed on January 28, 2008, pending filing of formal disciplinary charges involving allegations of client funds missing from his trust account and other matters.

REPRIMAND: RONALD CAREY NICHOLS, Bar No. 90009, of Carlisle, Arkansas, was reprimanded and fined $5,000 in No. CPC 2007-121 by Committee Findings and Order filed February 27, 2008, for violation of Rules 1.3, 3.4(c), and 8.4(d).

Mr. Nichol’s sanction in this matter was enhanced pursuant to Section 19.L of the Procedures Regulating Professional Conduct of Attorneys at Law based upon his prior sanctions relating to appellate matters in CPC Docket Nos. 2002-156, 2003-004, and 2006-046. Panel B further imposed a

separate sanction of caution and a fine in the amount of five hundred dollars ($500.00) for his failure to respond to the formal complaint as required by Section 9.B. Mr. Nichols represented Anthony K. Randle in a criminal case in Pulaski County Circuit Court, in which Randle was found guilty of capital murder and sentenced to life without parole. After the appeal record was filed, Randle’s brief was due by June 23, 2007.

On May 17, 2007, Nichols filed a Motion to Be Relieved, stating Randle did not pay the agreed fee for representation. On June 7, 2007, the Arkansas Supreme Court denied the Motion. On June 20, 2007, Mr. Nichols filed a second Motion to Be Relieved and a Motion for Extension of Time to File Appeal Brief. The Motion for Extension of Time was granted, making the brief due by July 9, 2007. On June 29, 2007, Nichols filed a second Motion to Extend Time to File Brief.

The motion was granted and the brief was now due by August 8, 2007, with the notice stating the extension was a “final” one. No brief was filed. Nichols filed a Motion to File a Belated Appeal on August 16, 2007, and the State filed a Motion to Dismiss.

On September 6, 2007, the Arkansas Supreme Court denied Nichol’s second Motion to Be Relieved, declared Randle indigent, and appointed Nichols to represent

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Steven F. Schroeder JD, MCBA, ASA Steve@SchwartzandAssociatesLLC.com

Vol. 43 No. 2/Spring 2008 The Arkansas Lawyer

31

Lawyer Disciplinary Actions Randle on the appeal. On September 13, 2007, the Arkansas Supreme Court granted Mr. Nicholsâ&#x20AC;&#x2122; Motion to File Belated Appeal, and directed Nichols to file Randleâ&#x20AC;&#x2122;s brief by September 28, 2007. The Court referred the matter to the Office of Professional Conduct. Mr. Nichols filed his clientâ&#x20AC;&#x2122;s brief on September 27, 2007.

On November 1, 2007, Mr. Nichols was served with a Committee complaint. He failed to file a response, which failure to timely respond, pursuant to Section 9.C(4) of the Procedures, constituted an admission of the factual allegations of the formal complaint and extinguished his right to a public hearing. Following issuance of the Committeeâ&#x20AC;&#x2122;s Findings & Order, Mr. Nichols filed a Petition for Reconsideration. Panel B of the Committee on Professional Conduct denied the Petition for Reconsideration.

MORRIS W. THOMPSON, Bar No. 80145, of Little Rock, Arkansas, was reprimanded and fined $500 in Committee case No. CPC 2007-019 by Findings & Order filed February 29, 2008, on a complaint by Joshua Karriem, for violation of Rules 1.3, 1.4(a)(3), 1.4(a)(4), and 8.4(d).

Mr. Karriem was a Little Rock firefighter who was subjected to a disciplinary action.

On August 14, 2006, Karriem consulted with Thompson about his legal situation and paid Thompson $150. On August 22, 2006, Karriem was notified by the Little Rock Fire Department that he was suspended for a period of ten shifts without pay, beginning August 25, 2006, and was scheduled to return on September 24, 2006.

On September 8, 2006, Mr. Karriem was involved in a motor vehicle accident and was arrested. According to Karriem, he then employed Mr. Thompson to represent him in the criminal charges. Karriem signed a contract agreeing to pay $1,500, with $500 being paid on September 22, 2006, and the $1,000 balance being paid $250 each month for a period of four months. Karriem timely made the first payment of $500.

On September 22, 2006, Mr. Karriem received a letter notice advising him that there was an administrative hearing scheduled for September 25, 2006, concerning his arrest following a motor vehicle accident. The letter stated that Karriem could waive the hearing by notifying the fire chief by 4:30 p.m, September 22, 2006. Karriem then 32

