Nashville Bar Journal March 2012 - VOL 12, NO. 2
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ELECTRONIC CONTRACTING: A Brief Guide to E-Sign and the UETA Patrick Norton
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Reviewing E-Discovery Model Orders as Administrative Order No. 174 Turns Five W. Russell Taber, III
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The Employer's Paradox: Drafting and Applying Social Media Policies to Pass NLRB Muster Ben Bodzy
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You Are Invited... The Middle Tennessee Chapter of the Association of Legal Administrators cordially invites you to its annual Managing Partners Luncheon. Take advantage of the opportunity to hear Thomas S. Clay, a nationally recognized speaker and principal with the legal consulting firm of Altman Weil, Inc., discuss 2012 Legal Industry Trends. This event is open to the legal community; ALA membership is not required. April 18, 2012 NooN - 1:30 p.m. WAller lANsdeN dortch & dAvis NAshville city ceNter, 28th Floor, 511 UNioN street, NAshville, tN $50.00 per persoN (limit tWo AtteNdees per lAW Firm)
At the end of the day...
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To RSVP, please visit: WWW.mtAlA.org. Registration is limited and ends April 10, 2012.
Who’s Watching Your Firm’s 401(k)?
SponSored by richardS & richardS
The American Bar Association Members/Northern Trust Collective Trust (the “Collective Trust”) has filed a registration statement (including the prospectus therein (the “Prospectus”)) with the Securities and Exchange Commission for the offering of Units representing pro rata beneficial interests in the collective investment funds established under the Collective Trust. The Collective Trust is a retirement program sponsored by the ABA Retirement Funds in which lawyers and law firms who are members or associates of the American Bar Association, most state and local bar associations and their employees and employees of certain organizations related to the practice of law are eligible to participate. Copies of the Prospectus may be obtained by calling (800) 826-8901, by visiting the Web site of the ABA Retirement Funds Program at www.abaretirement.com or by writing to ABA Retirement Funds, P.O. Box 5142, Boston, MA 02206-5142. This communication shall not constitute an offer to sell or the solicitation of an offer to buy, or a request of the recipient to indicate an interest in, Units of the Collective Trust, and is not a recommendation with respect to any of the collective investment funds established under the Collective Trust. Nor shall there be any sale of the Units of the Collective Trust in any state or other jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such state or other jurisdiction. The Program is available through the Nashville Bar Association as a member benefit. However, this does not constitute an offer to purchase, and is in no way a recommendation with respect to, any security that is available through the Program.
Nashville Bar Journal A Monthly Publication of the Nashville Bar Association
www.nashvillebar.org
ELECTRONIC CONTRACTING: A Brief Guide to E-Sign and the UETA
March 14 - 12:00 p.m. Community Relations Committee Meeting
Patrick Norton
March 15 - 12:00 p.m. Business Transactions Committee Meeting
PAGE 6
Reviewing E-Discovery Model Orders as Administrative Order No. 174 Turns Five PAGE 8
W. Russell Taber, III
FROM THE PRESIDENT Fiat justitia ruat coelum
(“Let justice be done though the heavens may fall.”) PAGE 2
John Kitch _______________________________________________ 4 Communiqué • 2012 NBA Golf Tournament • Law Day • Mock Trail • Napier-Looby Officers • Award nominations Sought • Upcoming Events
_________________________________________________________ 10 The Employer's Paradox: Drafting and Applying Social Media Policies to Pass NLRB Muster Ben Bodzy _________________________________________________________ 12 Bill & Phil’s Gadget of the Month: Make Your Smart Phone Smarter Bill Ramsey, Neal & Harwell, PLC Phillip Hampton, LogicForce Consulting _________________________________________________________ CLE Information - Center Section _________________________________________________________ 14
March 16 - 12:00 p.m. ADR Committee Meeting March 19 - 11:30 am. Probate Committee Meeting March 20 - 12:00 p.m. Ethics Committee Meeting March 22 - 9:30 a.m. Finance Committee Meeting March 22 - 10:30 a.m. Executive Committee Meeting
March 28 - 12:00 p.m. Memorial Committee Meeting March 29 - 4:00 p.m. Criminal Court Committee Meeting April Sister Cities Visit, Caen Delegation April 30 11:15 a.m. - 12:15 p.m. Law Day Luncheon @ Renaissance Hotel Senator Lamar Alexander Registration on page 20 May 10, 2012 NBA Golf Tournament @ Nashville Golf & Athletic Club in Brentwood, TN Registration on page 16
March 27 - 4:30 - 6:00 p.m. L2L Reception
View Full Calendar online at www.nashvillebar.org
-Golden Oldies-
Profile: Judge Hamilton V. Gayden
Bart Pickett _________________________________________________________ 16 GOLF TOURNAMENT REGISTRATION _________________________________________________________ 18 LAW DAY REGISTRATION _________________________________________________________ 22
Disclosure - Announcements • Kudos • People on the Move • Firm News • In Memory _________________________________________________________ 24 Classified Listings _________________________________________________________
----------------------------------------------------------------------------------------------Identify the individuals in the photo. Be the first to email the correct answer to nikki.gray@nashvillebar.org and your name (along with your correct entry) will appear in next month’s issue. ------------------------------------------------------------------------
Nashville Bar Journal A Monthly Publication of the Nashville Bar Association
www.nashvillebar.org
John Kitch, Publisher William T. Ramsey, Editor-in-Chief ramseywt@nealharwell.com
Eleanor Wetzel, Managing Editor eleanorwetzel@jis.nashville.org
Journal Staff: Nikki Gray, Director of Communications nikki.gray@nashvillebar.org
Tina Ashford, Communications Coordinator tina.ashford@nashvillebar.org
Editorial Committee: Kelly L. Frey Kathleen Pohlid Tim Ishii Tracy Kane Rhett Parrish Bill Ramsey Rita Roberts-Turner Eleanor Wetzel David Winters Victoria Webb
Nashville Bar Association Staff Gigi Woodruff Executive Director ----------Tina R. Ashford Communications Coordinator Susan W. Blair Director, Continuing Legal Education Shirley Clay Finance Coordinator Wendy K. Cozby Lawyer Referral Service Coordinator Nikki R. Gray Director of Communications Traci L. Hollandsworth Programs & Events Coordinator Judy Phillips CLE Coordinator Vicki Shoulders Membership Coordinator/Office Manager The Nashville Bar Journal, ISSN 1548-7113, is published monthly by the Nashville Bar Association at 150 Fourth Avenue North, Suite 1050, Nashville, TN 37219, (615) 242-9272. Periodicals Postage Paid, Nashville, TN (USPS 021-962). Subscription price: $25 per year. Individual issues: $5 per copy. POSTMASTER: Send address corrections to Nashville Bar Journal, 150 Fourth Avenue North, Suite 1050, Nashville, TN 37219 No part of this publication may be reprinted without written permission of the Nashville Bar Journal Editorial Committee. The Nashville Bar Journal is not responsible for the return or loss of unsolicited manuscripts or for any damage or other injury to unsolicited manuscripts or artwork. All Articles and Letters contained in this publication represent the views of the authors and do not necessarily reflect the opinions of the Nashville Bar Association.
Nashville Bar Association 150 Fourth Avenue North Suite 1050 Nashville, TN 37219 615-242-9272 Fax 615-255-3026 www.nashvillebar.org
2 Nashville Bar Journal - March 2012
FROM THE PRESIDENT
by John Kitch
Fiat justitia ruat coelum
(“Let justice be done though the heavens may fall.”) Motto, Tennessee Supreme Court
Save the date for Law Day 2012: April 30 at 11:15 a.m.,1 at the Renaissance Hotel in downtown Nashville. The theme for Law Day this year is “No Courts, No Justice, No Freedom” and is derived from the notion that courts are essential to a free society but currently are under attack on a number of fronts. Our state and federal constitutions would be of little value if there were no courts available to enforce them and thereby safeguard every person’s legal rights. Courts belong to all of us and serve to protect us from abuses of power and ever changing political winds. We are privileged this year to have as our speaker Senator Lamar Alexander to tell us about one particular abuse of power and the steps taken to stop it. Senator Alexander has served in a rich variety of leadership roles over many years, holding positions as the U.S. Secretary of Education, president of the University of Tennessee, United States Senator from Tennessee, and most importantly for our Law Day presentation, governor of Tennessee. He recently donated his pre-Senate papers to the Vanderbilt University Library’s Special Collections Section at Vanderbilt’s newly renovated Central Library. These papers and materials include video, transcripts, and correspondence surrounding his early swearing-in as governor of our state. It is that remarkable event about which Senator Alexander will address us at the Law Day luncheon. In January 1979, with Governor Ray Blanton’s term coming to a close, the State's Pardon Board began to issue pardons that appeared to be purely political or the subject of bribery. This appearance of, and as it turned out actual, impropriety caused an outcry from both political parties. Leaders in the legislature hunted for a way to stop the carnage, and found it in the Tennessee Constitution. It was decided to swear in Governor-elect Alexander three days before the traditional inauguration day. Lieutenant Governor John Wilder later referred to Blanton's early removal as "impeachment Tennessee-style.” Lest you think that was the end of the story, after his ignominious exit from the governorship Blanton was investigated by the Federal Bureau of Investigation and other law-enforcement agencies, and while he never was charged in the pardons matter he was indicted and convicted of selling liquor licenses. At the Law Day luncheon Senator Alexander will give us the inside story of the “impeachment” of Ray Blanton. So how does this episode tie in to the Law Day theme this year? It’s simple – our constitutions, laws and system of government, including the courts, resulted in a just conclusion to this sordid incident in Tennessee history. If it weren’t for the Tennessee Constitution and the rule of law it represents, who knows how many more store-bought pardons may have issued in the remaining three days? And the courts themselves ultimately gave Ray Blanton his just desserts. Courts today, however, are under increasing pressures which, if unchecked, may well adversely impact our entire system of justice. In both the state and federal judicial systems caseloads are increasing dramatically. Budget cuts are reducing staff. Criminal trials are being delayed and there are growing backlogs of civil cases. On the federal level judges’ salaries are not even keeping up with inflation. Good judges are leaving the bench because of financial considerations; their salaries do not match what they are able to command in the public sector and are substantially lower than those of many other less significant federal employees. For various reasons new appointments to the bench are not keeping up with the losses.
2012 NBA BOARD OF DIRECTORS
On top of this are the actions of some to strip the courts of their power and authority. Some have advocated ignoring rulings they don’t like. Others have called for the abolition of so-called “rogue” courts. How many times have we heard the term “activist judges”? Our Law Day theme “No Courts, No Justice, No Freedom” reminds us of the consequences of taking for granted judicial independence and the status of our courts’ role as a co-equal branch of government.
