for Lorman

Robert D. Brownstone, Esq.

March 19, 2019

THESE MATERIALS ARE MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF CURRENT LAW AND PRACTICES.

THEY ARE NOT TO BE REGARDED AS LEGAL ADVICE.

THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK ADVICE OF COUNSEL.

© 2019

Version with Live Links Available from Presenter

Legal Ethics in the Era of Social-Media, BYOD, “the Cloud,” Data Breaches and eDiscovery

Agenda/Outline

2

Ethics and related concerns re:

I. Social-Media

II. Lawyers as Employers & Employees –

BYOD, COPE and Webmail

III. Overall Data-Security in our “Cloud” Era

IV. eDiscovery Issues – more (as far as we get)

CONCLUSION/Q-AND-A

I. Social-Media

3

Sedona Conference, Primer on Social Media (2d ed.

July 2018) (free registration required to use link)

GREAT Cal. State Bar resource page at this link

(linking to California & non-California opinions)

NYSBA SOCIAL MEDIA ETHICS GUIDELINES (3d ed. 5/11/17)

• Reisman, Can You Tweet That? law360 (5/12/17) (via subscription)

Brownstone Bibliographies and Slides at:

• <tinyurl.com/SocialMediaEthicsLatestFWLPP> (lit.-focused; incl. judges section)

• <tinyurl.com/SocialMediaeDiscoLatestFWLPP>

• <tinyurl.com/Soc-Med-eDisco-10-15-18>

I. Social-Media (c’t’d)

4

A. Lawyers

• 1. Advertising/Solicitation – Ex: COPRAC Op. No. 2012-186:

• announcing victory without accompanying offer regarding availability for professional employment

• generally not a Cal. RPC 1-400 communication (“message or offer . . .

concerning the availability for professional employment”)

• “who wants to be next?”

• sounds like inapt prediction and solicitation

• “my client is delighted”

• a prohibited testimonial

I(A)(1). Social-MediaLawyer Solicitation (c’t’d)

5

COPRAC Op. No. 2012-186 (c’t’d):

• “tell your friends to check out my site”

• must say “Advertisement”

• “call me for a free consultation”

• YES a 1-400 communication

• “published an article... Let me know if you would like a copy.”

• OK

See also NYCLA Prof’l Ethics Comm., Formal Op. 748(3/10/15) (LinkedIn “Attorney Advertising” disclaimer)

See generally this Cal. State Bar “Advertising” page(linking to many states’ ethics opinions)

I(A)(1). Social-MediaLawyer Solicitation (c’t’d)

6

Compare NYSBA Social Media Ethics Guidelines (3d ed. 5/11/17):

• 1. ATTORNEY COMPETENCE

• Guideline No. 1.A: Attorneys’ Social Media Competence

• 2. ATTORNEY ADVERTISING

• Guideline No. 2.A: Applicability of Advertising Rules

• Guideline No. 2.B: Prohibited use of Term “Specialists” on Social Media

• Guideline No. 2.C: Lawyer’s Responsibility to Monitor or Remove Social

Media Content by Others on a Lawyer’s Social Media Page

• Guideline No. 2.D: Attorney Endorsements

• Guideline No. 2.E: Positional Conflicts in Attorney Advertising

I. Social-Media (c’t’d) –A. Lawyers

7

• 2. Blogging

• COPRAC Op. No. 2016-196 (11/16/16) . . . 4 scenarios . . . .

• Question is whether each subject to ad rules:

• If directly or implicitly “expresses . . .

availability for professional employment” MAYBE

• Integrated part of website TO SAME EXTENT AS SITE

• Stand-alone blog (re: law) IF AVAILABILITY EXPRESSED

• Stand-alone blog (non-law) ONLY IF DETAILED ANNOUNCE-

[Cf. NYSBA Op. 967 (6/5/13)] MENT OF AVAILABILITY

I(A). Social-Media –Lawyers (c’t’d)

8

• 3. No Legal Advice

• See, e.g., NYSBA Guideline 3 (“FURNISHING OF

LEGAL ADVICE THROUGH SOCIAL MEDIA”):

• Guideline No. 3.A: Provision of General Information

• See my sample disclaimers on Slides 9-10, also

reflecting my concern for vicarious liability . . .