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employed Mr. Thompson on September 22, On September 27, 2006, Mr. Karriem was 2006, to represent him in a matter relating to provided with a Pre-Termination Hearing the insubordination suspension. Thompson Notice. The hearing was scheduled for stated that he was not employed to represent September 29, 2006, and Karriem and Mr. Karriem at the September 25, 2006, hearing, Thompson appeared before the civil service as that was a separate matter from the matter commission on that date. On October 3, set for October 29, 2006. Thompson did not 2006, Karriem was placed on Administrative For consultation contact: appear at the September 25, 2006, hearing. Leave as Â&#x2039;Â&#x2013;Â&#x2039;Â&#x2030;Â&#x192;Â&#x2013;Â&#x2039;Â&#x2018;Â? Â&#x2018;Â?Â&#x2022;Â&#x2014;Â&#x17D;Â&#x2013;Â&#x2039;Â?Â&#x2030; Â&#x192;Â?Â&#x2020; Â&#x161;Â&#x2019;Â&#x2021;Â&#x201D;Â&#x2013; a result of his arrest, as he was found Dan Wojcik, AVA The fee Mr. Thompson quoted Mr. Karriem to have Â&#x2021;Â&#x2022;Â&#x2013;Â&#x2039;Â?Â&#x2018;Â?Â&#x203A; Â&#x2C6;Â&#x2018;Â&#x201D; Â&#x2C6;Â&#x2039;Â?Â&#x192;Â?Â&#x2026;Â&#x2039;Â&#x192;Â&#x17D; Â&#x17D;Â&#x192;Â&#x2122;Â&#x2022;Â&#x2014;Â&#x2039;Â&#x2013;Â&#x2022; violated fire department regulations. Â&#x2122;Â&#x2039;Â&#x2013;Â&#x160; Â&#x192; Â&#x2022;Â&#x2019;Â&#x2021;Â&#x2026;Â&#x2039;Â&#x192;Â&#x17D; Â&#x2021;Â?Â&#x2019;Â&#x160;Â&#x192;Â&#x2022;Â&#x2039;Â&#x2022; Â&#x2018;Â? Â&#x201E;Â&#x192;Â?Â?Â&#x2039;Â?Â&#x2030;Ǥ Č&#x2039;͡ͲͳČ&#x152; ͡͝ͲnjͳͲ͝Ͳ for the civil service commission matter was On November 3, Karriem was notified that Â&#x2020;Â&#x192;Â?Â&#x2122;̡Â&#x201E;Â&#x2C6;ÇŚÂ&#x192;Â&#x2020;Â&#x2DC;Â&#x2039;Â&#x2022;Â&#x2018;Â&#x201D;Â&#x2022;ǤÂ&#x2026;Â&#x2018;Â? $2,500, with $500 paid on September 22, his employment was terminated. Karriem 2006, and the remaining $2,000 due $250 Business Valuations for was advised of his right to appeal the decision x Â&#x2039;Â&#x2C6;Â&#x2013;Â&#x2039;Â?Â&#x2030; Â&#x2018;Â&#x2C6; Â&#x2022;Â&#x160;Â&#x192;Â&#x201D;Â&#x2021;Â&#x2022; x Â&#x192;Â&#x2039;Â&#x201D;Â?Â&#x2021;Â&#x2022;Â&#x2022; Â&#x2018;Â&#x2019;Â&#x2039;Â?Â&#x2039;Â&#x2018;Â?Â&#x2022; each month beginning on February 15, 2007. to the Civil Service Commission and that x Â&#x2026;Â&#x2018;Â?Â&#x2018;Â?Â&#x2039;Â&#x2026; Â&#x17D;Â&#x2018;Â&#x2022;Â&#x2022; x Â&#x2039;Â&#x2DC;Â&#x2018;Â&#x201D;Â&#x2026;Â&#x2021;

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Lawyer Disciplinary Actions a notice of appeal must be submitted in writing directly to the Commission within ten days of the date he was notified of the termination. The letter stated that it was Karriem’s responsibility to ensure that the appeal notice arrived in the Human Handshake AR Lawyer Ad

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Resources Department by the deadline.

Karriem took off from work in order to go to Mr. Thompson’s office to discuss his legal matter. Karriem immediately notified Thompson that he had until November 13 to submit his appeal to the Civil Service

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Commission. Karriem thereafter tried to contact Thompson many times, leaving messages with his answering service, with both of his secretaries, and even by stopping at his office. On November 13, Karriem spoke to Thompson’s secretary, who told Karriem that Thompson had submitted his appeal and for him “not to worry about it, as he [Mr. Thompson] had already taken care of it.” Thompson stated that he was busy with a case in federal court and instructed his secretary to tell Karriem that he was busy and could not talk to him. Thompson stated that his agreement with Karriem was for representation on a different appeal and the criminal case.

Mr. Thompson stated that he spoke to Mr. Karriem on November 13 and that Karriem was irate, yelling, and demanding that he do something. Thompson asserted that he did not believe that he relayed anything to Karriem which would form a reasonable basis for Karriem to believe that Thompson would handle an appeal from the termination of employment.

Mr. Thompson admitted that he did prepare a notice of appeal by letter dated November 13, 2006, and placed it in the care of the United States Postal Service.

Thompson said he filed it on the off chance that the Commission would accept it. The envelope Mr. Karriem received with his copy of the notice of appeal bore a postal cancellation of November 14, 2006. Karriem learned that Thompson had not taken care of his termination appeal when he called the Little Rock Human Resources Department. Karriem then called Thompson and asked him why this was not taken care of earlier. Thompson stated that it was a mis-communication between him and his staff.

On November 16, 2006, a letter was sent from the Little Rock, Human Resources Department to Mr. Thompson, stating the appeal request was untimely, as defined under Ark. Code Annotated 14-51-308, and, therefore, denied. Mr. Karriem then wrote Thompson on December 22, 2006, asking why his appeal was not filed within ten days following his receipt of the November 3 letter from the Fire Chief.