John D. Kitch, President Tom Sherrard, President-Elect Hon. Randy Kennedy, First Vice President Hon. Marietta Shipley, Second Vice President Rebekah Shulman Secretary M. Bernadette Welch, Treasurer Trace Blankenship, Assistant Treasurer Gareth Aden, General Counsel Rebecca C. Blair Robert E. Boston C. Dewey Branstetter, Jr. C. Dawn Deaner Charles K. Grant Barbara D. Holmes Michele M. Johnson Edward D. Lanquist, Jr. John C. McLemore Jeffrey Mobley Patricia Head Moskal Maria M. Salas John R. Tarpley Overton Thompson, III Mandy Haynes Young
On the occasion of The Legal Aid Society of New York’s 75th anniversary celebration on February 16, 1951, Learned Hand, Chief Judge of the United States Court of Appeals for the Second Circuit, made a statement that we lawyers all must take to heart: "If we are to keep our democracy, there must be one commandment: Thou Shalt Not Ration Justice." Let us change the Law Day theme to “Robust Courts, Robust Justice, Robust Freedom” by working every day to preserve the importance, integrity, and independence of our courts. n (Endnotes) 1 Please note that this is forty five minutes earlier than previous Law Day celebrations in order to accommodate our speaker’s schedule; please remember to come early.
Got an Idea for an NBJ Article? We want to hear about the topics and issues readers think should be covered in the magazine. Send it to nikki.gray@nashvillebar.org
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Nashville Bar Journal - March 2012 3
communiqué
NBA NEWS n COMMITTEE INFORMATION n SPECIAL EVENTS n NBA NEWS n COMMITTEE IN
2012 NBA Golf Tournament Thursday, May 10, 2012 Nashville Golf & Athletic Club in Brentwood, TN This year we will be playing at the private NGAC golf course, featuring a breathtaking panorama of the beautiful countryside and hills of Tennessee, representing a lovely series of opportunities for today's golfers. Contact Traci Hollandsworth at traci. hollandsworth@nashvillebar.org with any questions.
Law Day Please join us for our annual Law Day Luncheon on April 30, 2012 at the Downtown Renaissance Hotel. Senator Lamar Alexander will speak on the topic " No Courts, No Justice, No Freedom" Registration begins at 10:45 a.m. and the lunch will run from 11:15 a.m. - 12:15 p.m.. Register on page 20 or online at www.nashvillebar.org
Mock Trial
Registration on page 16 or online www.nashvillebar.org
2012 Napier-Looby Bar Association Officers The Napier-Looby Bar Association ("NLBA") has announced their officers for the 2012 year. NLBA is a bar association dedicated to the advancement and development of black attorneys as well as attorneys interested in issues affecting the black community. More information may be found at www.napierlooby.com/ President: David Green President-Elect: John Manson Recording Secretary: Lora Manson Corresponding Secretary: Dannelle Walker Treasurer: Danielle Nellis Historian: Robin Kimbrough Board of Directors: Brian Winfrey Andrea Perry William Stover L. Nicole James – Past President Nominations Committee: L. Nicole James Andrea Perry Napier-Looby Bar Foundation Board: Rita Roberts-Turner, President David Green, President-Elect William Stover, Immediate Past President Susan Jones, Board Member at Large Patrick Norton, Treasurer Kinika Young, Secretary 4 Nashville Bar Journal - March 2012
Montgomery Bell Academy’s Red Team 2012 District Champion
The 32nd Annual Davidson County Mock Trial Competition, sponsored by the NBA Young Lawyers Division, was held on February 17-18, 2012. Sixteen teams from eleven Davidson County high schools competed in the two-day competition at the historic Metro Courthouse. The event included more than 200 local attorneys who volunteered their time and expertise to judge and score the competition.
The YLD would like to offer its sincere thanks to all the volunteers who served as judges, scorers and bailiffs during the five rounds. Co-chairs Matthew C. Cox and Rebecca M. Barnett would also like to specially thank Peter Robison, Nanette Green, Traci Hollandsworth, and Tina Ashford for their time and assistance during the competition. The 2012 District Champion is Montgomery Bell Academy’s Red Team. Harpeth Hall’s Silver Team took second place. Both teams will be moving on to the state competition. Other winners include: Third Place: Hume Fogg White Team Fourth Place: MBA Silver Team Fifth Place: St. Cecilia Red Team Best Rookie Team: McGavock High School Best Prosecution Attorney: Natalie Perry (Goodpasture) Best Defense Attorney: Will Stewart (Hume Fogg – Blue) Best Prosecution Witness: McKay Proctor (MBA – Red) Best Defense Witness: Michael Taylor (Hume Fogg – White)
-Golden OldiesGayle Malone, Jr of Walker, Tipps & Malone PLC correctly identified the individuals in the February 2012 Golden Oldies photo. Pictured are: John Kelley, Joe Haynes, Richard Bird and Tom Peebles.
NFORMATION n SPECIAL EVENTS n NBA NEWS n COMMITTEE INFORMATION n SPECIAL EVENTS n NBA NEWS n COMMITTEE INFORMATION n
Nominees for Liberty Bell Awards Sought Nominations are being sought for the Liberty Bell Award that will be presented during the NBA’s annual Law Day Luncheon during Law Week. This award is given to that person or group (not necessarily lawyers or law related groups) who has promoted better understanding of the rule of law, encouraged greater respect for law and the courts, stimulated a sense of civic responsibility, or contributed to good government. Nominations for the Liberty Bell Award should be directed to Traci Hollandsworth. She may be reached at 242-9272, or email her at traci.hollandsworth@nashvillebar.org.
Past LIBERTY BELL AWARD WINNERS: 1986 Dave Rutherford Bill Willis M. Lee Smith 1987 Connie F. Wright, Teacher James F. Blumstein, Vanderbilt Law School
1995 Mary Ann Hea Kroger Company
2004 John Seigenthaler Nashville Conflict Resolution Center
1997 Bradley MacLean Sabin R. Thompson N. Sue Van Sant Palmer Marlinda R. Bruno
1989 Sharon DeBoer Kirk Loggins
1991 Lt. Col. Jeff Henry Court Preparation Group
2003 Andrea Conte
1996 Nashville Banner
1988 CASA
1990 Wade Cowan NBA YLD (presented at Annual Banquet)
1994 Marshall Albritton
2005 Judge George Paine Renewal House 2006 Drake Holliday (posthumously)
1998 Adinah Robertson
2007 Governor’s Books from Birth Foundation
1999 Tennessee Justice Center L.A.W. Early Truancy Program
2008 Judge Walter Kurtz
1992 Judith Cannizzaro, Metro Social Studies Coordinator Exchange Club of Nashville
2000 Senator Douglas Henry NBA Young Lawyers Division 2001 Richard Dinkins Mary Walker
1993 George Rooker
2002 Wally Dietz
2009 Ross Alderman (posthumously) 2010 Joe Johnston 2011 Judge William Joseph Haynes, Jr.
No Courts, No Justice, No Freedom Speaker: Senator Lamar Alexander Registration on page 20 ----------------------------------------------------
Nominations are now being sought for the Jack Norman Award that will be presented during the Nashville Bar Association’s Law Day Luncheon during Law Week. The Award is given to a criminal law practitioner, including defense attorneys and judges of courts with criminal jurisdiction, who practice before or serve as judges of courts exercising criminal jurisdiction located in the Metropolitan Nashville area. The award may be given posthumously. The Norman Award must be given to an attorney whose primary practice is in or service pertains to criminal law, demonstrates respect for the rights of all individuals in the criminal justice system, exhibits the trial advocacy skills or judicial skills necessary to the pursuit of justice, demonstrates an abiding respect for the law and legal profession, maintains highest standards of professional integrity and ethical conduct, contributes to the improvement of the legal profession and criminal justice system, including but not limited to the provision of uncompensated or undercompensated representation of the accused. Nominations for the Norman Award should be directed to Traci Hollandsworth. She may be reached at 242-9272, or email her at traci.hollandsworth@ nashvillebar.org.
Past NORMAN AWARD WINNERS: 1996 Jack Norman Sr., (posthumously) 1997 not presented
UPCOMING EVENTS: Lawyer to Lawyer Reception NBA Offices - 150 4th Ave. Suite 105 All members are invited to attend March 27 - 4:30 - 6:00 p.m. --------------------------------------------------Sister Cities Visit, Caen Delegation April 2012 -----------------------------------------------Law Day Luncheon @ Renaissance Hotel April 30, 2012 - 11:15 a.m. - 12:15 p.m.
Nominations Sought for Norman Award
NBA Golf Tournament Nashville Golf & Athletic Club in Brentwood, TN Thursday, May 10, 2012 Registration on page 16
1998 (Presented at Annual Banquet) Judge Tom Shriver
2003 not presented 2004 William M. Leech, Jr. 2005 Judge Randall Wyatt 2006 Hall Hardin 2007 not presented
1999 (Presented at Annual Banquet) Seth Walker John Hooker Sr.
(posthumously)
2000 James F. Neal
2009 Ross Alderman
2001 Joe P. Binkley Sr. 2002 not presented
1996 Charlie Ray
(posthumously)
2010 Ed Yarbrough 2011
Richard McGee
Nashville Bar Journal - March 2012 5
FEATURE
ELECTRONIC CONTRACTING: A Brief Guide to E-Sign and the UETA by:
Patrick Norton
In the past, these have been pretty simple issues. If you wanted to execute a contract, a party would sign a few hard copies of the contract and send it to the other party who would sign the document and send a few copies back, or all parties could get together to sign copies simultaneously. If you needed to give notice under a document, then all you would need to do is check the notice provision in the document and mail the notice to the appropriate location within the specified time in the agreement. However as we continue our reliance on electronic mail and documentation systems, many clients and lawyers will be looking to the law for validation of electronic records of agreement or notices that are sent by email. In my short time as a corporate attorney, I have seen this issue come up on more than one occasion and wanted to share with the Nashville Bar some of the practical issues that I have encountered in advising clients. This article will focus mainly on how to form a contract through electronic documentation systems (e.g., email) and suggest some best practices for formation and giving notice electronically. Of course, contract law has been formed and shaped by legal experiences over the course of centuries; therefore, it will always be safest for a client to rely on tried and true methods of forming a contract or sending notice (especially when the formation of the agreement or timeliness of the notice carry significant consequences). However, when those methods are not available or practical in a situation, hopefully this article will assist in your analysis.
