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You’re More Likely to Be Hit by Lightning Than to Be Sanctioned for Non-Preservation of ESI: eDiscovery Best Practices

When it comes to eDiscovery topics, eDiscovery expert (and frequent thought leader interviewee on this blog) Craig Ball doesn’t hesitate to speak his mind and confront the (oftentimes) brutal truth.  In Craig’s latest post in his excellent Ball in Your Court blog, he does so in spades.

In Preservation and Proportionality, Craig sets the stage with a graphic showing a Lady Justice statue with a thumb holding down one end of the scales (I like it!).  He introduces the topic by stating:

“Litigants have been ignoring e-discovery obligations with impunity for so long they’ve come to think of it as an entitlement.  Protected from predators, few have evolved.  But now that opponents and courts are waking to this failure, those who’ve failed to adapt are feeling exposed. They don’t like it, and they want protection.  They call it ‘proportionality.’

Proportionality sounds wholesome and virtuous, like ‘patriotism’ or ‘faith;’ but like those wholesome virtues, it’s sometimes the refuge of scoundrels.”

But, without proportionality, how will organizations protect themselves against the “increased” threat of sanctions for spoliation?  Craig addresses that by debunking the myth:

“The much-ballyhooed ‘rise in sanctions’ is designed to mislead.   The solid metrics we have on spoliation sanctions prove that the risk of being sanctioned for negligent non-preservation remains miniscule (.00675% per a report from the Federal Judicial Center).  Put simply: In the United States, you are more likely to be hit by lightning than to be sanctioned for non-preservation of ESI.”

Noting that “the overwhelming majority of e-discovery sanctions decisions turn on venal acts like intentional destruction of evidence and contemptuous disregard of discovery obligations”, Craig decides to “tell it like it is: The claim that diligent, responsible litigants are being sanctioned for innocent e-discovery errors is hogwash.”

Craig then addresses how many organizations address their preservation obligations to avoid sanctions “by embracing monumental inefficiency in preservation instead of making sensible, defensible choices” and blaming the plaintiff for requesting the data (spoiler alert, it’s not the plaintiff’s fault).  “To the extent ‘proportionality’ is a byword for ‘let us err with impunity,’ it’s too soon in the evolution of e-discovery to be so resigned to incompetence.  If anything, we need more sanctions for incompetence, not more safe harbors”, Craig states.

Craig’s post continues to discuss the level of competence of lawyers preserving data, the efforts to use the proportionality argument and the court’s role in deciding (“proportionality shouldn’t be pressed into service as a “Get Out of Jail Free” card for botched preservation; but, it can prove instructive to courts weighing sanctions for failure to preserve relevant evidence”, he states).  In the end, it’s up to courts to “insist parties know how to use the scale and don’t put their thumbs on the pan” (of the scales of justice, that is).

By the way, this isn’t a recent sentiment of Craig’s spawned by the impending Federal rules changes this December, he notes that he wrote this post four years ago, but never posted it.  Interesting.

A link to his post is here.

So, what do you think?  Do you think we need more sanctions for incompetence and not just for willful destruction of ESI?   Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Defendant Gets Summary Judgment, Not Dismissal, Due to Plaintiff’s Wiping of Hard Drive: eDiscovery Case Law

In Watkins v. Infosys, 14-0247 (W.D. Wa., July 23, 2015), Washington District Judge John C. Coughenour denied the defendant’s Motion for the Sanction of Dismissal but granted the defendant’s Motion for Summary Judgment against the plaintiff for spoliation of data due to her use of “Disk Wiping” software to delete ESI.

Case Background

In this discrimination case, the defendant’s forensic expert determined that the plaintiff performed a Bing search for the term “disk wipe” and downloaded and installed file wiping software onto the hard drive of her work computer around October 20, 2013, and ran the program to wipe files.  In addition, eleven external media drives had been connected to the plaintiff’s laptop in the days prior to the disk wipe.  Furthermore, the plaintiff perjured herself when she stated that “she did not `remove’ things from Defendant’s premises,” and that she “followed procedures typical with such litigation . . . to avoid the alteration or deletion of documents, in addition to preserving data back-ups relating to her employment.”