Karriem also asked for a return of some of the money he paid. In response, Thompson wrote Karriem on January 15, 2007, but did not address why he failed to file a timely

Vol. 43 No. 2/Spring 2008 The Arkansas Lawyer

33

Lawyer Disciplinary Actions notice of appeal of the decision by the Fire Chief. He only responded as to why he did not refund any of the fees paid by Karriem.

CAUTION: WILLIAM BRUCE BLEVINS, Bar No. 70008, of North Little Rock, Arkansas, was cautioned, fined $500.00, and ordered to pay $1,300.00 restitution in No. CPC 2007-082, on a complaint by David Moffatt,

by Committee Findings & Order filed March 10, 2008, for violation of Rules 1.4(a)(3), 1.4(a)(4), 1.16(d), and 3.4(c). Blevins was also separately cautioned and fined $500.00 for failure to respond to the Complaint.

Mr. Moffatt was a neighbor of Jane Zeybel, who had erected a fence along the common property line between two properties. Moffatt wanted to add to the size of his house with the construction of a two car carport. In order to obtain a building permit, Mr. Moffatt ordered a survey of his property. The survey revealed that the fence his neighbor erected was over the property line and on Moffatt’s side by a foot. Moffatt then sought the assistance of Mr. Blevins.

On October 19, 2006, Mr. Moffatt sent a letter to Mr. Blevins and enclosed a check in the amount of $1,500.00 for Mr. Blevins’ representation.

On November 7, 2006, Mr. Moffatt wrote Mr. Blevins and asked that he be called about the current status of the case.

Moffatt stated that he heard nothing from Blevins in response. On November 25, 2006, Moffatt wrote Blevins and asked him

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Send resume to Barrett & Deacon, P.A., Attn: Associate Position P.O. Box 1700, Jonesboro, AR 72403 certain questions about the matter that he wanted answered. Blevins did call Moffatt to say that he would answer his questions promptly. According to Moffatt, no answers were received from Blevins by December 16, 2006, so he wrote again and asked for information about the matter. In the letter, Moffatt told Blevins that he would not be home during the Christmas holidays but that he would contact him upon return.

Mr. Moffatt called Mr. Blevins during the weeks of January 15 and January 22. Moffatt called Blevins on January 24, 2007, but was unable to speak with him. As a result, Moffatt wrote Blevins on January 25, 2007, and asked that he return the file and the fee of $1,500.00 as his services were terminated.

Moffatt went by Blevins’ office and happened to catch him as he was leaving his office on March 26, 2007. Blevins apologized for the lack of response to the letters and telephone

calls. Blevins admitted that Moffatt deserved a refund but that he didn’t have the money right then. Blevins said that he could not locate the file right then but that Moffatt could come back later to pick up the file.

Mr. Moffatt returned to Mr. Blevins’ office a few days later. Blevins stated that he had located the file but wanted to discuss the situation more. Moffatt agreed to provide Blevins with $200.00 for his time and the telephone call but stated that he expected a return of the remaining $1,300.00. On March 30, 2007, Moffatt wrote Blevins and told him again that his services were terminated and that he expected a reimbursement of the retainer fee less $200.00 for any legal services he rendered during the period of his employment.

Mr. Moffatt filed a grievance with the Office of Professional Conduct in April 2007. In May, the Office of Professional Conduct

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Lawyer Disciplinary Actions sent a letter to Mr. Blevins in an attempt to resolve the matter between Blevins and Moffatt. Mr. Moffatt was copied with the letter. The letter set June 22, 2007, for the matter to be resolved. Neither Mr. Moffatt nor the Office of Professional Conduct received a response from Mr. Blevins after the letter was sent.

Rule VII.A of the Arkansas Rules Governing Admission to the Bar imposes an annual license fee upon each attorney actively licensed to practice law in the State of Arkansas, to be paid no later than March 1.

Rule VII.C of the Arkansas Rules Governing Admission to the Bar states that failure to pay the annual license fee provided for in subsection A shall automatically suspend the delinquent lawyer from the practice of law in Arkansas. According to records maintained in the Arkansas Supreme Court Clerk’s Office, William Bruce Blevins had not paid his 2007 annual license fees as of July 27, 2007.

On September 26, 2007, Mr. Blevins was served with a formal complaint along with a copy of all exhibits. Blevins failed to file a response to the complaint, which failure to timely respond, pursuant to Section 9.C(4) of the Procedures, constituted an admission of the factual allegations of the formal complaint and extinguished his right to a public hearing.

NAIF SAMUEL KHOURY, Bar No. 75070, of Fort Smith, Arkansas, was cautioned and fined $500.00 in No. CPC 2006-057, by Committee Consent Findings & Order

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501-605-0360 www.arkansas-investigations.com AR Lic. A20040061 filed January 18, 2008, on a Per Curiam referral by the Supreme Court of Arkansas, for violation of Rules 1.3 and 8.4(d). Henry Vidal was charged with Possession of Cocaine With Intent To Deliver. Vidal entered a plea of guilty in exchange for a sentence of forty years, with twenty years suspended.