I(A)(3). Social-Media – Lawyers (c’t’d) –Sample Disclaimers

9

• Facebook

• Facebook trickier than others . . . “About” . . . “Work and Education” . . . input into first “Position” field disclaimer ending with “. . . at”

I(A)(3). Social-Media – Lawyers (c’t’d) –Sample Disclaimers (c’t’d)

10

Twitter (“Edit Profile”):

LinkedIn profile:

I(A). Social-Media –Lawyers (c’t’d)

11

• 4. Preservation/Spoliation by Client

• Deactivation Decisions, incl.

• Crowe v. Marquette Transp., 2015 U.S. Dist. LEXIS 9198 (E.D. La. 1/20/15) (deactivation vs. deletion)

• Chapman v. Hiland Operating, 2014 WL 2434775 (D. N.D. 5/29/14) (deactivation)

• Gatto v. United Airlines, 2013 WL 1285285 (D. N.J. 3/25/13) (adverse inference)

• “Clean up”

• Lester v. Allied Concrete (Va. Cir. Ct. 2011), linked from p. 3 of above Ethics Biblio

I(A). Social-Media –Lawyers (c’t’d)

12

• 4. Preservation/Spoliation by Client

• Deletions (texts too):

• Painter v. Atwood, 2014 WL 1089694 (D. Nev. 3/18/14)

• Entities too:

• Congregation Rabbinical College of Tartikov v. Village of Pomona, 188 F. Supp. 3d 333 (S.D.N.Y. 5/25/16) (Facebook post and texts deleted)

• Tyler Beas, Don’t delete that post! . . . (11/29/12)

I(A). Social-Media –Lawyers (c’t’d)

13

• 5. Communications with Others

• See generally Social Angst, law360 (9/19/16)

• a. Adversary Litigant, Witness, etc.

– cannot do anything forbidden in some other mode (i.e., if represented).

• No friend requests??

• Different if person represented as opposed to unrepresented

• No deception/pretext re: unrepresented

» Ore. Bar, Formal Op. No. 2013-189 (Feb. 2013)

I(A)(4). Social-Media –Lawyers’ Communics. (c’t’d)

14

Different views re: unrepresented person:

• OK if no deception; need not disclose reason

• N.Y. Guideline 4.B Comment (citing ABCNY Formal Op. 2010-2)

• Must disclose reason, i.e. litigation connection

• Mass. Bar, Op. 2014-5 (potential adverse party) (citing Phila.

Bar Ass’n, Op. 2009-2; S.D. Cty. Bar Ass’n, Op. 2011-2)

• N.H. Bar Association Ethics Comm., Advisory Op. No. 2012-

13/05 (6/20/13) (honesty re: potential witness)

I(A)(4). Social-Media –Lawyers’ Communics. (c’t’d)

15

• b. Jurors• Lots of rules and opinions re: lawyers who research them

• Be careful with LinkedIn profile-surfing.

• Compare: NYCLA COPF, Op. No. 743 (5/18/11); and ABCNY, Formal Op. 2012-2 (“Jury Research and Social Media”) (6/4/12) with:

• ABA, Formal Op. 466 (4/23/14)

• Oracle Am., Inc. v. Google, ORDER RE INTERNET AND SOCIAL MEDIA SEARCHES OF JURORS (N.D. Cal. 3/25/16) (Alsup, J. (parties ultimately consented to ban provided as an alternative in this Order)

I(A)(4)(b). Social-Media – Lawyersre: jurors, etc. (c’t’d)

16

• Re: Linked In – BE VERY CAREFUL

• NO = transparent profile surfing/searching

• “Profile Viewing Options”

• How does "Who's Viewed Your Profile – Overview"

(& other pages to which it links) (last visited 2/19/18)

• Bottom line:

• anonymize ’self; and maybe also (to play safe) . . . .