The plaintiff ultimately admitted in her deposition that she wiped the files, claiming that she did so out of concern for information preservation and client confidentiality.  In a supplemented response filed on the last day of discovery, the plaintiff again refused to turn over the wiped contents of her work computer, claiming that all of the files passed through the defendant’s servers (so the defendant presumably had copies), that the unproduced files were “vast and irrelevant to the claims or controversies in this case” and that she was “in the process of replicating all documents that she retained and will provide the same to Defendant upon their soonest availability.”

Judge’s Ruling

Judge Coughenour stated that he found the plaintiff’s responses “both illogical and unbelievable”, noting that her “brief in response to Defendant’s motion for the sanction of dismissal only exacerbates the problem…There, Plaintiff regurgitates flimsy justifications for wiping her disk drive, doubles-down on her unsupported argument about the irrelevance of the wiped files, and asserts blankly that “there has been no actual suppression or withholding of evidence since the entire content of Plaintiff’s computer has been produced to Defendant.”

With the spoliation (and associated perjury) clear, Judge Coughenour then turned his attention to determining the appropriate sanctions.  To consider dismissal, he noted the requirement to weigh five factors: (1) the public’s interest in expeditious resolution of litigation, (2) the court’s need to manage its dockets, (3) the risk of prejudice to the party seeking sanctions, (4) the public policy favoring the disposition of cases on their merits, and (5) the availability of less drastic sanctions.  Reviewing the five factors, Judge Coughenour found “that three weigh in favor of dismissal and two do not” and, while describing it as “an incredibly close call”, he stated that “the Court prefers to address this case, finally, on its merits.”  Therefore, he denied the defendant’s motion for dismissal, opting instead to grant a motion for summary judgment.  Judge Coughenour also ordered plaintiff’s counsel to show cause as to why sanctions should not be issued against them.

So, what do you think?  Should the court have granted the motion for dismissal?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Plaintiff Once Again Sanctioned with an Adverse Inference Instruction, But Still No Complete Dismissal: eDiscovery Case Law

In Lynn M. Johnson v. BAE Systems, Inc. et. al., Civil Action No. 11-cv-02172 (RLW) (D.D.C. May 27, 2015), District of Columbia District Judge Robert L. Wilkins granted the defendants’ motion for summary judgment with respect to the plaintiff’s claims for negligence, battery, and defamation, but chose to “impose lesser, but nonetheless severe, sanctions” in the form of an adverse inference instruction for her remaining claim for intentional infliction of emotional distress.

Case Background

The plaintiff, a U.S. government employee deployed in Iraq, sued the defendants for actions taken by its employee during a project that they worked on together, alleging “severe physical and emotional health problems”.  During discovery, the defendant requested medical records in preparation for an expert witness’s examination of the plaintiff – she provided the defendant with falsified medical records which she had edited in an effort to eliminate references to health issues that predated her deployment to Iraq. The defendant filed a motion for sanctions seeking dismissal and the Court granted in part and denied in part the motion, sanctioning the plaintiff and her counsel with fees and an adverse inference instruction.

Then, on September 25, 2013, the defendant requested a forensic examination of the plaintiff’s computer.  That evening, the plaintiff contracted with a local computer technician who performed various maintenance functions, which included running a program called CCleaner that is capable of permanently deleting files.  Subsequent forensic analysis showed that several Microsoft Outlook .pst email storage files were placed into the recycling bin and deleted on September 27.  The technician testified that the plaintiff did not tell him she was in litigation, she did not ask him not to delete anything from her computer and he did not place the Outlook files in the recycle bin. The defendants also requested Facebook messages, and the court found evidence that the plaintiff had tampered with those messages, as well.

Judge’s Ruling

Regarding the latest activities by the plaintiff, Judge Wilkins stated that “The Court finds by clear and convincing evidence that Ms. Johnson destroyed, attempted to destroy, or caused to be destroyed files on her computer with potential relevance to this case”, noting that “under no circumstances should Ms. Johnson have contracted with a computer technician to ‘clean up’ a computer sought for forensic imaging, particularly without making a disk image or even informing the technician of ongoing litigation. That she chose to do so is very troubling.”  Judge Wilkins expressed similar concern by the plaintiff’s failure to produce Facebook messages from earlier than February 2013.