A Judgment and Commitment Order was entered on May 26, 2006. Mr. Khoury, who represented Vidal, filed two Motions to Vacate the Plea on June 21, 2006, and June 26, 2006. Pursuant to Rule 2(b)(1) of the Rules of Appellate Procedure–Criminal, if a trial court neither grants nor denies any outstanding post-trial motion within thirty days of its filing, the motion shall be deemed denied as of the thirtieth day, and the notice of appeal shall be filed within thirty days from that date. As there was no ruling from the Circuit Court on either motion within thirty days of June 26, 2006, the post-trial

motion was deemed denied on July 26, 2006, and a notice of appeal was due to be filed no later than August 25, 2006. Mr. Khoury filed a notice of appeal on September 14, 2006, twenty days late. In his response, Mr. Khoury stated that the trial court held a hearing on August 15, 2006, at which time the trial court denied the post-trial motions filed on June 21, 2006, and June 26, 2006.

Khoury believed that the time for the notice of appeal began to run at that time and not on the July 26, 2006, date. As he filed a notice of appeal on September 14, 2006, he believed his notice of appeal to be timely.

On March 5, 2007, Mr. Khoury tendered the record to the Arkansas Supreme Court Clerk. The Clerk refused to lodge the record as the notice of appeal was late. Mr. Khoury was advised by the Arkansas Supreme Court Disciplinaries continued on page 38

TSCHIEMER LEGAL BRIEFING QUALITY, CONSISTENCY AND REASONABLE PRICES: HANDLING ALL YOUR BRIEFING NEEDS ___________ Robert S. Tschiemer, Esq., Ark. Bar 84148 43001 Hwy. 89 N. Mayflower, AR 72106 (501) 951-3303, (fax) (501) 325-1235 email: legalbriefing@sbcglobal.net Vol. 43 No. 2/Spring 2008 The Arkansas Lawyer

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Arkansas Bar Association 110th Annual Meeting joint meeting with the Arkansas Judicial Council Arlington Hotel • Hot Springs • June 11-14, 2008 Annual Meeting Chair Jeffrey Ellis McKinley invites you and your family to the Arkansas Bar Association’s biggest event of the year at the historic Arlington Hotel in Hot Springs.

Featured Artist Jane Lovett Holt

EDUCATION Learn How to Polish Your Trial Techniques On Thursday a mock trial will be conducted demonstrating all stages of a jury trial. The case involves patents – but don’t be fooled, this will help you polish your trial techniques for any area involving the practice of law.

Neal Katyal A professor at Georgetown University Law School, he recently won Hamdan v.

Rumsfield in the United States Supreme Court.

Hamdan challenged the policy of military trials at the Guantanamo Bay Naval Station in Cuba. Professor Katyal will present “Guantanamo, the Supreme Court, and the Rule of Law” on Thursday.

ENTERTAINMENT The Rythmn Shakers Thursday evening

The Bob Noone Show Thursday evening

“The Rythmn Shakers” are best described as a true variety band, with a mixture of percussions accompanied by guitar, bass, and keyboards.

Donna Massey & the Blue Eyed Soul Friday evening There’s no doubt about it, Donna Massey just doesn’t “cover” a song, she wraps it up, rolls it in flour, and puts on a deep southern fried R & B coating that’s the best you’ll hear (taste) this side of Motown.

36 36

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Plan to spend an evening of fun and laughter with entertainment by “The Bob Noone Show.”

Nationally, Bob is known as the Perry Mason of Parody, helping his audiences enjoy the lighter side of the legal world and current events.

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Lawyer Disciplinary Actions Clerk that he needed to file a Motion for Rule on the Clerk, which he did on March 14, 2007. The Arkansas Supreme Court granted the motion in a Per Curiam order and referred the matter to the Office of Professional Conduct.

BRYAN J. REIS, Bar No. 79239, of Hot Springs, Arkansas, was cautioned, in CPC 2007-081, by Committee Findings & Order filed February 20, 2008, on a complaint by Clifford Block, Esq. for violation of Rules 1.7(a)(2) and 1.9(a). On April 4, 2007, the Garland County Circuit Court granted plaintiff’s Motion to Disqualify Mr. Reis, defendant’s counsel of record in Case No. CV 2006-841-III, Marian N. Howell, Nathan B. Howell, and Bear’s Pizza Co., Inc. v. F. Lee Beasley III and Deborah Hunter. The basis of the court’s disqualification was Mr. Reis’s joint representation of Nathan Howell and F. Lee Beasley in matters the court deemed the same or substantially related transactions to issues in the litigation.

Likewise in Case No. CV 2006-852-III, F. Lee Beasley v. Marion N. Howell and Nathan B. Howell, the Garland County Circuit Court granted defendant’s Motion to Disqualify Reis as plaintiff’s counsel of record. The court found that (1) Reis had

previously engaged in joint representation of Nathan Howell and Beasley in the same or substantially related transactions at issue in the litigation, (2) that the men now had materially adverse interests, and (3) that, although there was no impropriety, the disqualification was necessary to avoid the appearance of such. Prior to a ruling in either of these cases, the court invited counsel to submit citations of any supporting case law.

In his letter brief to the court, Reis denied that an attorney-client relationship ever existed as between Reis and Mr. Howell given that Howell hired other counsel to represent him. However, Reis testified at the hearing on March 13, 2007, that he at one time engaged in joint representation of Mr. Howell and Mr. Beasley. ■

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E-discovery continued from page 18

over the country that is rarely, if ever, being accessed again. If you don’t believe me, take a look at your computer folders or, even better, your email Inbox. An effective record retention policy will ensure that pertinent records are being kept so long as there is a business need or legal obligation to do so.