• only surf without being logged in

17

B. Jurors themselves – research & communics.

• See generally Section 2 of above Biblio

• See also NCSC, Social Media and the Courts and Internet for Lawyers, Legal Ethics Opinions Related to Attorneys' Use of Social Media Profiles for Investigative and Background Research

• In California statutes

• criminal penalties removed from Penal Code §166

• contempt penalties remain possible

I. Social-Media (c’t’d)

18

From <http://www.courts.ca.gov/partners/juryinstructions.htm>:

I(B). Social-Media –Jurors (c’t’d)

I. Social-Media (c’t’d)

19

C. Judges – See generally this NCSC resource (re: 11 states)

• 1. Own Activity

• See generally Section 3 of above Biblio. See also CAL. JUDGES ASS’N Judic. Ethics Comm., Op. 66, ONLINE SOCIAL NETWORKING (11/23/10):

• 1) May a judge be a member of an online social networking community?

• “very qualified yes”

• 2) May a judge include lawyers who may appear before the judge in the judge’s online social networking?

• “very qualified yes”

• 3) May a judge include lawyers who have a case pending before the judge in the judge’s online social networking?

• “no”

20

• 1. Judge’s Own Activity (c’t’d)

• Law Offices of Herssein & Herssein v. U.S. Automobile Ass’n, 229 So.3d 408 (Fla. 3 Dist. 10/2/17), review granted, 2017 WL 6281070 (12/11/17)

• Judge refused to recuse herself just because had Facebook-friended an attorney of record

• Affirmed because “degree of intimacy among Facebook ‘friends’ varies greatly”

• 2. Lawyer Connecting with a Judge?

• N.C. Bar, 2014 Formal Ethics Op. 8 (1/23/15)

• “lawyer may accept an invitation from a judge to be a ‘connection’ on a professional networking website, and may endorse a judge”

• “lawyer may not accept a legal skill or expertise endorsement or a recommendation from a judge.”

I(C). Social-Media –Judges (c’t’d)

II. Lawyers as Employers & Employees –Email, BYOD & Social Media

21

Brownstone eWorkplace Saga:

• Most Recent Version (Episode VI)<tinyurl.com/eWorkplaceMaterialsLatestFWLPP>

• Links to prior 5 versions/episodes

THE key issue: policy/ies’ language [Technology

Acceptable Use Policy (“TAUP”), BYOD policy, etc.]

As to BYOD, see Sedona Conf., Commentary on BYOD:

Principles and Guidance for Developing Policies and Meeting

Discovery Obligations (May 2018) (free registration required to use link)

II. Webmail, BYOD &Social Media (c’t’d)

22

A. Invasion as a Liability Issue

• Under ECPA Titles I & II (Wiretap Act & SCA)

• Possible criminal and civil exposure for:

• Undisclosed key-logging

• Brahmana v. Lembo, 2009 WL 1424438 (N.D. Cal. 5/20/09) (e-mail)

• Logging in as current employee (and then reading messages)

• Van Alstyne v. Electronic Scriptorium, 560 F.3d 199 (4th Cir. 3/18/09) (e-mail)

• Pietrylo v. Hillstone Rest. [Houston‘s], 2009 WL 3128420 (D. N.J. 9/25/09)(MySpace)

II(A). Webmail/BYOD/Social Media –Invasions under ECPA (c’t’d)

23

• Logging in as (ex-)employee and reading or surfing:

• Lazette v. Kulmatycki, 2013 WL 2455937 (N.D. Ohio 6/5/13) (SCA – but not Wiretap – claim survived motion to dismiss; Gmail server was “facility” accessed via Blackberry)