Summarizing the behavior by the plaintiff, Judge Wilkins stated “Over the course of this suit, Ms. Johnson has repeatedly obfuscated the truth. She has altered medical records, contradicted herself in depositions and testimony before the Court, and failed to preserve and produce relevant documents during discovery.”  Still, Judge Wilkins could not bring himself to dismiss the case, stating “Although it is an exceedingly close question, the Court concludes that Ms. Johnson’s conduct does not merit this most serious of remedies.”

As a result, Judge Wilkins awarded the defendant an adverse inference instruction sanction against the plaintiff, awarded the forensic expert’s fees spent by the defendant’s expert and dismissed the plaintiff’s claims for negligence, battery, and defamation.

So, what do you think?  Should the repeated violations by the plaintiff have led to full dismissal?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

This Firm Marked Up Reviewer Billings Over 500 Percent and that’s Not the Worst Part: eDiscovery Trends

Remember when we asked the question whether a blended document review rate of $466 per hour is excessive? Many of you weighed in on that one and that post is still our most viewed of all time. Marking up the billing rate for reviewers over 500 percent may or may not also be unacceptable, depending on who you talk to. But, everyone agrees that billing more hours than you actually worked is a bad thing.

According to a new article by Gina Passarella in The Legal Intelligencer (Are Contract Attorney Markups Of Any Concern to Clients?), a former Drinker Biddle & Reath contract attorney received a two-year suspension last week for overbilling a client on document review. The attorney worked for the firm from 2011 through 2012, where he was paid $40 an hour and charged out to a client at $245 an hour.

If you’re whipping out your calculator, I’ll save you the trouble – that’s a 513 percent markup (rounded up).

But, that’s not why he was suspended. It turns out that the attorney logged more time into the firm’s time accounting system than he was logged into the firm’s eDiscovery system and had overbilled for the 12 months he was at the firm. Drinker Biddle terminated the attorney within days of discovering the discrepancy.

But, according to Passarella’s article, “the legal community’s reaction focused not so much on the behavior as on the lawyer’s billing rate… Some have described a 513 percent markup as ‘stratospheric’ while others have said a firm’s internal profitability is none of the client’s business as long as the client feels it is getting the perceived value from the business transaction.”

Drinker Biddle chairman Andrew C. Kassner defended the markup, citing overhead costs and said that the firm works hard to ensure value for the client and provided a lower-cost option to the client by using a contract lawyer rather than an associate.

Unlike Mark Antony (the Roman emperor, not the singer), I don’t come to bury Drinker Biddle in this article, many law firms mark review up considerably. And, as Passarella notes, “Drinker Biddle was certainly an early adopter of the value proposition espoused by the Association of Corporate Counsel and others, becoming one of the first law firms to create a chief value officer position in 2010 and forming an associate training program post-recession that didn’t charge clients for the first four months of a first-year’s time.”

However, Passarella’s article does quote three individuals who questioned the current billing model: 1) a former general counsel who, while he was in-house, “decoupled” the use of contract attorneys from outside counsel, 2) a former BigLaw attorney who became disenchanted with the large-firm business model and created his own firm which focuses on providing better value to clients, and 3) an Altman Weil consultant who questioned the $245 value for document review, noting that “if it were really important they wouldn’t be using a $40-an-hour lawyer”. Perhaps we should revisit the discussion as to whether it’s time to ditch the per hour model for document review?

As for the overbilling, Kassner said the firm paid back the client all that it was charged for the overbilled time as well as for any time the attorney charged on the matter.

So, what do you think? Is it time to ditch the per hour model for document review? Or, is marking up reviewer billing two to three times (or more) an acceptable practice? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Tired of the “Crap”, Court Sanctions Investors and Lawyers for Several Instances of Spoliation: eDiscovery Case Law

In Clear-View Technologies, Inc., v. Rasnick et al, 5:13-cv-02744-BLF (N.D. Cal. May 13, 2015), California Magistrate Judge Paul S. Grewal sanctioned the defendants $212,320 and also granted a permissive adverse jury instruction that allows the presumption that the defendants’ spoliated documents due to a series of “transgressions” by the defendants and their prior counsel.