Second, for any record retention plan to succeed, it must be supported by management. A policy that is not supported and enforced by management is a policy that is doomed to fail. Even worse, an unenforced policy could subject a client to potential sanctions if it appears that the client violated its own policy in handling records subject to discovery. With management “buy-in,” a client can ensure that the record retention policy it creates will be enforced.

Third, assemble a team of individuals from different departments such as IT, human resources, accounting, and legal to assist in the creation of the record retention policy. While we attorneys generally believe that we are capable of crafting policies to cover just about any conceivable scenario, the reality is that a policy may be legally sound but practically impossible to carry out. An impractical policy that does not take into account the different needs of different departments is also doomed to fail.

Fourth, conduct an inventory of records maintained both electronically and on paper and the location in which such records are maintained. Records maintained in filing cabinets are the easy ones; those maintained only on computers of certain individuals or on laptops, flash drives, or home computers used for business purposes are a different matter altogether. Thus, interviewing a client’s employees to determine what records they produce and where they maintain them is critical because that may be the only way to know all of the types of records, paper and electronic, that are being kept and where they might be located. It will also help determine whether certain types of records possess some historical value that might warrant keeping them for a longer period of time than might otherwise be required.

Fifth, once the inventory is complete, assign retention periods to each category of records based on federal law, state law, industry standards, and potential statutes of limitations that could apply. With respect to federal law, there are numerous statutes and regulations (Sarbanes-Oxley, ERISA, HIPAA, and OSHA regulations, to name a few) that specify retention periods for certain types of records.

Similarly, there are also numerous state laws that govern the types of records that businesses must maintain. For example, there are statutes governing the retention of banking records (Ark. Code Ann. § 23-46-511), corporate records (Ark. Code Ann. § 4-27-1601), and employment records (Ark. Code Ann. §§ 11-2-115, 11-4-218).

Lastly, statutes of limitations should also be considered. If a business has contracts with various vendors or customers, it is possible that a breach of contract action could arise. Because the statute of limitations in Arkansas for a breach of contract claim is three years after the cause of action accrues, a business should consider retaining a copy of its contracts and any supporting documentation for at least that long, if not longer.

Sixth, an effective record retention policy must include a litigation hold procedure for ensuring that records that are subject to discovery are maintained until the basis for the hold no longer exists. Spence Fricke’s article in this issue provides an excellent overview of litigation hold issues, so I won’t go into details about litigation hold procedures except to say this: the litigation hold obligation cannot be carried out without the input and assistance of the IT department. Therefore, when devising the procedures for halting the deletion or overwriting 40

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of electronically stored information, members of the IT department must be involved.

Seventh, include destruction procedures in the record retention policy. If that seems a little contradictory, the reality is that records that no longer satisfy a business need or are no longer legally required to be kept should be destroyed in a timely fashion according to the record retention schedule and established procedures. There are numerous reasons for this including preservation of resources. However, there are plenty of horror stories about the “smoking gun” memos or emails that came to light several years down the road that might never have seen the light of day, much less the glare of a courtroom or television cameras, if a record retention policy had been followed.

Having said that, one point should be made crystal clear: there is difference between destroying records to obstruct an investigation versus following a valid record retention policy and destroying records at a predetermined time when there is no legal obligation to retain them. As the United States Supreme Court stated in Arthur Anderson v. United States, 544 U.S. 696, 704-05 (2005), “Document retention policies, which are created in part to keep certain information from getting into the hands of others, including the Government, are common in business. It is, of course, not wrongful for a manager to instruct his employees to comply with a valid document retention policy under ordinary circumstances.”

Eighth, review the policy annually and monitor for compliance. A valid record retention policy is not something that is drafted, enacted, and placed behind glass. To the contrary, it is something that should be reviewed annually to ensure that it’s workable, that it’s being followed, and that records that need to be retained are being retained.

An annual review will also provide the opportunity to revise the retention periods in the event the business need for retaining records has changed. Further, an annual review provides a good opportunity to re-educate employees concerning the policy to ensure that it is being followed. After all, if called upon to defend the destruction of records that only later became material to a lawsuit, a company will be in a much better position if it can establish that the records were destroyed pursuant to an enforced policy on which employees were thoroughly trained.

Conclusion While the amendments to the Federal Rules of Civil Procedure provide a framework for the production of ESI, they also provide the incentive for clients to implement and enforce a record retention policy. It is also clear that the courts are increasingly requiring attorneys to familiarize themselves with their clients’ record retention policies in order to ensure full compliance with the amendments. Given the stiff penalties that courts are imposing on parties who fail to preserve and produce ESI, there is no better time than the present to bridge the gap between the requirements of the amendments and the record retention policies of our clients. ■

Endnotes continued from page 13

19. Id. 20. 18 U.S.C. § 1030(e)(2)(B).

21. Id. 22. See id.

23. 18 U.S.C. § 1030(g).

24. 18 U.S.C. § 1030(g).

25. 18 U.S.C. § 1030(g).

26. 18 U.S.C. § 1030(a)(5)(B).

27. Fiber Systems Intern., Inc. v. Roehrs, 470 F.3d 1150, 1157 (5th Cir. 2006).

28. 18 U.S.C. § 1030(g).

29. 18 U.S.C. § 1030(g); P.C. Yonkers, Inc. v. Celebrations the Party and Seasonal Superstore, LLC, 428 F.3d 504, 511 (3rd Cir. 2005).