6 Nashville Bar Journal - March 2012
SCOPE OF THE ACTS: First, it is important to note that the federal Electronic Signatures in Global and National Commerce Act (E-SIGN), Tennessee’s Uniform Electronic Transactions Act (TNUETA), and the Uniform Electronic Transactions Act (UETA) (E-SIGN, TNUETA, and the UETA are collectively referred to as "the Acts.”) do not validate electronic contract formation for all agreements. Transactions governed by the Uniform Commercial Code, with the exception of certain parts of Article 11 and all of Articles 2 and 2A, are not covered by those Acts.2 In addition, the execution of wills, codicils, and testamentary trusts are not covered by the Acts.3 To the extent that documents regarding family law are part of a transaction in or affecting interstate or foreign commerce, these documents are not covered by ESIGN.4 Under E-SIGN, there are other exceptions regarding court documents, hazardous material transportation documents, and notices regarding utilities, debt collection, and product recalls.5 PREEMPTION: Per section 102 of E-SIGN,6 any state adopting the UETA can “modify, limit, or supersede” section 101 of E-SIGN.7 Tennessee has superseded section 101 of E-SIGN, except for subsections (c),(d), and (e).8 Those excluded sections deal with consumer disclosures, contract retention and records, and accuracy and ability to retain records. The TNUETA also states that none of the notices described section 103(b) of E-SIGN can be delivered electronically in Tennessee.9 However, it is important to note that every state’s UETA will be different, and anyone relying on the UETA will need to ensure compliance with that specific jurisdiction.10
CONTRACT EXECUTION ANALYSIS CHECKLIST: It is worth noting that these requirements do not replace the traditional statutory and common law requirements for contract formation. Those requirements must be satisfied. The Acts allow for execution of an agreement by electronic means or through an electronic record of a signature but certainly do not replace other contract formation issues. 1. Ensure that the parties have agreed to conduct transactions by electronic means. (Tenn. Code Ann. § 47-10105(b))11 According to the statutes, “[w]hether the parties agree to conduct transactions by electronic means is determined by the context and surrounding circumstances, including the parties conduct.”12 Given this, I would suggest that contracts that are formed by electronic means do the following: (1) include “counterparts” language in the contract such as, “[t]his Agreement may be executed in any number of counterparts, each of which may be executed by only one of the parties hereto, and each of which shall be enforceable against the party actually executing such counterpart, and all of which shall together constitute one instrument”; and (2) include language stating that contract formation can be accomplished under the TNUETA such as, “[t]his Agreement may be formed through the use of electronic signatures and records, pursuant to the Uniform Electronic Transactions Act, as amended, codified in Tenn. Code Ann. § 47-10-101, et seq.”
2. Ensure that the electronic documentation system is capable of keeping accurate and reproducible records of the executed agreement. (15 U.S.C.S. § 7001(d) and Tenn. Code Ann. § 4710-112(a))13 While this provision applies only if another law requires document retention, it is clearly best to have an electronic documentation system that is capable of keeping accurate and reproducible records of the executed agreement. This will assist in authenticating the document in a proceeding regarding contract issues and satisfying other contract formalities. In addition, if the electronic documentation system collects electronic signatures (e.g., by checking a box or replying to an email), as opposed to keeping an electronic record of handwritten signatures, then follow up procedures should be installed in order to ensure that the person completing the electronic signature has the authority and intended to execute the agreement. Otherwise, the electronic signature could be invalidated.14 This could be accomplished by a documented confirmation phone call to the proper contracting party. 3. Ensure that the electronic documentation system is capable of tracking when the documents are received. If contract issues arise regarding the time of formation, then it will be helpful to have an easily producible record of when the contract is received from an executing party. The word “received” is defined in the Acts, but the definition is very technical and somewhat cumbersome.15 However, the Acts allow the parties to define when a document is “received.”16 Therefore, it would be better to clarify the definition of “received” in terms
of when the electronic documentation system timestamps the agreement or in some other manner that is consistent with how the system records when documents are received. 4. Ensure that the electronic documentation system is capable of accurately showing notary signatures and can indicate which agreement has been notarized. (15 U.S.C.S § 7001(g) (2011) and Tenn. Code Ann. § 47-10111(2011))17 The Acts state that notarization formalities need to be attached or retained in the documentation system so that the formalities are “logically associated” with the signature or record.18 If notarization is necessary for a document, then you’ll want to ensure that the notarized document meets these qualifications. SENDING AND RECEIVING NOTIFICATIONS: The TNUETA provides definitions of sent and received that, as mentioned above, are technical and cumbersome.19 However, these definitions can be modified by the contract.20 In order to clarify the matter, I would suggest that the notice provision of the contract contain an email address where notifications under the agreement should be sent. This should help eliminate questions of whether the notice was sent to the right place. If there is a concern about whether one email would suffice or of employee turnover, if a person-specific email address is used, the parties may want to consider setting up an institutional email address for the contract or providing a simple modification process for that provision. Then, I would suggest the parties review the documentation system that would be used and Continued on Page 15
Nashville Bar Journal - March 2012 7
FEATURE
Reviewing E-Discovery Model Orders as Administrative Order No. 174 Turns Five by:
W. Russell Taber, III
Five years ago, the Middle District of Tennessee issued an administrative order on electronic discovery on the heels of the 2006 e-discovery amendments to the Federal Rules of Civil Procedure. That order, known as Administrative Order No. 174, fills gaps left by the Federal Rules with a series of default standards that apply unless the parties reach an alternate agreement. Since then, the volume of electronically stored information (ESI) in the world has increased substantially,1 the expense of e-discovery has continued to rise,2 and the law and technology of e-discovery keeps evolving. Perhaps now more than ever, e-discovery challenges the aim of securing “the just, speedy, and inexpensive determination of every action” embodied in Rule 1 of the Federal Rules of Civil Procedure. In response to these issues, model e-discovery orders and local default standards have proliferated in recent years with provisions that vary considerably. As Administrative Order No. 174 turns five, it seems appropriate to review our order in light of some notable model orders in other jurisdictions – and not just because the phrase “Administrative Order No. 174 need not apply to this case” records over one hundred hits on Google. This article attempts such a review and outlines twelve topics that could be considered as part of an e-discovery model order or agreement.
8 Nashville Bar Journal - March 2012
Cooperation. The Middle District of Tennessee was an early leader in encouraging parties to cooperate on e-discovery issues.3 A year after Administrative Order No. 174 was entered, The Sedona Conference, a leading e-discovery think tank, issued its “Cooperation Proclamation” to promote cooperation between counsel on discovery of ESI.4 Since then, many court opinions and model e-discovery orders have encouraged parties to cooperate as a means to reduce e-discovery costs.5 The degree to which cooperation is consistent with zealous advocacy or is practical in a given matter, however, has been subject to some debate. Proportionality. The principle of proportionality is not directly referenced in Administrative Order No. 174 but has been a major emphasis in e-discovery in recent years.6 That principle generally provides that the cost of e-discovery should be proportionate to the amount in controversy, the sought ESI’s relevance and other factors. The Seventh Circuit Electronic Discovery Pilot Program instructs that “[t]he proportionality standard set forth in Fed. R. Civ. P. 26(b)(2)(C) should be applied in each case when formulating a discovery plan.”7 The Southern District of New York’s model e-discovery order for complex civil cases [hereinafter the “S.D.N.Y. Model Order”] applies this principle in requiring parties to provide a written estimate of the costs of production and the amount in controversy.8
Disclosures. Like some other model orders, Administrative Order No. 174 provides for fairly extensive disclosures by parties at or before their Rule 26(f) “meet and confer” conference, such as identifying the custodians and sources (e.g., the computer hard drive of employee Jane Doe) likely to have or contain relevant ESI and notifying opposing counsel of any anticipated e-discovery problems.9 These early disclosure obligations can help ensure preservation of relevant ESI and narrow the focus of discovery to only those sources of ESI likely to contain relevant information. Competence. Administrative Order No. 174 provides for parties to designate an “e-discovery coordinator” to be knowledgeable about and coordinate various e-discovery issues and a “retention coordinator” to assist in preservation of relevant ESI.10 To somewhat similar effect, the S.D.N.Y. Model Order requires parties to certify their competence in e-discovery or that they have involved someone competent to address these issues on their behalf.11 The Seventh Circuit Electronic Discovery Pilot Program also provides for counsel and parties to “become familiar with the fundamentals of discovery of ESI.”12 It would indeed be difficult, if not impossible, to implement a defensible and cost-effective e-discovery plan without competent personnel, especially in cases involving e-discovery issues of any complexity. Preservation. Administrative Order No. 174 offers instructions on how to implement a litigation hold, i.e., taking affirmative steps to preserve relevant ESI.13 Whether or not parties must commit the litigation hold to writing in every case has been subject to some debate, and the S.D.N.Y. Model Order directs parties to discuss whether or not to disclose “the dates, contents, and/or recipients of ‘litigation hold’ communications.”14
Beyond the issue of litigation hold notices, some jurisdictions presume that certain enumerated categories of ESI need not be preserved because of the burden and expense of doing so (e.g., “deleted” data, “data in metadata fields that are frequently updated automatically, such as last opened dates”).15 There has also been much discussion on whether to amend the Federal Rules of Civil Procedure to provide specific rules regarding preservation of ESI, including when the duty to preserve is triggered and the scope of materials to preserve.16 Timing of e-discovery. Our default standard envisions sequenced discovery whereby parties first search and produce accessible ESI (e.g., emails residing in a person’s inbox) and reserve until later any search and production of ESI that is not reasonably accessible because of undue burden or cost (e.g., backup tapes).17 The District of Delaware’s model e-discovery order (the “Delaware Model Order”) envisions that parties in patent litigation engage in tiered discovery, whereby certain categories of documents are the subject of initial productions with any “follow-up discovery” occurring later.18 The Southern District of New York’s Pilot Project Regarding Case Management Techniques for Complex Cases (to which the S.D.N.Y. Model Order is attached as an exhibit) provides for a stay of discovery on matters subject to a motion to dismiss pursuant to Rule 12(b)(6) or 12(c) while the motion is pending, unless the court orders otherwise.19 Search methodology. Under Administrative Order No. 174, parties are to disclose and seek agreement on the electronic search methodology, if any, they intend to employ.20 The order contemplates keyword searching as an appropriate search methodology, as do a number of other e-discovery model orders and default standards.21 As a way to reduce
e-discovery costs, some model orders outside Tennessee limit the number of search terms a requesting party may seek.22 Some, however, have noted the potential inaccuracy of keyword searching, particularly when placing arbitrary limits on the number of search terms employed.23 Much recent commentary has discussed using an electronic search tool called “predictive coding” as a possible way to improve accuracy and save costs as compared to manual documentby-document review of the ESI returned by keyword searching.24 Predictive coding has been defined as “a process in which review decisions from examining sample records are propagated or extended by the use of various technologies to records which have not been individually examined.”25 To this point, the S.D.N.Y. Model Order references “machine learning, or other advanced analytical tools” as approaches to electronic search methodology that parties may consider.26 Certainly nothing in Administrative Order No. 174 prevents parties from using such advanced analytical tools in the Middle District of Tennessee, but an express reference to that type of technology in a model order may provide parties and counsel additional comfort as to the defensibility of using the technology.27 Collection. Administrative Order No. 174 does not directly address collection of ESI – such as when, how and by whom ESI is to be collected. For instance, some have cautioned against “self-collection” of ESI by custodians out of concern that a custodian may be tempted to delete incriminating evidence,28 while, on the other hand, hiring an outside vendor to collect ESI increases e-discovery expenses and may not be necessary in a given case. Other issues associated with collection include what, if any, metadata29 fields should be collected and when the collection Continued on Page 18
Nashville Bar Journal - March 2012 9
FEATURE
N L R
fb The Employer's Paradox: Drafting and Applying Social Media Policies to Pass NLRB Muster by:
Ben Bodzy
On January 24, 2012, the Acting General Counsel of the National Labor Relations Board ("NLRB") released a second round of guidance to clarify the NLRB's enforcement efforts in cases involving social media.1 The Acting General Counsel's Memorandum provides helpful guidance in response to four common questions: (1) when are social media policies unlawfully overbroad?; (2) when are employee comments on social media protected?; (3) will a savings clause cure the overbreadth of a social media policy?; and (4) may an employer enforce an overbroad policy? While the NLRB's guidance does not provide bright line rules in response to these questions, the guidance is instructive for employers when they draft and enforce social media policies. When Are Social Media Policies Unlawfully Overbroad? An employer policy violates the National Labor Relations Act when it prohibits employees from engaging in protected concerted activities and/or union activities protected by the NLRA. An employer's policy also violates the NLRA where it is so ambiguous that an employee could reasonably construe it as prohibiting activity protected by the NLRA. While the following examples from the General Counsel's report do not provide a bright line test for assessing if a policy is overbroad, the following examples from the report provide a rough sense of where the NLRB draws the line.