You’ve got to love an order that begins this way:

“Deployment of ‘Crap Cleaner’ software—with a motion to compel pending. Lost media with relevant documents. False certification that document production was complete. Failure to take any steps to preserve or collect relevant documents for two years after discussing this very suit. Any one of these transgressions by {the defendants} and their prior counsel might justify sanctions. Taken together, there can be no doubt.”

This case arose from the defendants’ alleged conspiracy with certain former plaintiff’s employees to take over the plaintiff’s company or, failing that, to divert their personnel, intellectual property and investors to a competing enterprise to commercialize the plaintiff’s alcohol tracking product known as the “BarMaster”. As early as May 2011, the plaintiff threatened Defendants with litigation for interfering with the plaintiff’s operations, ultimately filing suit in June 2013.

After the plaintiff’s discovery requests yielded just 422 pages produced by the defendants (including no communications solely between defendants and virtually no communications between defendants and any “co-conspirator” identified in the plaintiff’s requests) the plaintiff moved to compel further production and in September 2014, the court granted the motion and ordered that “(i) Defendants appear by September 23 for depositions regarding ‘document preservation and production,’ and (ii) the parties meet and confer in order to submit to the court by September 30 ‘a plan to retain an independent consultant to do a limited forensic collection and analysis of the media associated with each named defendant.’”

During the depositions, the individual defendants admitted having deleted numerous emails and text messages, failing to preserve devices that potentially responsive data was stored on, failing to search key media and failing to use obvious search terms in the searches that they did perform. Meanwhile, in October 2014, per the parties’ joint agreement, the Court selected the a digital forensics firm (at the defendants’ expense) to perform a forensic analysis of Defendants’ media and email accounts, with the order calling for the defendants to produce over 40 specified electronic media and email accounts for forensic imaging.

The digital forensics firm ultimately found 2,593 relevant documents totaling 12,467 pages – over 12,000 pages more than the defendants had previously produced and also determined that “four separate system optimization and computer cleaning programs were run” (including CCleaner, aka “Crap Cleaner”) on one defendant’s laptop. These programs were loaded onto his laptop and executed on July 22, 2014 – just six days after the filing of the plaintiff’s motion – and resulted in the deletion of “over 50,000 files”. For that and other apparent instances of spoliation of data among the defendants, the plaintiff requested monetary sanctions, an adverse inference instruction and terminating sanctions.

Judge’s Ruling

With regard to the duty to preserve, Judge Grewal stated that “Once upon a time, the federal courts debated exactly when the duty to preserve documents arises. No more. “The duty to preserve evidence begins when litigation is `pending or reasonably foreseeable.’”

Finding that the defendants “were on notice of foreseeable litigation well before spoliation occurred”, that their “spoliation occurred with the required culpable mindset” and that they “failed to produce thousands of documents that contained key terms that the parties designated as relevant to the litigation”, Judge Grewal ruled that “In sum, sanctions are warranted. The only question is what kind.”

Ultimately, Judge Grewal awarded “expenses and fees in this discovery dispute under Fed. R. Civ. P. 37(b)(2)(C)” of $212,320 and granted the request for an adverse instruction that the unproduced material may be deemed to support the plaintiff’s contentions. He also ruled that “Defendants’ prior counsel also must be sanctioned for improperly certifying Defendants’ discovery responses, and for subsequently failing to intervene even after ‘obvious red flags’ arose, such as Defendants’ failure to produce incriminating documents CVT obtained from their third parties.” Also, based on information that the defendants had “stiffed on the bill” for the digital forensics firm, Judge Grewal ruled that “Defendants shall show cause why they should not face further sanctions for this failure.”

Judge Grewal, however, declined to recommend terminating sanctions “in light of public policy and the sufficiency of monetary sanctions and an adverse jury instruction”.