30. 18 U.S.C. § 1030(a)(4).

31. 18 U.S.C. § 1030(a)(4).

32. United States v. Czubinski, 106 F.3d 1069, 1078 (1st Cir. 1997) 33. 18 U.S.C. § 1030(a)(2).

34. 18 U.S.C. § 1030(a)(2).

35. 18 U.S.C. § 1030(a)(6).

36. 18 U.S.C. § 1030(a)(6).

37. Shurgard Storage Centers, Inc. v. Safeguard Self Storage, Inc., 119 F. Supp. 2d 1121 (W.D. Wash. 2000).

38. Id. at 1122-23.

39. Id. at 1123.

40. Id. 41. Id. 42. Id. at 1122.

43. Id. 44. Id. at 1124-25.

45. Id. at 1124.

46. Id. at 1125.

47. E.g., P.C. Yonkers, 428 F.3d 504.

48. Creative Computing v. Getloaded.com, 386 F.3d 930, 934 (9th Cir. 2004).

49. EF Cultural Travel v. Explorica, Inc., 274 F.3d 577, 584 (1st Cir. 2001).

50. Id. 51. Creative Computing, 386 F.3d at 935.

52. Four Seasons Hotels and Resorts B.V. v.

Consorcio Barr, S.A., 267 F. Supp. 2d 1268, 1324 (S.D. Fla. 2003).

53. 18 U.S.C. § 1030(e)(11).

54. Ark. Code Ann. § 4-75-606.

55. 18 U.S.C. § 1030(g).

56. 18 U.S.C. § 1030(g).

57. Fiber Sys. Int’l v. Roehrs, 470 F.3d 1150, 1159 (5th Cir. 2006).

58. Liebert Corp. v. Mazur, 2004 WL 2095666 (N.D. Ill. 9/17/04) (unpublished).

59. Ark. Code Ann. §§ 5-401-101— 206.

60. Ark. Code Ann. § 5-41-106.

61. Ark. Code Ann. § 5-41-104.

62. Ark. Code Ann. § 5-41-103.

63. Ark. Code Ann. § 5-41-106(a).

64. Id. 65. Ark. Code Ann. § 4-75-602(b).

66. Nilfisk-Advance, Inc. v. Mitchell, 2006 WL 827073 (W.D. Ark. 3/28/06) (unpublished). ■

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/DZ\HU 'LVFLSOLQDU\ $FWLRQV Data Backup continued from page 24

individual file restoration features.)

There are several caveats to using disk images. You may need the same type of computer to restore your disk image, as the drivers may be specific to certain hardware such as specific motherboards.5 Also, a disk image is a single file—to access at any of the data contained in the disk image, with some programs you might have to install the entire disk image to a computer, which could take a long time due to the potentially large amount of data in a disk image—Acronis True Image however allows users to search through disk images and restore individual files without having to restore an entire disk image.6 If you choose not to use disk imaging software, it is very important to keep any software installation discs, software installation files downloaded from the internet, and license numbers and other relevant information handy. You may have to reinstall your operating system and application software—many drivers, updates, and patches may still need to be downloaded from the internet, especially if updated versions have been released.

Networking For backing up data from multiple computers, networking the computers, if they are not already networked together, can make backing up the data less complicated. In a client-server network, users can save their files to the central server, and then back up software can be set to back up the entire server or certain folders from the server automatically at set times. If multiple computers are part of a peer-to-peer network, multiple users can store their files on a computer dedicated to storage or on a network attached storage device, either of which can be backed up automatically using backup software.

Network attached storage devices are basically external hard drives which connect to a router and are accessible on a local network.

An external hard drive connected to a single computer can also be made accessible to all of the computers on a peer-to-peer local network; however, a difference is that the external hard drive will only be accessible to the local network when that specific computer is on, while access to a network attached storage device is not dependent upon any single computer being on.7 Disk Imaging and Backup Software Here are links to some backup and disk imaging software programs: Acronis True Image (Acronis True Image 42

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can be used to create disk images, perform incremental disk imaging, and features the ability to restore individual files from disk images without having to restore the entire disk image) http://www.acronis.com/homecomputing/products/trueimage/ Norton Ghost 12 (Norton Ghost 12 can be used to perform file backups as well as to create disk images) http://www.symantec. com/home_homeoffice/products/overview. jsp?pcid=br&pvid=ghost12 SyncBackSE (SyncBackSE performs file backups but does not produce disk images) http://www.2brightsparks.com/syncback/syncback-hub.html Review of SyncBack (scroll to the bottom of the article) http://www.llrx.com/columns/ legaltech39.htm Online Backup Here are links to several resources that discuss online backup: Avert Disaster: Protect Your Practice with Online Backups http://www.abanet.org/lpm/ lpt/articles/tch10051.html The Importance of Having Backups (see the “Online Backup” section) http://www.abanet. org/tech/ltrc/publications/backup.html Backing up in Cyberspace http://www. abanet.org/genpractice/magazine/2005/dec/ backup.html Back Up Your Files Online Without Even Trying http://www.pcworld.com/article/ id,129786/article.html Sample Questions to Ask Online Storage Vendors http://www.scbar.org/pmap/documents/Questionstoaskonlinestoragevendors. pdf General Articles Here are several other articles about various aspects of data backup: The Importance of Having Backups (Includes information on backup media, backup software, and online backups, as well as other information) http://www.abanet.org/ tech/ltrc/publications/backup.html Backup: Your Most Important Task (This introductory information is provided by a producer of backup software but includes information about backups that can apply regardless of what backup software you might use) http://www.2brightsparks. com/tutorials/thebackupguide.html Backup Tips: Keep Your Data Backups Safe, Simple, and Fast http://www.pcworld. com/article/id,123796-page,1/article.html Backup method comparison chart (a chart on the pros and cons of various backup media) http://www.pcworld.com/zoom?id=123 796&page=2&type=table&zoomIdx=1