• Brautigam v. East Whittier Sch. Dist., Minute Order, No. BC541803 (Super. Ct. L.A. Cty. 1/5/15)

• Mike Sprague, East Whittier City School District to pay $275,000 to teacher to settle privacy lawsuit, Whittier Daily News (3/26/15)

• Inadvertently receiving and reading texts

• Sunbelt Rentals v. Victor, 2014 WL 4274313 (N.D. Cal. 8/28/14) (iCloud synch confusion; all claims dismissed)

• But case law all over the place [see slide 24 here]

II. Lawyers as Employersand Employees

24

B. (Ex-)employee’s own Attorney-Client Privilege (ACP)

• ACP vs. TAUP (No-Employee-Expectation-Of-Privacy) Biblio

• Ex: Holmes v. Petrovich, 119 Cal. Rptr. 3d 878 (3 Dist. 1/13/11):

• Communications via work email NOT confidential because employee:

• knew of company TAUP as to no personal use

• warned that company would monitor

• warned of NEEOP

• “[A]kin to consulting her lawyer in her employer’s conference room, in a loud voice, with the door open, so that any reasonable person would expect that their discussion of her complaints about her employer would be overheard by him.”

II(B). Employee’s Own ACP (c’t’d)

25

But case law split; at times ACP & ethics trump TAUP• Ex: Fiber Materials, Inc. v. Subilia, 974 A.2d 918 (Me. 7/16/09)

Some recent TAUPO decisions:

• Rissetto v. County of Clinton, 2018 WL 3579862 (N.D.N.Y. 7/25/18) (pro-TAUP; public sector; 4th Amendment; NOT an ACP case)

• Kreuze v. VCA Animal Hosps., 2018 WL 1898248 (D. Md. 4/20/18) (pro-ACP)

• U.S. v. Nordlicht, 2018 U.S. Dist. Lexis 17630 (E.D.N.Y. 2/2/18) (pro-TAUP; private employer; 4th A.)

Tips: Broad but clear TAUP language (don’t expressly mention ACP) & training; & investigation protocol

See also ABA, Formal Op. 11-460 (8/4/11)

II(B). Inadvertence & Notification (c’t’d)

26

As to inadvertence and recipient’s duties, see content and links in

Metadata/Privilege slides, including these Cal. resources:

• Rico v. Mitsubishi, 42 Cal. 4th 807 (12/13/07) (stop reading; notify)

• COPRAC, Formal Op. 2013-188 (5/14/13) (same even if from

third party and ostensibly crime and/or fraud discussed)

• McDermot Will & Emery v. Super. Ct., 217 Cal. Rptr. 3d 47 (Cal. App. 4

Dist. 4/18/17) (no matter the message’s route, i.e., many forwardings)

II. Webmail/BYOD/Social Media (c’t’d)

27

C. eDiscovery rock and hard-place?

• 26 states’ statutes (since 2012) forbidding

asking (applicant or) employee for login/

password to own web, social-media or email

• NCSL compilation of those laws and legislation

• About half have “public domain” exception

• ***Most every one has “investigation” exception***

II(C). eDiscovery rock and hard-place? (c’t’d)

28

• See also some courts’ expectations as to litigating parties preserving and producing from BYOD devices and ex-officers’ personal Gmail accounts:

• Small v. Univ. Med. Ctr. of S. Nev., 2014 WL 4079507 (D. Nev. 8/18/14)

• Puerto Rico Telephone v. San Juan Cable, 2013 WL 5533711 D. P.R. 10/7/13) (ex-employer knew for years officers used own Gmail to manage business)

III. Overall Data-Security in our “Cloud” Era

29

Law firms big targets!

A. Overview of Ethical Duties of Confidentiality/Competence

• Duty of Confidentiality often broader than attorney-client privilege

• Giesel, The Difference Between Confidentiality and the Attorney-Client Privilege (3/19/15)

• ABA Model Rule 1.6 – Confidentiality of Client Info.