So, what do you think? Should the request for terminating sanctions have been granted? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Are You as “E-Savvy” as You Need to Be in Your “E-Disclosure” Process?: eDiscovery Best Practices

Craig Ball’s Ball in Your Court blog is always an excellent read, even when he writes it “across the pond” over in London. His latest post discusses how “fighting the last war” will eventually cost you when you come across an “e-savvy” opponent.

In Craig’s post, Girding for the E-Savvy Opponent, he mentions that he is presenting the keynote topic opening the Information Governance & eDiscovery Summit conference in London and how, while he was there, they were celebrating the 70th anniversary of VE day. I’ve heard him say before that “Generals are always prepared to fight the last war”, which he analogizes to technology and “e-disclosure” (which is what they call eDiscovery across the pond). Imagine if we were still trying use mounted cavalry to fight against armored tanks? It would be a disaster. As he notes, “In e-disclosure, we still fight the last war, smug in the belief that our opponents will never be e-savvy enough to defeat us.”

Craig notes that “Our old war ways have served so long that we are slow to recognize a growing vulnerability. To date, our opponents have proved unsophisticated, uncreative and un-tenacious.” He observes how our tech-challenged opponents “make it easy” and that he has “more than once heard an opponent defend costly, cumbersome procedures that produce what I didn’t seek and didn’t want with the irrefutable justification of, ‘we did what we always do.’”

But, that won’t always be the case. Craig predicts that “our once tech challenged opponents will someday evolve into Juris Doctor Electronicus.” When those tech challenged opponents evolve into e-savvy opponents, you can expect that they will (among other things): “demand competent search”, “insist on native production”, “compel transparency of scope and process”, “shrewdly use sampling to expose failure” and “demand competence, but not overreach”. With regard to that last point, Craig observes that “E-savvy counsel succeeds not by overreaching but by insisting on mere competence – competent scope, competent processes and competent forms of production. Good, not just good enough.”

Defenses against the e-savvy lawyer may include “the Luddite judge who applies the standards of his or her former law practice to modern evidence” or a strategy “to embed outmoded practices in the rules and to immunize incompetence against sanctions”. But, those won’t work forever. With virtually all evidence today “born electronically”, best practices for handling such evidence cannot be ignored forever. Someday, you will have to face e-savvy opponents on a regular basis, will you be ready?

As usual, Craig has numerous insightful observations in his post, I’ve referenced several of them here, but don’t want to fully steal his thunder, so I recommend you check out his post here.

So, what do you think? Is your organization still “fighting the last war” or are they prepared to deal with an “e-savvy” opponent? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Free Trojans with Your Document Production: eDiscovery Trends

By “trojans”, I mean “malware”, not the other type of “trojans”… 🙂

An Arkansas lawyer representing three Fort Smith police officers in a whistleblower case is seeking sanctions after his computer expert found malware on an external hard drive supplied in response to a discovery request, according to a story by the Northwest Arkansas Democrat Gazette.

According to the story, Attorney Matthew Campbell in North Little Rock has been representing three current and former Fort Smith police officers in the lawsuit since January 2014. He requested emails from the Fort Smith Police Department, and Sebastian County Circuit Judge James O. Cox ordered on May 9, 2014, that they be provided to Campbell as part of discovery in the case. The documents were produced in June 2014. It’s how they were produced that aroused Campbell’s suspicion.

Douglas Carson, the attorney representing Fort Smith and its Police Department, sent Campbell a computer hard drive with the production by Federal Express. According to the story, Campbell said the defendants normally had provided him with requested documents via email, the U.S. Postal Service or through a cloud-based Internet storage service.

So, Campbell decided to have his information technology expert, Geoff Mueller of Austin, Texas, check out the drive first. Guess what he found? Four “Trojans,” one of which was a duplicate.

A “trojan” or “trojan horse” appears to be a legitimate program which unleashes the malware when you are tricked into running it. They can be quite tricky as I reported a few years ago when it happened to me.

“One would have kept my Internet active even if I tried to turn it off, one would have stolen any passwords that I entered in, and the other would have allowed the installation of other malicious software,” Campbell said. “It’s not like these are my only clients, either. I’ve got all my client files in my computer. I don’t know what they were looking for, but just the fact that they would do it is pretty scary.”