Too Many Backups? No Such Thing (requires free registration) http://www.law. com/jsp/legaltechnology/pubArticleLT. jsp?id=1157557743424 Disaster Planning and Security Issues http://www.abanet.org/tech/ltrc/presentations/sanjoaquinbar.pdf Business Continuity and Disaster Recovery Planning (Online Course) http://www.abanet.org/abastore/ index.cfm?section=main&fm=Product.

AddToCart&pid=CETS07BCDI Backing up in Cyberspace http://www. abanet.org/genpractice/magazine/2005/dec/ backup.html Network Attached Storage Devices - An Inclusive Review http://www.gizmowatch. com/entry/network-attached-storage-devices-an-inclusive-review/ Networking How-To Center (for Windows XP) http://www.microsoft.com/windowsxp/using/networking/default.mspx How to Set Up RAID on Your PC http://www. pcworld.com/article/id,132877/article.html Planning Your RAID Setup http://www. pcworld.com/article/id,125508/article.html References 1. Data Archiving: What’s Your Liability?

E-Mail Retention: The High Cost of Digging Up Data http://www.baselinemag. com/article2/0,1540,1998112,00.asp 2. Paperless Office: Hardware and Software http://www.abanet.org/tech/ltrc/presentations/paperlesstechnology.pdf 3. Backup Tips: Keep Your Data Backups Safe, Simple, and Fast http://www.pcworld. com/article/id,123796-page,1/article.html 4. Features/Backup http://www.acronis. com/homecomputing/products/trueimage/ features-backup.html 5. For example, Acronis True Image 10 Home requires that you install the image to the same hardware; Acronis True Image 9.1 Workstation with Acronis Universal Restore can be used to restore a disk image to different hardware. See http://www.acronis. com/homecomputing/products/trueimage/comparison.html and http://www. acronis.com/enterprise/pr/ltc_interviews/ March_17_2007/ 6. Features/Recovery http://www.acronis. com/homecomputing/products/trueimage/ features-recovery.html 7. Add a Hard Drive to Your Network, http:// reviews.cnet.com/4520-3243_7-5553677-1. html; Networked Storage Heads for Homes, http://news.com.com/Networked+storage+ heads+for+homes/2100-1042_3-6051726. html ■

9RO 1R 6XPPHU 7KH $UNDQVDV /DZ\HU Vol. 43 No. 2/Spring 2008 The Arkansas Lawyer 43

Litigation Holds continued from page 22

The final – and probably most difficult – step in the entire litigation hold process is monitoring the litigation hold. Judge Scheindlin described the attorney’s responsibility as follows in Zubulake V: In short, it is not sufficient to notify all employees of a litigation hold and expect that the party will then retain and produce all relevant information. Counsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched. This is not to say that counsel will necessarily succeed in locating all sources, or that the later discovery of new sources is evidence of a lack of effort. But counsel and client must take some reasonable steps to see that sources of relevant information are located [court’s emphasis].

229 F.R.D. 422, 432 (S.D.N.Y. 2004).

What monitoring steps are necessary are, of course, subject to the facts of a given case. Judge Scheindlin, however, obviously intended for followup reminders to be given

to the client and employees, Zubulake V at 432, and for the litigation hold to be periodically reissued to all concerned. Id. at 433. A compliance employee should probably come into play at this point. This individual would be responsible for making sure legal holds were disseminated to those who needed to know and that questions were answered and the general process monitored. Sedona Conference, Guideline 10.

One final suggestion is probably in order at this point, even though it involves additional document creation. Documentation of a legal hold policy and the process used to implement the policy is always advisable for the protection of both client and counsel. The policy should generally describe when the hold was instituted, its scope, any changes, and a general description of the individuals involved. See, e.g., Sedona Conference, Guideline 9. A written and adequately described litigation hold process should go a long way toward thwarting any efforts of the opposing party at claiming some problem in terms of ESI and its preservation. Indeed, much of the litigation hold procedure is designed to protect both counsel and client as each tries his or her best to identify, gather and preserve elusive ESI in the litigation process.

Special thanks to Matthew Barker for his crucial research and editing assistance.

End Notes: 1. Zubulake v. UBS Warburg, 217 F.R.D. 309 (S.D.N.Y. 2003) (Zubulake I); Zubulake v. UBS Warburg, 230 F.R.D. 290 (S.D.N.Y. 2003) (Zubulake II); Zubulake v. UBS Warburg, 216 F.R.D. 280 (S.D.N.Y. 2003) (Zubulake III); Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y. 2003) (Zubulake IV); Zubulake v. UBS Warburg, 229 F.R.D. 422 (S.D.N.Y. 2004) (Zubulake V).