• 1.6(a) – Must protect & not disclose confidential client info. unless:

• Implied authorization

• Client consents

• Another exception applies

• ABA Model Rule 1.6 (c’t’d)

• 1.6(c) – Must make reasonable efforts to prevent:

• Inadvertent or unauthorized disclosure of client information

• Unauthorized access to information re: client representation

• Rule 1.6(c) added in 2012 and adopted in > 21 states

• Peter Norman, BCC’ing Your Clients: Not Just

A Bad Idea, But Unethical? ReplyToSome (6/6/16)

30

III(A). EthicalDuties

III(A). EthicalDuties

31

• 1.6(c), Comment 18:

• As to unauthorized access or disclosure:

“reasonable” factors include info’s sensitivity

• As to transmission of communications:

“[a] client may require the lawyer to

implement special security measures”

• 1.6(c), Comment 19:

• beyond our scope: potential additional steps

under state and federal privacy laws

III(A). EthicalDuties

32

ABA, Model Rule 1.1 (2012) – Attorney Competence

ABA, Model Rule 1.1 Comment 8

• “keep abreast of changes . . . ., including the benefits

and risks associated with relevant technology”

> 31 states’ ethics rules address technology competence

• Robert Ambrogi, 13 15 17 18 20 21 23 24 25 26 27 28 29 30 31 States

Have Adopted Ethical Duty of Technology Competence, LawSites (3/8/17)

III(A). EthicalDuties

33

Cal. Ex. of duty of competence includes re: technology –

COPRAC, Formal Op. No. 2010-179 (12/16/10)

• To act competently, must take “appropriate steps” to ensure:

Use of technology does not subject confidential

information to undue risk of unauthorized disclosure

Security measures are sufficient to protect client confidentiality

Attorney must continue to monitor sufficiency of security measures

III(A). EthicalDuties

34

Cal. Op. 2010-179 applied these rules:

• Cal. Bus. & Prof Code §6068(e)(1) (maintain inviolate client

confidences and preserve at every peril client secrets)

• Cal. RPC 3-100 (don’t reveal §6068 info. w/o informed consent)

• Cal. RPC 3-110 (competence; learning & skill)

• Cal. Evid. Code §917(b) (electronic communications OK)

• Cal. Evid. Code §952 ("confidential communication”

with client; attorney-client privilege)

III(A). EthicalDuties

35

NEW! Data Breaches opinion

• Formal Op. 483 (10/17/18) (“Lawyers’ Obligations After an

Electronic Data Breach or Cyberattack”), as discussed in:

• Gwenn Barney, ABA Issues New Cybersecurity Ethics Rules for

Lawyers, Cyber News: Cyber Law News and Bytes (10/23/18)

• By: Emma Cueto, ABA Says Attys Must Inform Clients After

A Data Breach, Law360 (10/17/18) (subscription needed)

III. B. Mobility/Travel Tips —Lawyers on the go

36

Don’t identify client verbally in conversation

Use privacy screen/filter

Avoid public computers

Avoid public hotspots if can (or else use

service like iPass to find legitimate ones)

III. C. VariousMeasures

37

Network protection

• firewalls, independent vulnerability

assessments & pen(etration) tests, etc.

Secure disposal of anything with memory

Central vs. local storage

38

1. Encryption [ e.g., via forced TLS ] required?

• ABA, Formal Op. 477R, Securing Communication

of Protected Client Information (5/22/17)

2. “Netiquette”

• “multiple audiences”

• metadata and redaction

• auto-complete and “reply all”

III. D. EmailConcerns

39

Bcc’s

• Own client may “reply all”

• NYSBA Op. 1076 (12/8/15) (“Email; blind copy of

correspondence; communication with client”)

• Peter Norman, BCC’ing Your Clients: Not Just

A Bad Idea, But Unethical? ReplyToSome (6/6/16)

III(D)(2). Email Concerns –“Netiquette” (c’t’d)

III. E. “Cloud” Drill-Down

40

1. “Reasonable care” [expansion on III(A)]

• Resources

• ABA, Cloud Ethics Opinions Around the U.S.