In an affidavit filed with the motion Friday, Mueller stated: “Upon informing Mr. Campbell of the presence of these Trojans, he provided me with information that the Fort Smith Police Department claimed to be running a secure system with real-time virus and malware protection. In my experience, if the FSPD system is actually as described, these Trojans would not exist on the system.”

Mueller said the placement of the Trojans in a subfolder named “D:Bales Court Order,” and not in the root directory, “means the Trojans were not already on the external hard drive that was sent to Mr. Campbell and were more likely placed in that folder intentionally with the goal of taking command of Mr. Campbell’s computer while also stealing passwords to his account.”

In addition to the malware found on the drive, Campbell’s motion for sanctions alleges that entire email accounts were deleted, that emails which could have been recovered were purged from the system, and that emails which were previously provided in response to Freedom of Information Act (FOIA) requests had improper deletions. Campbell also states in the motion that the police department’s IT specialist attended a convention ten days after the court granted Campbell’s motion to compel evidence last May. According to Campbell, the expert took classes on secure data deletion, whistleblower investigation and monitoring employee activity, but did not take classes offered on eDiscovery and preservation of evidence.

Campbell is asking for a default judgment for his clients and that the defendants be held in criminal contempt of court, among other sanctions.

So, what do you think? Do you check data produced to you for the presence of malware? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Has the Law Firm Holding Your Data Ever Suffered a Breach? You May Never Know.: eDiscovery Trends

In February, we discussed a report about data breach trends in 2014 and how those trends compared to data breaches in 2013. That report provided breach trends for several industries, including the healthcare industry, which suffered the most breaches last year (possibly because stolen health records are apparently worth big money). But, according to a recent report, you won’t see any trends for law firms because the legal profession almost never publicly discloses a breach.

According to a recent article in The New York Times (Citigroup Report Chides Law Firms for Silence on Hackings, written by Matthew Goldstein), the “unwillingness of most big United States law firms to discuss or even acknowledge breaches has frustrated law enforcement and corporate clients for several years.” This information was according to a recent internal report from Citigroup’s cyberintelligence center that warned bank employees of the threat of attacks on the networks and websites of big law firms.

“Due to the reluctance of most law firms to publicly discuss cyberintrusions and the lack of data breach reporting requirements in general in the legal industry, it is not possible to determine whether cyberattacks against law firms are on the rise,” according to the report, a copy of which was reviewed by The New York Times and discussed in Goldstein’s article.

Issued in February, the report (according to Goldstein’s article) included several observations, such as:

  • It is “reasonable to expect law firms to be targets of attacks by foreign governments and hackers because they are repositories for confidential data on corporate deals and business strategies”;
  • Bank employees “should be mindful that digital security at many law firms, despite improvements, generally remains below the standards for other industries”;
  • Law firms are at “high risk for cyberintrusions” and would “continue to be targeted by malicious actors looking to steal information on highly sensitive matters such as mergers and acquisitions and patent applications.”

According to the article, the bank’s security team also “highlighted several ways hackers had intruded on law firms, by directly breaching their systems, attacking their websites or using their names in so-called phishing efforts to trick people into disclosing personal information”. As a result, Wall Street banks are putting pressure on law firms to do more to prevent the theft of information and are also demanding more documentation from them about online security measures before approving them for assignments.

The report mentioned a handful of law firms who had suffered reported hacks, which apparently led to Citigroup’s distancing itself from the report and stop distributing it.

“The analysis relied on and cited previously published reports. We have apologized to several of the parties mentioned for not giving them an opportunity to respond prior to its publication in light of the sensitive nature of the events described,” said Danielle Romero-Apsilos, a Citigroup spokeswoman.

While law firms apparently aren’t publicly disclosing breaches, they are apparently choosing cyber liability insurance at an increased rate. We will discuss that on Monday.

Thanks to Sharon Nelson and her always excellent Ride the Lightning blog for the tip – her post regarding the story is here.