→
Prohibition on “disrespectful conduct” and “inappropriate conversations.”
→
Prohibiting "employees from using social media to engage in unprofessional communication that could negatively impact the Employer's reputation or interfere with the Employer's mission or unprofessional/inappropriate communication regarding members of the Employer's community."
→
Prohibition on "disclosing or communicating information of a confidential, sensitive, or non-public information concerning the company on or through company property to anyone outside the company without prior approval of senior management or the law department."
→
Prohibition on "the use of the company's name or service marks outside the course of business without prior approval of the law department."
→
Requirement that "communications be made in an honest, professional, and appropriate manner, without defamatory or inflammatory comments regarding the employer and its subsidiaries, and their shareholders, officers, employees, customers, suppliers, contractors, and patients."
→
Prohibition on "defamatory, or harassing" web entries about specific employees, work environment, or work-related issues on social media sites.
Unlawfully Overbroad Policies →
→
Prohibition on “[m]aking disparaging comments about the company through any media, including online blogs, other electronic media or through the media.” Requirement that discussions [must be] conducted in an “appropriate” manner.
10 Nashville Bar Journal - March 2012
Lawful Policies →
Prohibition on comments "about co-workers or supervisors or the Employer that are vulgar, obscene, threatening, intimidating, harassing, or a violation of the Employer's workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic."
→
Prohibition on "using or disclosing confidential and/or proprietary information, including personal health information about customers or patients."
→
Prohibition from "discussing in any form of social media embargoed information, such as launch and release dates and pending reorganizations."
→
Counsel's report did not provide bright line rules, but the examples in the report are instructive on the distinction between protected comments and unprotected comments. Protected Comments →
Facebook comments criticizing employer for firing employees who asked employer for help.
→
Facebook comments criticizing negative attitude and supervision of Operations Manager, criticizing employer's disciplinary decisions, and complaining about having to work on Saturdays.
Lesson Learned
When Are Employees' Comments on Social Media Protected? The General Counsel's report also provides useful guidance on what online posts by employees are protected. As a general proposition employees' comments are protected when they are made with or on behalf of other employees or where they discuss or seek to induce group action by employees. Comments are protected where they "foment additional discussion among employees about workplace problems." Comments are not protected when they are purely a personal gripe. Again, the General
Employee who transferred to a less desirable position commented on Facebook, using expletives that the employer messed up and that she was done being a good employee. A number of the employee's Facebook friends who worked for the same employer chimed in agreeing with the original post, commenting on the employer's pay practices, and suggesting a class action lawsuit against the employer.
→
Requiring employees to comply with SEC and FTC regulations in online posts.
As a general proposition, employer policies designed to ensure compliance with an employer's legal obligations are legal under the NLRA. Employer policies designed to police appropriate online conduct are overbroad.
looking the other way in not addressing the conduct of the "dishonest employee." Since this was just a gripe about a coworker that had no direct effect on the terms and conditions of the employees conduct, the comments were unprotected.
→
Criticism of employer's "management style," and claim that it amounted to "bullying."
Unprotected Comments →
→
After argument with supervisor, employee posted on Facebook an unspecified expletive followed by the name of employer's stores. She followed up 30 minutes later with a post that said that the employer did not appreciate its employees. Comment by bartender that co-worker was "screwing over" customers by passing off cheap drinks as premium liquor to customers. Employee further commented that management was
→
Angry profane rant by employee against co-workers and employer that referred to her personal experiences of being ostracized by co-workers.
→
Facebook post that employee was annoyed by a co-worker's habit of "sucking his teeth" and she would "beat him with a ventilator" if he did not stop this annoying habit.
→
Trucker's complaint that he could not reach on-call dispatcher was unprotected personal gripe, where the comment was not directed to co-workers and did not elicit any response from co-workers.
→
Employee complained that his supervisor did not care about his health because he had threatened an attendance point if employee left early due to illness. Employees comments did not express group concern or elicit comments from co-workers.
Lesson Learned As a general proposition, employees are engaged in protected concerted activity when they are expressing a concern regarding terms and conditions of employment (including actions of supervisors) on behalf of co-workers, in concert with co-workers, or on a matter of common concern to co-workers. Employees are not engaged in protected concerted activity when they are expressing a purely Continued on Page 17
Nashville Bar Journal - March 2012 11
BILL AND PHIL’S GADGET OF THE MONTH CLUB By: Bill Ramsey of Neal & Harwell, PLC and Phillip Hampton of LogicForce Consulting
MAKE YOUR SMART PHONE SMARTER Like all gadget addicts, we love our smart phones. We have several each. Consequently, we are always in a never-ending battle to see who can make his smart phone “smarter.” Here are a few apps and other stuff that may help you “smartify” your smart phone. 1. Dictamus – www.jotomi.com This app only runs on iPhone, iPad or iPod touch (second generation or later). This app turns one of those devices into a professional digital dictation machine. Really. You can overwrite and insert dictation into recordings at any point in the recording. It also includes voice activated recording. This is not a toy or a play app. Dictations are saved in WAV format, so the resulting recording is compatible with most transcription machines, audio player device or application. It is not cheap ($14.99), but it is worth it. Hopefully, Dictamus will develop an application for Android operating systems soon. 2. WunderRadio – www.wunderradio.com This app is available for iPhone, Blackberry, Android, iPad, Android Tablets, etc. With this app, you can listen to almost any radio station that streams on the Internet, including virtually all our local radio stations. It also includes CNN and other television stations (audio only). If you are looking for a radio app to make your Smart phone smarter, this is a good one to choose. (PocketTunes for the iPhone, iPad and iPod is also good.) When you are away from home and want to listen to local radio, find local radio news, etc., WunderRadio is very, very handy. 3. Evernote – www.evernote.com This is perhaps our favorite app of any genre. It is free! It is available for almost any platform. It runs on Android, Blackberry, Windows computers, Windows Phone 7, Web OS, Mac OS, iPhones, iPads, iPods and the list goes on. Evernote is an app that allows you to keep notes about everything and take notes anywhere. You can store information of all types (pictures, videos, voice notes, typed notes, scanned documents, web pages, and so on), and access those notes from anywhere — on almost any device. And, all your notes will be synced and available on every device or computer that you use. For example, when we are traveling with the “Bill and Phil Show,” we keep all our itineraries, plane reservations, and travel plans in Evernote so we can pull them up on our iPad, iPhone, or Android phone or our computer anytime we want. Again, Evernote is free. 4. Line2 and Google Voice – www.line2.com and www.google.com/voice Both of these apps/services allow you to (1) either use an existing number or (2) get a new local or toll free number as your “second phone” to use via the Internet. With these apps you get free voicemail, free text messaging, cheap international calling, and a web interface to manage your emails, settings, and 12 Nashville Bar Journal - March 2012
calls, etc. All calls are made over the Internet. Google Voice is completely free, but there is a subscription fee if you use Line2 on your cellular phone as your second line. Both services have voice mail transcription; both services allow you to route all phone calls to one telephone number; both allow you to block callers/screen callers; and both services provide a mobile app for use on your cell phone. They also allow you to set up very cheap conference calls. We really prefer Google Voice but both are very powerful. Line2 has a few features that Google Voice does not, and vice versa. 5. Square Up – htps://squareup.com We think this app is revolutionary. It allows you to accept credit card payments anywhere, anytime — on your iPhone, iPad or Android phone. Square Up works as follows: You sign up to get the app on your phone. Square Up sends you (for free) a small connector to insert in your earphone jack on your Smartphone. Then you are ready. You can accept credit cards or debit cards on your Android phone or iPhone. The cost is only 2.75% per swipe for VISA, American Express, MasterCard and Discover. There is no contract, no monthly fee and no merchant account to set up. The funds are deposited directly to your bank account the next day. Anybody can accept credit card payments from virtually anywhere. There are other bells and whistles such as built-in analytics, sales tracking, and the ability to send electric receipts via email. If you have a small business or you are having a yard sale, or have any other transaction where you need to accept a credit card, Square Up is for you. We love it and use it. Give it a try. 6. Expensify – www.expensify.com Expensify is an app available for iPhone, iPads, iPod touches and Android phones and tablets. If you have to prepare expense reports, Expensify is for you. You can import your expenses directly from a credit card or bank account. You then tag the various charges that need to be placed into an expense report that you create – right in Expensify. In most instances, you can get “electronic receipts” to attach to your report. You can even use a map to enter the start and ending location to record your automobile travels and easily add the mileage charges to your expense report. The individual version of Expensify is free. 7. BreathalEyes – www.breathaleyes.com This is an app available only for Apple devices. Phillip doesn’t need this app anyway. Bill might. The app was developed by young men who live right here in Nashville, Tennessee: Clay Bailey, Robert Andrews, Russell Ries and others. Soon the app will be available for Android as well. Basically, you use the camera on an iPhone to analyze your eye movements using the horizontal gaze nystagmus (HGN) or involuntary eye movement. Although the HGN test has been discredited, people under the influence of alcohol do tend to Continued on Page 16
100% CLUB
The Nashville Bar Association 100% Club is a special category of membership that demonstrates a commitment to the legal profession and our community from legal organizations with more than three attorneys that enroll 100% of their Nashville attorneys as members of the NBA. Contact Vicki Shoulders at 615-242-9272 or vicki. shoulders@nashvillebar.org. Firms, law departments and legal organizations that join this Bar year will be recognized as such throughout the year.