2. Federal Rules of Civil Procedure 16, 26, 33, 34, 37 and 45.

3. It is of importance to mention that the Advisory Committee notes on the 2006 amendments provide: “A party’s identification of sources of electronically stored information as not reasonably accessible does not relieve the party of its common-law or statutory duties to preserve evidence.” At first glance, that note seems to conflict with Rule 26(b)(2)(B) and holdings in Zubulake V; however, it seems as though the Advisory Committee is concerned with a party’s attempt to relieve itself of its standard duties to preserve evidence in general by claiming that the sources of ESI are not readily accessible. ■

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In Memoriam Women Lawyers Association and in that capacity played a key leadership role in obtaining ratification of the equal rights amendment in Arkansas, according to an obituary in the Arkansas Democrat-Gazette.

Judge Clarence Phillips “Phil” Shoffner Judge Clarence Phillips “Phil” Shoffner of Searcy died February 14, 2008, at the age of 65. He graduated from the University of Central Arkansas and earned a graduate degree from the University of Arkansas at Fayetteville and earned his juris doctorate degree from the University of Arkansas School of Law. He taught school in Paris, Arkansas, Rivercrest High School in Wilson, Sylvan Hills High School in North Little Rock, Monticello High School and Searcy High School. Judge Shoffner practiced law in Searcy for many years. He served as city attorney in Beebe, city judge in McRae, Higginson and Bradford, Searcy municipal judge, and was serving as the White County district judge at the time of his death. He was a longtime member of the Arkansas Bar Association where he served on numerous committees and sections. He was a member of the White County and Pulaski County Bar Associations. He is survived by his wife, Margo; children, Martin, Corbitt, and Brittany; and four grandchildren.

Jack D. Files Jack D. Files of North Little Rock died February 29, 2008, at the age of 75. After serving in the United States Navy during the Korean War, he returned to Arkansas where he received a BA and a JD from the University of Arkansas at Fayetteville.

His interest in politics began during his college years, according to an obituary in the Arkansas Democrat-Gazette. During his career he served as aid to Governor 46

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Orval Faubus, and administrative assistant to Congressman Wilbur D. Mills, and a legislative assistant to Senator William J. Fullbright. After a run for Congress, he entered private practice, served a term as Pulaski County attorney, and retired from Gary Eubanks and Associates at the age of 70. He was a member of the Arkansas Bar Association. He is survived by his wife Jo Anne Schaefer Files; three sons, Jonathan, Joel, and Jackson; and one daughter, Jana.

John T. Haley John T. Haley of Warren died January 15, 2008, at the age of 90. He served in the United States Marine Corps during World War II. He graduated from Arkansas A & M, Hendrix College and George Washington University. He practiced law in Warren, joining Aubert Martin in 1948 to form the law firm of Martin and Haley. At his retirement he was of counsel to the firm of Haley, Claycomb, Roper and Anderson. He was a member of the Arkansas Bar Association.

He served as city attorney for the City of Warren from 1948 to 1986. He is survived by his wife, Ann Crow Haley.

Virginia Onstead Tackett Virginia Onstead Tackett of Eureka Springs died January 14, 2008, at the age of 88. She graduated from Ouachita Baptist College and earned a juris doctorate from the UALR School of Law. She was an attorney in the Right of Way Division of the Arkansas State Highway Department.

She served as the president of the Arkansas

Jon Warren Coleman Jon Warren Coleman of Jonesboro died January 20, 2008, at the age of 32. A native and life-long resident of Jonesboro, Jon was an attorney with Oldham & Coleman, PLLC in Jonesboro. He was a graduate of Crowley’s Ridge Academy, the University of Arkansas at Fayetteville, and the University of Arkansas School of Law. He was a member of the Arkansas Bar Association. He is survived by his mother Jan Coleman; stepfather Ron McCoy; and brother Kyle Coleman.

Billie Franklin Jennings Billie Franklin Jennings of Magnolia died March 2, 2008, at the age of 66. He was a Vietnam veteran, receiving two Bronze Stars, including one for valor, a Purple Heart and numerous Korean and Vietnam medals for service as an officer in the Navy Phoenix Program’s initial operations. He received his bachelor’s degree from Southern Arkansas University and his doctorate in jurisprudence from the University of Arkansas at Fayetteville. He practiced law for more than thirty years in Magnolia, serving as both prosecutor and defense counsel. He was a member of the Arkansas Bar Association.

He is survived by his wife, Nancy Wilkerson Jennings; and three daughters, Susan Jennings, Leslie Jennings, and Elisa Jennings Sullivan.

William Lewis Ford William Lewis Ford of Hot Springs Village died March 7, 2008, at the age of 64. He received a Master’s Degree in math and physics from the University of Maryland. He served in the United States Air Force and then graduated from the UALR School of Law. He operated the Garland Abstract and Title Company and the Village Law Offices. He was a member of the Arkansas Bar Association and the American Bar Association. He is survived by his wife, Patricia “Pat” Ford, and daughter, Hayley Malone.

Arkansas Bar Foundation Memorials and Honoraria The Arkansas Bar Foundation acknowledges with grateful appreciation the receipt of the following memorial, honorarium and scholarship contributions received during the period January 1, 2008, through March 31, 2008.

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