So, what do you think? How much information do you know about your outside counsel’s security measures? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscoveryDaily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

California Has an Opinion about Attorney Blogging Too – eDiscovery Trends

Last week, we reported on an updated proposed opinion in California that required that attorneys in that state better be sufficiently skilled in eDiscovery, hire technical consultants or competent counsel that is sufficiently skilled, or decline representation in cases where eDiscovery is required (after reporting on the original proposed opinion back in April). Now, the California State Bar Standing Committee on Professional Responsibility and Conduct (COPRAC) has turned its attention to another relatable topic for me – blogging (by attorneys, of course).

COPRAC has released Proposed Formal Opinion Interim No. 12 0006, which considers: Under what circumstances is “blogging” by an attorney subject to the requirements and restrictions of the Rules of Professional Conduct and related provisions of the State Bar Act regulating attorney advertising? At its Dec. 5, 2014 meeting, COPRAC tentatively approved Proposed Formal Opinion Interim No. 12 0006 for a 90 day public comment distribution, due to expire on March 23rd, 2015 at 5pm PST.

The opinion digest states:

1.     Blogging by an attorney is subject to the requirements and restrictions of the Rules of Professional Conduct and the State Bar Act relating to lawyer advertising if the blog expresses the attorney’s availability for professional employment directly through words of invitation or offer to provide legal services, or implicitly through its description of the type and character of legal services offered by the attorney, detailed descriptions of case results, or both.

2.   A blog that is a part of an attorney’s or law firm’s professional website will be subject to the rules regulating attorney advertising to the same extent as the website of which it is a part.

3.     A stand-alone blog by an attorney that does not relate to the practice of law or otherwise express the attorney’s availability for professional employment will not become subject to the rules regulating attorney advertising simply because the blog contains a link to the attorney or law firm’s professional website.

The opinion also includes a statement of facts analyzing four examples of attorney blogs and which ones are subject to Rule 1-400 of the Rules of Professional Conduct of the State Bar of California. For more information and where to direct comments, click here.

So, what do you think? Should other states have similar rules about attorney blogging? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscoveryDaily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

New California eDiscovery Competence Proposed Opinion Has Been Revised – eDiscovery Trends

Last April, we reported on a new proposed opinion in California that required that attorneys in that state better be sufficiently skilled in eDiscovery, hire technical consultants or competent counsel that is sufficiently skilled, or decline representation in cases where eDiscovery is required. Now, that opinion has been revised and the comment period has been reset.

The California State Bar Standing Committee on Professional Responsibility & Conduct has released a new version of the Proposed Formal Opinion Interim No. 11-0004, which is designed to establish an attorney’s ethical duties in the handling of discovery of electronically stored information. Now, the first page of the opinion states:

“An attorney’s obligations under the ethical duty of competence evolve as new technologies develop and become integrated with the practice of law. Attorney competence related to litigation generally requires, among other things, and at a minimum, a basic understanding of, and facility with, issues relating to e-discovery, including the discovery of electronically stored information (“ESI”). On a case-by-case basis, the duty of competence may require a higher level of technical knowledge and ability, depending on the e-discovery issues involved in a matter, and the nature of the ESI. Competency may require even a highly experienced attorney to seek assistance in some litigation matters involving ESI. An attorney lacking the required competence for e-discovery issues has three options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation. Lack of competence in e-discovery issues also may lead to an ethical violation of an attorney’s duty of confidentiality.”

The proposed ethics opinion still includes the hypothetical situation discussed in the original version in which a lawyer agrees to opposing counsel’s search of his client’s database using agreed-upon terms with that lawyer mistakenly thinking that a clawback agreement offered by opposing counsel is broader than it is, and will allow him to pull back anything, not just protected ESI, so long as he asserts it was “inadvertently” produced. The remainder of the proposed opinion discusses the attorney’s duties regarding ESI, including the duty of competence and the duty of confidentiality.

The clock is reset and the committee is requesting comments on the revised opinion now through April 9 (by 5pm Pacific time). For more information and where to direct comments, click here.

So, what do you think? Will other states adopt similar ethics opinions? Please share any comments you might have or if you’d like to know more about a particular topic.

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