CONGRATULATIONS & THANKS TO THE FOLLOWING 100% CLUB MEMBERS:
Waller Lansden Dortch & Davis, LLP (165) Bradley Arant Boult Cummings LLP (103) Baker, Donelson, Bearman, Caldwell & Berkowitz, PC (85) Miller & Martin PLLC (49) Stites & Harbison, PLLC (47) Bone McAllester Norton PLLC (31) Neal & Harwell, PLC (30) Sherrard & Roe, PLC (30) Harwell Howard Hyne Gabbert & Manner, P.C. (27) Lewis, King, Krieg & Waldrop , P.C. (27) Gullett, Sanford, Robinson & Martin, PLLC (26) Manier & Herod, P.C. (26) Dickinson Wright PLLC (24) Leitner, Williams, Dooley & Napolitan, PLLC (21) Ortale, Kelley, Herbert & Crawford (20) Riley Warnock & Jacobson, PLC (19) Cornelius & Collins, LLP (17) Brewer, Krause, Brooks, Chastain and Burrow, PLLC (16) Waddey & Patterson, P.C. (15) Walker, Tipps & Malone, PLC (15) Branstetter, Stranch & Jennings, PLLC (14) Ogletree, Deakins, Nash, Smoak & Stewart (14) Tune, Entrekin & White, P.C. (14) Burr & Forman LLP (13) Hughes & Coleman (13) Smith Cashion & Orr, PLC (13) Frost Brown Todd LLC (12) Parker, Lawrence, Cantrell & Smith (12) Kay, Griffin, Enkema & Colbert, PLLC (11) Watkins & McNeilly, PLLC (11) Corrections Corporation of America (10) Hall, Booth, Smith & Slover, P.C. (10) Schulman, LeRoy & Bennett, P.C. (10) Spicer Rudstrom, PLLC (10) Taylor, Pigue, Marchetti & Mink PLLC (10) DHPM, PC (9) Levine, Orr & Geracioti (9) White & Reasor, PLC (9) Farris Mathews Bobango, PLC (8) Jones Hawkins & Farmer, PLC (8) Buffaloe & Associates, PLC (7) Dodson Parker Behm & Capparella, P.C. (7)
Evans, Jones & Reynolds, P.C. (7) Howard & Mobley , PLLC (7) Lassiter, Tidwell & Davis, PLLC (7) MGLAW, PLLC (7) Morgan & Akins, PLLC (7) American General Life and Accident Ins. Co. (6) Hollins, Raybin & Weissman, P.C. (6) Holton Blackstone & Mayberry, P.C. (6) Keller, Turner, Ruth, Andrews, Ghanem & Heller, PLLC (6) Leader, Bulso & Nolan, PLC (6) Loeb & Loeb, LLP (6) Reno & Cavanaugh PLLC (6) Barrett Johnston, LLC (5) Chaffin, Burnsed & Blackburn, PLLC (5) Haynes, Freeman & Bracey, PLC (5) Kinnard, Clayton & Beveridge (5) Littler Mendelson, P.C. (5) Rocky McElhaney Law Firm, PC (5) Shackelford, Zumwalt, Hayes, LLP (5) Trauger & Tuke (5) Dobbins, Venick, Kuhn & Byassee, PLLC (4) Garfinkle, McLemore & Young, PLLC (4) Hale & Hale, PLC (4) Law Offices of John Day, P.C. (4) Lieff, Cabraser, Heimann & Bernstein (4) Moses Townsend & Russ, PLLC (4) Mudter & Patterson (4) Rutherford & DeMarco (4) Thrailkill, Harris, Wood & Boswell, PLC (4) Video Gaming Technologies, Inc. (4) Affinion Benefits Group, LLC (3) Baker, Campbell & Parsons (3) Barry Gammons, Attorney at Law (3) Cheadle Law (3) Cheatham, Palermo & Garrett (3) Glasgow & Veazey (3) Grissim & Hodges (3) Hix & Gray, PLC (3) IASIS Healthcare LLC (3) Larry R. Williams, PLLC (3) Marlowe Law Offices, PLLC (3) May & Ryan, PLC (3) McKenzie Laird, PLLC (3) Moseley & Moseley, Attorneys at Law (3) Nashville Electric Service (3) Puryear Law Group (3) Rogers, Kamm & Shea (3) Rothschild & Ausbrooks, PLLC (3) Sarah Cannon Research Institute (3) Smythe & Huff (3) Tennessee Justice Center (3) Weatherly, McNally & Dixon, PLC (3)
Nashville Bar Journal - March 2012 13
Profile
Judge Hamilton V. Gayden has presided over the First Circuit Court since 1978. He and his wife, Paulette, have three children and one grandson. He has published two novels and has one in the works.
Judge Hamilton V. Gayden by:
Bart Pickett
I recently had the pleasure of interviewing a man who has been a judge much longer than I have been alive, Judge Hamilton V. Gayden. Judge Gayden's judicial career spans almost four decades. He is a native Nashvillian who loves serving the community that has given him so much. Following his high school career at Storm King School (NY) and Battle Ground Academy in Franklin, Judge Gayden started at Vanderbilt on a basketball scholarship. After a year of college and basketball, he dropped out to join the Army reserve. He spent a total of six years in the reserve including six months of active duty. Judge Gayden went back to Vanderbilt after finishing active duty where he graduated with both an undergraduate ('61) and law degree ('64). Judge Gayden began his legal career at the Dearborn Law Firm. He next signed on for the first Metro Legal Department under Mayor Briley. Judge Gayden spent the next few years at other small firms and even in his own private practice before being appointed to the general sessions bench by Governor Winfield Dunn when he was just 32 years old. In 1978, Judge Gayden made his first of many runs for judge of the First Circuit Court. He has had some opposition along the way, including one run against
14 Nashville Bar Journal - March 2012
seven others, but he has always ended up victorious. Only four judges in the state have served the bench longer than Judge Gayden. Even as long as Judge Gayden has been in circuit court, he still reminisces about general sessions. To this day he misses general sessions and loves to sit in for general sessions judges whenever possible. "The big difference between circuit and general sessions is you have many more opportunities to help people out in their distress in general sessions than you do in circuit court," he said. Judge Gayden won't be leaving First Circuit any time soon either for a higher bench or retirement. He plans on being on the ballot again in 2014. One distinction Judge Gayden holds is being the judge in charge of mental health committals in all of Middle Tennessee (other than MTHI) which he has been doing since 1982. He also goes out to the surrounding prisons and holds mental health hearings. When asked what advice he could provide when a lawyer has a case in the First Circuit Court, Judge Gayden is quick to suggest that lawyers conduct themselves with civility. His pet peeve is lawyers taking a "slash and burn" approach and misusing discovery as a tool to win cases. Animosity between lawyers is something Judge Gayden has seen jurors pick up on and he cautions against it.
ELECTRONIC CONTRACTING: A Brief Guide to E-Sign and the UETA Continued from page 7
Judge Gayden and his wife Paulette have been married for 26 years. Together, they have three children (two sons and a daughter) and one grandson. He beams with pride as he discusses all of their accomplishments – all three children have graduate degrees. During his spare time, you could find Judge Gayden walking, gardening, or writing. He has published two novels – A Circle Across in 1985, and Miscarriage of Justice in 2008. Judge Gayden jokes that it took him 23 years to finish the second one. Miscarriage of Justice has been so popular that his publisher asked Gayden to write another novel, which he began in 2009. The first manuscript has just been finished. Judge Gayden is also a big sports fan. He enjoys rooting for the local sports teams, professional and Vanderbilt. n Bart Pickett is an attorney with Hall, Booth, Smith & Slover, P.C., specializing in medical practice and insurance defense. He is a graduate of the University of Tennessee College of Law and former law clerk to the Honorable Thomas W. Brothers of the Sixth Circuit Court of Davidson County and the Honorable Joe P. Binkley, Jr. of the Fifth Circuit Court of Davidson County.
craft provisions that clarify issues regarding receiving or sending notifications. Furthermore, the contract should address concerns regarding notifications that end up in "junk folders" and "bouncing back." n Patrick Norton is an Associate at Adams and Reese, LLP, serving in the firm’s Transactions and Corporate Advisory Services Practice Group. (Endnotes) 1 Uniform Commercial Code §§ 1-107 and 1-206 are governed by the Acts. 15 U.S.C.S. § 7003(a) (2012); Tenn. Code Ann. § 47-10-103(b) (2011); UETA §3(b) (1999). 2
Id.
3
Id.
15 U.S.C.S. § 7003(a)(2) (2012). These documents may not be covered in other states. 4
5
15 U.S.C.S. § 7003(b) (2012).
6
15 U.S.C.S § 7002(a)(1) (2012).
7
Id.
8
Tenn. Code Ann. § 47-10-122 (2011).
9
Id.
For example, the states of Illinois, New York, and Washington have not adopted the UETA. However, there maybe statutes in those states addressing electronic contract formation. For a good resource regarding the UETA, including where other states have codified the UETA, visit http://www.ncsl.org/default.aspx?tabid=13484. For an example of an analysis of 15 U.S.C.S. § 7002 (2012), see generally, Blake v. Murphy Oil USA, Inc., 2010 U.S. Dist. LEXIS 95847, CAUSE NO. 1:10-CV-128-SA-JAD (N. D. Miss. Sept. 14, 2010).
10
11
Tenn. Code Ann. § 47-10-105(b) (2011); UETA §5(b) (1999).
12
Id.
15 U.S.C.S. § 7001(d) (2012); Tenn. Code Ann. § 47-10-112(a) (2011); UETA § 12(a) (1999).
13
The definition of electronic signature is codified in 15 U.S.C.S. § 7006(5) (2012); Tenn. Code Ann. § 47-10-102(8) (2011) and UETA § 2(8) (1999). The definitions state that the electronic signature must be “adopted by a person with intent to sign the record.” Therefore if the electronic signing party did not authorize or ratify the electronic signature, then the party would potentially be able to invalidate the electronic signature. See Buckles Management, LLC v. Investordigs, LLC, 728 F. Supp. 2d 1145 (D. Colo. 2010) (ruling that uncontested affidavit stating that alleged executing party did not have the authority or intent to send an email to enter into the final agreement was sufficient to vitiate the electronic signature), cf. Wike v. Vertrue, Inc., 2007 U.S. Dist. LEXIS 19843, No. 3:06-0204 (M.D. Tenn. Mar. 20, 2007) (holding that oral authorization to enter into electronic fund transfer program constituted an electronic signature). 14
15
Tenn. Code Ann. § 47-10-115(a-b) (2011); UETA §15(a-b) (1999).
16
Id.
15 U.S.C.S § 7001(g) (2012); Tenn. Code Ann. § 47-10-111(2011); UETA § 11 (1999). 17
18
Id.
19
Tenn. Code Ann. § 47-10-115(a-b) (2011); UETA §15(a-b) (1999).
20
Id.
Nashville Bar Journal - March 2012 15
Event Date: Thursday, May 10, 2012 NEW Location: Nashville Golf & Athletic Club in Brentwood Times: 12:00 pm - Range Balls Available 1:30 pm Shotgun Start
2012 NBA Annual Golf Tournament
Following Play:
We will have a Cookout and Prizes at the conclusion of Play
May 10, 2012
The 2012 NBA Golf Tournament is set for Thursday, May 10, 2012 at the Nashville Golf & Athletic Club in Brentwood. This year we will be playing at the private NGAC golf course, featuring a breath-taking panorama of the beautiful countryside and hills of Tennessee, representing a lovely series of opportunities for today's golfers. Range balls will be available at Noon with a Shotgun start at 1:30 p.m. We will have a Cookout and Prizes at the conclusion of Play. There will be team prizes and individual contests (longest drive, longest putt, closest to pin, etc.) Please use the form below to register yourself or a team. You can also register online at www.nashvillebar.org Late fees apply after Thursday, May 3, 2012. If you have any questions, you can contact Traci Hollandsworth at the NBA (242-9272 or traci.hollandsworth@nashvillebar.org
---------------------------------------------------------------------Principal Player Information:
Name: BPR#
Phone:
Email: FOURSOME:
1.
Handicap
2.
Handicap
3.
Handicap
Handicap 4. --------------------------------------------------------------------------Entry Fees: (Price includes greens fee, cart, lunch, snacks, beverages and
range fees) NBA Members on or before May 3: $140.00*; Non-NBA mem-
bers on or before May 3: $160.00* Card Type: Visa MasterCard Discover
Send check to: Nashville Bar Association 150 4th Ave., N., Suite 1050 Nashville, TN 37219
Credit Card Number:
Exp Date:
CVC Code:
--- or ---
Register Online at www.nashvillebar.org --- or ---
Fax to: 615.255.3026 Phone in: 615.242.9272
16 Nashville Bar Journal - March 2012
Signature:
BILL AND PHIL’S GADGET OF THE MONTH CLUB Continued from page 12
exhibit HGN. The inventors claim the app’s test is correct to within plus or minus .02. So, if you are wondering if you are drunk, buy BreathalEyes for ninety nine cents. Download it and see if you are. 8. Neverwet and Liquipel – www.liquipel.com and www. neverwet.com These products create a coating on your smart phone that completely waterproofs your phone. Liquipel requires you to ship your phone to them and get your protective film applied within one to three days. So, if you drop your cell phone in water, or expose it to water, it will be fine. Presently, Neverwet, a “super hydrophobic” coating that completely repels water and heavy oils on devices, clothing, and virtually anything is not available. However, a retail spray will be available by mid-year. So if you are accident prone, Liquipel and Neverwet are the products for you. 9. Find My iPhone – www.apple.com and Lookout www.mylookout.com This is software you can install on your smart phone, and you can use it to locate it if it is lost, misplaced or stolen. In addition, if you are sneaky, you can use it to track your spouse or children. (We give you no advice about the legal implications of using it for tracking.) In addition, Lookout prevents you from inadvertently downloading harmful software (malware) on your Android Phone or SmartPhone. Find my iPhone is completely free but is only available for iPad, iPhone and iPod touch. We believe these apps are essential since we are always losing something, especially our SmartPhones. 10. My Secret Folder (available in the Apple app store). This app is only available for Apple devices. However, it is coming soon for Android devices, and it is also available for Windows computers (www.my-secret-folder.com). My Secret Folder gives you a password protected folder on your SmartPhone or computer that is protected by industrial strength encryption. If someone tries to open the folder, the camera on the iPhone, iPad or computer (if it has one) takes a picture of the intruder. It also saves date and time – and the code they tried to enter. If you have location services turned on your iPhone, it saves the location. So, if you have a “snoop” hanging around, this is the app for you. The “Bill and Phil World Tour” is underway. After all, it is touring season. Follow us on Twitter — @Bill and Phil. See you next month, Bill & Phil
The Employer's Paradox: Drafting and Applying Social Media Policies to Pass NLRB Muster Continued from page 11
personal gripe about their employer. In conducting this analysis, the NLRB examines whether the comment specifically seeks to incite group action by co-workers and whether any co-workers responded to the comments. Will a Savings Clause Cure the Overbreadth of a Policy? Many employers have responded to the NLRB's recent interest in social media policies by incorporating a "savings clause" into their policies. A savings clause is simply a disclaimer at the bottom of the policy notifying employees that "nothing in this policy prohibits any activity protected by Section 7 of the National Labor Relations Act." These clauses can contain varying degrees of specificity, but their essential purpose is to carve out an exception to the social media policy for activity protected by the NLRA. The Acting General Counsel's report takes the position that a savings clause does not cure the overbreadth of an employer's policy. The Acting General Counsel reasoned that an employee could not reasonably be expected to understand that the savings clause meant that they would not be disciplined for protected activity. The report's rationale regarding savings clauses is suspect, and there is no reason to believe that a Court reviewing the NLRB's order, or even the NLRB itself, would share the Acting General Counsel's view on the efficacy of a savings clause.
May an Employer Enforce An Overbroad Policy? Surprisingly, the answer to this question is yes, under proper circumstances. The Board recently held that “discipline imposed pursuant to an unlawfully overbroad rule violates the Act in those situations in which an employee violated the rule by (1) engaging in protected conduct or (2) engaging in conduct that otherwise implicates the concerns underlying Section 7 of the Act.” The Continental Group, Inc., 357 NLRB No. 39, slip op. at 4 (2011). However, "an employer will not be liable for discipline imposed pursuant to an overbroad rule if it can establish that the employee’s conduct actually interfered with the employee’s own work or that of other employees or otherwise actually interfered with the employer’s operations, and that the interference was the reason for the discipline."
Conclusion This is an area of law that is in a state of flux and currently undefined. The implications of drafting and enforcing social media policies will only be sorted out through future litigation. In the interim, the Acting General Counsel's report provides useful guidance on where the NLRB will attempt to draw the lines governing social media policies. n Ben Bodzy is an attorney with Baker, Donelson, Bearman, Caldwell & Berkowitz, PC. He represents management in labor and employment litigation. His practice has two primary focuses: representation of management in traditional labor matters and litigation relating to the enforcement of post-employment restrictive covenants.
(Endnotes) 1
NLRB OM 12-31 (Jan. 24, 2012)
So, for example, if an employee makes an otherwise protected post on Facebook, and it causes a heated verbal exchange or physical confrontation in the workplace, then the employer could enforce its overbroad policy against the employee who made the post. Lesson Learned If an employer's policy is overbroad, the employer still may lawfully discipline employees for social media comments that spill over into the workplace so as to actually interfere with the employer's business.
Lesson Learned While the efficacy of savings clauses is being litigated, there is no downside to an employer including a savings clause in its social media policy. If the Acting General Counsel is correct, the clause is ineffective at curing any overbreadth in the policy, and the clause is superfluous. If the Acting General Counsel's position turns out to be incorrect, then the savings clause could spare the employer from liability for an overbroad policy. Nashville Bar Journal - March 2012 17
Reviewing E-Discovery Model Orders as Administrative Order No. 174 Turns Five Continued from page 9
should occur (e.g., as part of the initial preservation of ESI or at some point after a Fed. R. Civ. P. 26(f) conference discussing what ESI needs to be collected).30 Tailoring specific provisions of an e-discovery order or agreement on collection could provide parties helpful guidance to assist them in meeting their e-discovery obligations. Scope of production. Section 5 of Administrative Order No. 174 provides that “parties may consider limiting the scope of the electronic search (e.g., time frames, fields, document types)” and, thus, the scope of their production. Some other jurisdictions have narrowed the scope of production, for instance, by limiting the number of custodians whose ESI is subject to production, presuming that emails are not subject to production, and/or presuming that ESI outside a specified date range is presumptively not discoverable31 – although such limits are not without critics. Form(s) of production. Administrative Order No. 174 establishes the default standard that ESI “shall be produced to the requesting party as image files (e.g., PDF or TIFF)” and provides for parties to preserve that ESI in its native format (i.e., “the original formatting of the document, its metadata and, where applicable, its revision history”).32 Model orders in other jurisdictions have ranged from imposing a general presumption against production of metadata to enumerating specific metadata fields that should be produced.33 Further, some commentary has criticized the expense and other problems with image productions and advocates instead for native productions.34 Privilege. Section 8 of Administrative Order No. 174 provides that a receiving party shall immediately return ESI that contains privileged information and appears on its face to have been inadvertently produced or if there is notice of the inadvertent production within thirty 18 Nashville Bar Journal - March 2012
days of such, and directs litigants to Fed. R. Civ. P. 26(b)(5)(B) in all other circumstances. More recent model orders often reference the subsequently enacted Federal Rule of Evidence 502 to govern whether production or disclosure of ESI constitutes waiver of the attorney-client privilege or work-product protection. For instance, the Western District of Tennessee’s local rules encourage parties to reach an agreement on a proposed order on the issue pursuant to Rule 502.35 Entering a Rule 502(d) order has several benefits, including allowing parties to define what, if any, steps they must undertake in review of ESI to avoid privilege waiver and ensuring that the non-waiver provisions are enforceable in other legal proceedings and against those not a party to a non-waiver agreement.36 An issue not addressed in Administrative Order No. 174 is alternate methods to create privilege logs if any are to be produced. Generating document-bydocument privilege logs can be expensive, particularly with a large volume of ESI. Addressing this issue, the Delaware Model Order directs parties to confer on “whether categories of information may be excluded from any logging requirements and whether alternatives to document-by-document logs can be exchanged” and further provides that parties are not required to log information generated after the filing of the complaint.37 Cost-shifting. The default rule under Administrative Order No. 174 is that parties bear their own costs of e-discovery absent a showing of good cause to shift them to the requesting party.38 Rather than applying this presumption, the Western District of Tennessee’s local rules state that cost-shifting “should be considered” when ESI is sought and specifies seven factors for the court to weigh absent an alternate agreement of the parties, such as “the total cost of production compared to the amount in controversy” and “the relative benefits of obtaining the information.”39 Further,
the Federal Circuit Advisory Council’s model order for patent cases provides for cost shifting for “disproportionate ESI production requests” and for email production requests for additional custodians or search terms beyond the limits established in the order.40 In conclusion, Administrative Order No. 174 was an admirable achievement and has proven to be a frontrunner on many e-discovery issues. Even so, the significant developments in the field since its enactment coupled with the recent wave of e-discovery model orders in other jurisdictions may warrant this review of our order as it turns five. n W. Russell Taber, III, is a member of the Federal Court Committee of the Nashville Bar Association and submits this article on the Committee’s behalf. Taber, an attorney with Riley Warnock & Jacobson PLC, focuses his practice on business litigation. His practice regularly involves e-discovery issues. Prior to joining the firm, he served as a law clerk for the Hon. Gilbert S. Merritt, Jr., of the U. S. Court of Appeals for the Sixth Circuit. Taber graduated Phi Beta Kappa from Georgetown University and received his law degree from Vanderbilt University Law School, where he was a member of the Vanderbilt Law Review, the Moot Court Board and the Order of the Coif. (Endnotes) 1 According to one source, the world’s ESI was estimated to increase more than twelve times between 2006 and 2011. See Jason R. Baron & Ralph C. Losey, e-Discovery: Did You Know?, YouTube (Feb. 11, 2010)., http://www.youtube.com/watch?v=bWbJWcsPp1M 2 See David J. Lender & Hon. Andrew J. Peck, 10 Key E-Discovery Issues in 2011: Expert Insight to Manage Successfully, 19 Metro. Corporate Counsel 4, 7 (Apr. 2011) (“According to the Socha-Gelbmann Electronic Discovery Survey, electronic discovery costs exceeded $2.7 billion in 2007 and were expected to top $4.6 billion in 2010.”). 3 See Administrative Order No. 174 § 1 (“The court expects the parties to cooperatively reach agreement on how to conduct e-discovery.”). 4 The Sedona Conference, The Sedona Conference Cooperation Proclamation (July 2008). 5 See, e.g., Wells Fargo Bank, N.A. v. LaSalle Bank Nat’l Ass’n, No. 3:07-cv-449, 2009 WL 2243854, at *2 (S.D. Ohio July 24, 2009); Seventh Circuit Electronic Discovery Pilot Program, [Proposed] Standing Order Relating to the Discovery of Electronically Stored Information, Principle 1.02 [hereinafter “Seventh Circuit Electronic Discovery Pilot Program”]). 6 See generally The Sedona Conference, The Sedona Conference Commentary on Proportionality in Electronic Discovery (Oct. 2010).
7 Seventh Circuit Electronic Discovery Pilot Program, Principle 1.03. Fed. R. Civ. P. 26(b)(2)(C)(iii) provides that “the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that . . . the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.”
Report of the Judicial Improvements Committee, Pilot Project Regarding Case Management Techniques for Complex Cases, Exhibit B - Joint Electronic Discovery Submission and [Proposed] Order §§ 1, 7(e) (S.D.N.Y. Oct. 2011). 8
9
Administrative Order No. 174 § 2.
10
Id. at §§ 3, 7.
11
S.D.N.Y. Model Order § 2.
Seventh Circuit Electronic Discovery Pilot Program, Principle 3.01.
12
13
Administrative Order No. 174 § 7.
14
S.D.N.Y. Model Order § 5(b).
Seventh Circuit Electronic Discovery Pilot Program, Principle 2.04(d); Default Standard for Discovery, Including Discovery of Electronically Stored Information (“ESI”) § 1(c)(ii) (D. Del.)[hereinafter “Delaware Model Order”]. 15
See, e.g., Gregory P. Joseph, Executive Summary: E-Discovery Panel, Duke Conference on Civil Litigation (May 11, 2010), available at http://www.uscourts.gov/ uscourts/RulesAndPolicies/rules/. 16
Be More Effective and More Efficient Than Exhaustive Manual Review, 17 Rich. J.L. Tech. 11 (2011).
(W.D. Tenn. Nov. 16, 2011)(discussing collection of ESI).
See eDiscovery Institute Survey on Predictive Coding, at ii (Oct. 1, 2010), available at http://ediscoveryinstitute.org/publications/ediscovery_institute_survey_on_predictive_coding
31
25
26
S.D.N.Y. Model Order § 6(a).
See generally Hon. Andrew Peck, Search, Forward: Time for Computer-Assisted Coding, Law Technology News (Oct. 1, 2011), http://www. law.com/jsp/lawtechnologynews/PubArticleLTN. jsp?id=1202516530534 (last visited Oct. 2, 2011) (“Until there is a judicial opinion approving (or even critiquing) the use of predictive coding, counsel will just have to rely on this article as a sign of judicial approval. In my opinion, computer-assisted coding should be used in those cases where it will help ‘secure the just, speedy, and inexpensive’ (Fed. R. Civ. P. 1) determination of cases in our e-discovery world.”). 27
E-Discovery Team, Another “Fox Guarding the Hen House” Case Shows the Dangers of Self-Collection (Mar. 20, 2011), http://e-discoveryteam.com/2011/03/20/ another-fox-guarding-the-hen-house-case-shows-thedangers-of-self-collection. 28
The Sedona Conference defines the term “metadata” as “[d]ata typically stored electronically that describes characteristics of ESI, found in different places in different forms . . . Metadata can describe how, when, and by whom ESI was collected, created, accessed, modified, and how it is formatted.” The Sedona Conference Glossary: E-Discovery and Digital Information Management 34 (3d. ed. Sept. 2010). 29
See Patent Model Order §§ 6, 10; Delaware Model Order § 4(e).
32
Administrative Order No. 174 § 6.
Compare Patent Model Order § 5 (“General ESI production requests . . . shall not include metadata absent a showing of good cause”) with Delaware Model Order § 5(e)(enumerating specific fields of metadata that parties are obligated to produce, if they exist).
33
See Craig Ball, Is it Malpractice? Processing .tiff files is expensive and as messy as stabbing vampires, Law Technology News (Nov. 1, 2010), http://www. law.com/jsp/lawtechnologynews/PubArticleLTN. jsp?id=1202473932044 (last visited Feb. 4, 2012).
34
35
Local R. Civ. P. 26.1(e)(8)(W.D. Tenn.).
See generally Paul W. Grimm, Lisa Yurwit Bergstrom & Matthew P. Kraeuter, Federal Rule of Evidence 502: Has It Lived Up to Its Potential?, 17 Rich. J.L. & Tech. 8 (2011).
36
37
Delaware Model Order § 1(d).
38
Administrative Order No. 174 § 9.
39
Local R. Civ. P. 26.1(e)(9)(W.D. Tenn.).
40
Patent Model Order §§ 3, 10, 11.
See generally Nacco Materials Handling Group, Inc. v. Lilly Co., No. 11-2415 AV, 2011 WL 5986649, at *9 30
Duke%20Materials/Library/E-Discovery%20Panel,%20Executive%20Summary.pdf 17
Administrative Order No. 174 § 4.
18 See Delaware Model Order § 4 (“Initial Discovery in Patent Litigation”).
Report of the Judicial Improvements Committee, Pilot Project Regarding Case Management Techniques for Complex Case § II.A (S.D.N.Y. Oct. 2011). 19
20
Administrative Order No. 174 § 5.
See Local R. Civ. P. 26.1(e)(5) (W.D. Tenn.); Delaware Model Order § 5(b). The Western District of Tennessee’s local default e-discovery rules were effective March 1, 2011 and were patterned to a large degree on Administrative Order No. 174. 21
Delaware Model Order § 5(b) (“Absent a showing of good cause, a requesting party may request no more than 10 additional terms to be used in connection with the electronic search”). In addition, the Federal Circuit Advisory Council adopted a “[Model] Order Regarding E-Discovery in Patent Cases” presented by Chief Judge Randall Rader of the U.S. Court of Appeals for the Federal Circuit on September 27, 2011 [hereinafter “Patent Model Order”]. Section 11 of the Patent Model Order provides that “[e]ach requesting party shall limit its email production to a total of five search terms per custodian per party.”
22
See ESI Bytes, New Model Order for E-Discovery In Patent Cases, http://www.esibytes.com/?p=2085 last visited Feb. 4, 2012.
23
24 See, e.g., Maura R. Grossman & Gordon V. Cormack, Technology-Assisted Review in E-Discovery Can
Nashville Bar Journal - March 2012 19
LAW DAY 2012 Monday, April 30, 2012 Downtown Renaissance Hotel Registration: 10:45 a.m. Lunch: 11:15 a.m. - 12:15 p.m.
No Courts No Justice No Freedom
PLEASE MAKE A NOTE OF THE EARLIER REGISTRATION & LUNCH TIME THIS YEAR! Open and accessible courts are the cornerstone of a free society. The framers of our Constitution recognized the importance of the courts when they made the judiciary one of the three coequal branches of our government. The courts are where we go to have our rights protected, our injuries redressed and our disputes resolved. The 2012 Law Day theme, "No Courts, No Justice, No Freedom," underscores the importance of the courts and their role in ensuring access to justice for all Americans.
The NBA is privileged this year to have as our speaker Senator Lamar Alexander to tell us about one particular abuse of power and the steps taken to stop it. It is that remarkable event about which Senator Alexander will address us at the Law Day luncheon. In January 1979, with Governor Ray Blanton’s term coming to a close, the State's Pardon Board began to issue pardons that appeared to be purely political or the subject of bribery. This appearance of, and as it turned out actual, impropriety caused an outcry from both political parties. Leaders in the legislature hunted for a way to stop the carnage, and found it in the Tennessee Constitution. It was decided to swear in Governor-elect Alexander three days before the traditional inauguration day, and that was done. Lieutenant Governor John Wilder later referred to Blanton's early removal as "impeachment Tennessee-style.” At the Law Day Luncheon Senator Alexander will give us the inside story of the “impeachment” of Ray Blanton.
REGISTRATION - NBA LAW DAY LUNCHEON: 10:45 a.m. Check-in - Lunch at 11:15 - 12:15 pm.
Charge by Fax (615.255.3026) or Phone (615.242.9272)
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$_________ LAW DAY SPONSOR Includes 10 tickets and recognition in program $475 on or before April 23; $575 after April 23
Send Check to: Nashville Bar Association 150 4th Avenue, Suite 1050 Nashville, TN 37219 or
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Additional Attendees:_______________________________________________________________________________________ __________________________________________________________________________________________________________ __________________________________________________________________________________________________________ 20 Nashville Bar Journal - March 2012
Nashville Bar Journal - March 2012 21
Disclosure Rita Roberts-Turner has been elected president of the NapierLooby Bar Foundation. She is a 1998 graduate of Temple University School of Law, a former assistant Metro public defender and former attorney with the Metropolitan Department of Law. She is an active member of the Nashville Bar Association and was recently inducted as a Nashville Bar Foundation fellow. She is currently the acting Human Resources Director for the Metropolitan Government. David Green, an associate with Waller Lansden Dortch & Davis, LLP, was elected vice-president. Additional 2012 officers are: Patrick Norton, Treasurer; Kinika Young, Secretary; William Stover, Immediate Past President; and Susan Tucker Jones, Board Member at Large Ryan Holt has joined the law firm of Sherrard & Roe, PLC as an associate in the firm’s Litigation Practice Group where he will focus on commercial litigation and general appellate litigation. Prior to joining Sherrard & Roe, Holt was a law clerk to the Honorable Gilbert S. Merritt, U.S. Court of Appeals for the Sixth Circuit. A Nashville native, Holt received his J.D. in 2010 from Vanderbilt University Law School, where he earned the Founder’s Medal for graduating first in his class. He also served as the Editor in Chief of the Vanderbilt Law Review and was elected to the Order of the Coif. Holt received a master’s degree in Economics from the University of Nebraska-Lincoln and taught at a public middle school in New York City through the program Teach For America. He graduated summa cum laude with his bachelor’s degree from Vanderbilt University in 2005 with a double major in Economics and Philosophy, and was elected to Phi Beta Kappa. Erik O. Thorngren has been named member of Watkins & McNeilly, PLLC. He practices in the area of civil litigation, estate planning and probate. Thorngren obtained his undergraduate degree from Tennessee Technological University in 1988 and his law degree from the University of Tennessee in 1998. 22 Nashville Bar Journal - March 2012
\Dis*clo”sure\ (n) The act of revealing, releasing or bringing to light relevant information concerning NBA Members & Staff. n Announcements n Kudos n People on the Move n Firm News n Samuel P. Helmbrecht has been named member of Watkins & McNeilly, PLLC. He practices in the area of civil litigation. Helmbrecht obtained his undergraduate degree from the University of Tennessee in 2001 and his law degree from the University of Dayton in 2004. Jonathan R. Burns has become an associate of Watkins & McNeilly, PLLC. He practices in the corporate, estate planning and probate section. Burns obtained his undergraduate degree from Middle Tennessee State University in 2006, his law degree from the University of Mississippi in 2010 and his masters in tax from Washington University in St. Louis University in 2011. Paul Krivacka, a partner at Adams and Reese, has been re-elected Chairman of the Tennessee Dry Cleaners Environmental Response Board for the Tennessee Department of Environment and Conservation. Krivacka is in the midst of his fourth consecutive term serving as a member of the Board, a position in which he was appointed by the Governor of Tennessee. The Department of Environment and Conservation safeguards the health and safety of Tennessee citizens from environmental hazards; protects and improves the quality of the land, air and water and manages the state parks system. At Adams and Reese, Krivacka's primary practice is in the areas of airport law, governmental relations, administrative and regulatory law, environmental law and state and local tax. Krivacka has written several legal articles as well as those on brownfield redevelopment. He holds an M.B.A. and is a frequent speaker on economic development and state and local tax matters. J. Christopher Anderson has joined Littler Mendelson, P.C. as a shareholder. His labor and employment law practice encompasses representing clients in such matters as workplace investigations, disciplinary actions, employee handbooks, employment policies and terminations. Anderson also counsels clients on compliance with state and federal employment law including the Fair Labor
Standards Act, the Family Medical Leave Act and Federal Motor Carrier Safety regulations. He received his J.D. from University of Tennessee College of Law and his B.A. from the University of Tennessee, Knoxville. Tara Presnell has joined Littler Mendelson, P.C. as a shareholder. She specializes in providing counsel for employers regarding various employment law matters, such as workplace discrimination and harassment, medical leave, employment policies, disciplining employees and performance problems. She also helps clients with single plaintiff employment discrimination lawsuits, wage and hour class actions, as well as claims with the Equal Employment Opportunity Commission. Presnell received her J.D. from Pepperdine University School of Law and her B.A. from University of California at Berkeley. Autumn Gentry has been elected a member of Dickinson Wright PLLC. Her areas of focus include business torts; consumer protection; insurance; labor and employment; product liability and personal injury; and workers compensation. Gentry is a member of the American Bar Association, the Defense Research Institute, Nashville Bar Association, and the Tennessee Bar Association. She also is a graduate of the International Association of Defense Counsel Trial Academy. Gentry is active in her community as part of the Tennessee Volunteer Lawyers for the Arts and the Nashville Pro Bono program. She has a B.A. (With Honors) from Middle Tennessee State University and a J.D. from the University of Tennessee College of Law. Adam Knight has been elected a member of Dickinson Wright PLLC. His area of practice focuses on construction; commercial and business litigation; product liability and personal injury; insurance; and workers compensation. Knight is a member of the Nashville Bar Association, Tennessee Association of Construction Counsel, Tennessee Defense Lawyers Association, and the Tennessee Bar Association. He is also a graduate of the International Association
of Defense Counsel Trial Academy and the Tennessee Bar Association Leadership Law Program. Knight has a B.S. from Middle Tennessee State University and a J.D. from the University of Memphis, Cecil C. Humphreys School of Law. Jason Gichner has joined Dodson Parker Behm & Capparella, PC as an associate. He joins the firm’s litigation section, with an emphasis in business, employment and criminal defense matters. Gichner was previously senior trial attorney at the Metro Public Defender’s Office, where he handled hundreds of cases and developed extensive jury trial experience. He earned his J.D. degree from Vanderbilt University, where he served on the Journal of Transnational Law and the Moot Court Board. While in law school, he received both the Outstanding Oralist of the Year Award and the Clinical Legal Student of the Year Award. Gichner is a graduate of the Western Trial Advocacy Institute in Laramie, Wyo., and he is also a graduate of the Clarence Darrow Capital Defense College in Chicago. He received his B.A. degree with honors from Colgate University in Hamilton, N.Y.
United States Congressman and civil rights leader John Lewis spoke to more than 300 community, business and civil rights leaders at a January 13 luncheon celebrating the legacy of Dr. Martin Luther King Jr, hosted by Nashville law firm Waller Lansden Dortch & Davis.
Photo credit- Susan Adcock
Waverly Crenshaw, Waller Lansden Dortch & Davis; Dean Doug Blaze, University of Tennessee College of Law; Meesha Kaw, recipient of the Waller Lansden’s Diversity Endowed Scholarship; Congressman John Lewis and John Tishler, Waller Lansden Dortch & Davis
Nashville Bar Association members may send Disclosure announcements via email to nikki.gray@nashvillebar.org Submissions are subject to editing.
2012 NBA Premier Members INCLUDE: Tara Aaron Gail Vaughn Ashworth Robert L. Ballow Kathryn E. Barnett Barbara Bennett Michael Weimar Binkley Charles W. Bone Jay S. Bowen C. Dewey Branstetter Jr. Teresa Rider Bult Joshua Burgener C. Mark Carver Robert Garry Chaffin Mark P. Chalos Jonathan Cole Lee Lawrence Coleman Dixie W. Cooper John A. Day David Clyde Downard John Franklin Floyd Mark Thomas Fraley Samuel P. Funk Barry James Gammons Benjamin Ealey Goldammer Charles K. Grant John J. Griffin Jr. Mitch Grissim Jr. William L. Harbison Marian F. Harrison Trey Harwell Barbara D. Holmes Paul T. Housch John D. Kitch William C. Koch Jr. Thomas W. Lawless
Richard Wesley Littlehale Leslie Stophel Maclellan Cheryl White Mason Richard McGee Rob McKinney John C. McLemore Robert J. Mendes Natasha K. Metcalf Jeffrey Mobley Elizabeth Enoch Moore Marlene Eskind Moses Patricia Head Moskal Michael I. Mossman Phillip L. North Robert J. Parker Katharine (Betsy) Elizabeth Phillips Tracy A. Powell Mark Bradley Reagan Edgar M. Rothschild III Thomas J. Sherrard III Marietta M. Shipley Emily A. Shouse James Gerard Stranch IV James G. Stranch III Robert T. Vaughn Irwin Bruce Venick Howard H. Vogel Karl D. Warden James L. Weatherly Jr. Peter Weiss Eleanor K. Wetzel Thomas V. White Larry R. Williams Nicholas S. Zeppos
NBA Premier Membership is a special category that recognizes our members who desire to demonstrate the utmost in commitment and support to the NBA Programs & Services. Contact Vicki Shoulders (615.242.9272, vicki.shoulders@nashvillebar.org) for details.
WELCOME NEW NBA MEMBERS Kira M. Bardun Feonard G. Belmares III Carrie E. Bryant Melissa M. Burton Bradley Arant Boult Cummings LLP* Nathan D. Caldwell James Allen Callison Morgan & Akins, PLLC* John R. Capps Megan Allison Carrick Brewer, Krause, Brooks, Chastain and Burrow, PLLC* Joshua R. Denton Bass, Berry & Sims PLC
Stephanie Ann Elkins Morgan & Akins, PLLC* Aaron Fletcher Steven W. Gaches Mitzi Leasha George Leitner, Williams, Dooley & Napolitan, PLLC* Benajmim Glover Emily C. Green William Edward Griffith Law Office of William E. Griffith Jennifer J. Hall Alyssa C. Hennig Sarah Melissa Jones Constangy, Brooks & Smith, LLP
Elizabeth L. Marsh Farrar & Bates, LLP Brent C. Mayo Matt E. Pulle Jeffrey W. Sheehan Jeffrey L. Simpson James Montgomery Smith Davis Chapter 13 Trustees Office David L. Thibodeaux Michelle Thomas-Smith Hope Law Office Kenya A. Williams * Belongs to a 100% Club firm
DIAL - A - LAWYER
Dial-A-Lawyer is held the first Tuesday of each month. FEBRUARY Volunteers: Mo Syed Gina Crowley Jamie Machamer Tom Lawless Joe Rusnak To volunteer your time, please contact Wendy Cozby, LRIS Coordinator at wendy.cozby@ nashvillebar.org or 242-9272. Pro Bono credit does apply and dinner will be provided. Nashville Bar Journal - March 2012 23
Classifieds
Office Space
OFFICE SPACE
Downtown Office condos for Lease or Sale. 500 to 2500 sq. feet. 501 Union Street, 5th floor. Near Legislative Plaza. Call Lynne at (615) 259-1550.
METROCENTER AREA LAW FIRM Established Nashville law firm has one office space immediately available. Includes receptionist services, cable internet, telephones and fax, conference room, kitchen, copiers, some LexisNexis subscription services, website advertising and more. Professional work environment. Free and convenient parking. Contact Cynthia Bohn at (615) 252-8866 for details.
DOWNTOWN Law firm has office space to rent for two attorneys and assistants, if needed or option 2 attorney can sublease entire suite which will accommodate four to five attorneys and staff. Office is located in the Regions building downtown on the first floor with window view. Includes internet, all utilities, use of copy/fax/scanner, and postage machine. If interested, please e-mail rpnimmo@nimmolaw.com or contact Price Nimmo at 615-244-2244.
Advertising:
Contact Tina Ashford at tina.ashford@nashvillebar.org or (615) 242-9272
Advertise your Office Space in the Nashville Bar Journal
CC
DOWNTOWN Prime, A++ office space with two conference rooms for lease in the 5th 3rd Bank Tower, Downtown Nashville. State of the art copier, scanner, fax, high speed internet access, digital phone system and receptionist all provided. Receptionist provided to answer your phone line and greet your clients. $1,750.00 per month. Contact: John Agee @ (615)256-5661 or (615)218-7131. DOWNTOWN OFFICE SPACE AVAILABLE NEAR COURTHOUSE Downtown office space available on the first floor in the historic Barristers Building at 329 Union Street in Nashville. Four offices, library, conference room, kitchen, secretary space and reception area available. One block from courthouse, banks and restaurants. Call Jonathan Williams, 615-256-8880. Midtown Midtown : 682 square feet with beautiful view of Centennial Park; $19.15 per square foot with annual increases; available as is or with build-out cost to be prorated over term of sublease; space is newly carpeted and newly painted, with small kitchen area; covered parking; available immediately. Please call 615-321-5659. Midtown-1900 Church Executive office suites for lease in Midtown Nashville located at 1900 Church, Suite 300. Free covered parking, conference rooms, break room, color copier, and receptionist to greet your clients. Administrative support and flexible terms available. For more information, please call Cheryl Gunn at (615) 983-6935. green hills Established Green Hills law association has office and adjoining secretarial space available for immediate occupancy. Free parking, excellent on-line and hard-cover Tennessee library, conference rooms, receptionist, and voice mail available. Call 383-3332.
Nashville Bar Journal Classifieds Online at www.nashvillebar.org 24 Nashville Bar Journal - March 2012
Office Space Available: Victorian Era home, (+/- 6,300 sq./ ft/) with majestic chandeliers and a grand staircase upon entry, has been renovated into offices. Limited spaces available. We are located on Second Avenue, South, with free parking for attorneys and clients. Call Mary or Stephen at Parker & Crofford (615) 244-2445.
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