(≈ 20 states’ opinions), linking to:• ABA, Cloud Computing / Software as a Service [SaaS] for Lawyers

• AbacusNext, THE CLOUD: Helping Attorneys Meet

Ethical Duties Associated with Technology (8/22/18)

• Dennis Kennedy, 2017 Cloud Computing, ABA (12/1/17)

• NYSBA Comm. on Prof. Ethics, Op. 1019 (8/6/14) (“Confidentiality; Remote Access to Firm's Electronic Files”)

• NYSBA Comm. on Prof. Ethics, Op. 1020 (9/12/14) (“Confidentiality; use of cloud storage for purposes of a transaction ”)

• Black, NY bar on ethics of cloud computing – again, LLRX (11/10/14)

Redux• Use of cloud computing in law has become commonplace

• State bars permit cloud use comporting with ethical duties

• Lawyers should exercise reasonable care as to duties of confidentiality, competence (incl. tech.) and supervision

III(E)(1). “Cloud” – Reasonable Care (c’t’d) – Diligence Duty

41

42

Centralized vs. ad hoc in, e.g., Dropbox or in Box

Malpractice/negligence vs. ACP waiver . . .

No per se waiver of attorney-client privilege (ACP) ?

Cf. Ashley Madison Customer Data Security Breach Litig., 2016 U.S. Dist.

LEXIS 57619 (E.D. Mo. 4/29/16) (P’s couldn’t use data hacked by others)

With one exception, no case law to support waiver view . . .

III(E)(1). ReasonableCare (c’t’d)

43

That one scary outlier decision

• Harleysville Ins. v. Holding Funeral Home,

2017 WL 1041600 (W.D. Va. 2/9/17)

• L.M. Brooks & P.A. Nielson, Privilege Waiver: Is Your File-

Sharing Site a Public Park Bench? Data Sec. L. Blog (3/15/17)

• BUT MAGISTRATE’S OPINION

REJECTED BY DISTRICT COURT JUDGE !

• See 2017 WL 4368617 (10/2/17)

III(E)(1). ReasonableCare (c’t’d)

44

Questions

• What should law firm say/do if CLIENT (suggests) storing

unencrypted and/or non-password protected file(s) in Cloud?

• Has client consented under ABA Rule 1.6(c) Comment 18

(“client . . . may give informed consent to forgo security

measures that would otherwise be required by this Rule”)?

III(E)(1). ReasonableCare (c’t’d)

• State Bar of Cal., COPRAC, Formal Op. No. 2012-184 (Virtual Law Office, a/k/a VLO)

• Special diligence required during the selection of [SaaS/Cloud] vendor:

• Credentials of vendor

• Data Security

• Ability of vendor to transmit info. across jurisdictional boundaries

• Ability of Attorney to supervise vendor

• Vendor’s Terms of Service

• Continued diligence throughout relationship (regular reassessments)

• Appropriate disclosures to the client

III(E). 2. Supervision Duty

45

III(E). 3. Data Security

• So, now with the reversal of that odd W. Va. decision,

NOT per se unethical to store sensitive information

• See above re: Attorney-Client Privilege

• Permitted to store data with third-party cloud service

• NO ethical obligation to ensure system would be invulnerable

• Agreement with cloud service should contain provisions

as to maintaining confidentiality and security

46

III(E)(3). “Cloud” Data Security (c’t’d) –Some Practical Tips

47

Do physical inspection

21 Standards (from a vendors’ association):

• Legal Cloud Computing Association, LCCA Security Standards, including:

• Data Retention Policy

• Tracking

• Ownership of Data

• Availability of Data at end of relationship/vendor

Those are similar to tips in ABA item from Slide 39 above

48

• Shift notice of breach obligation?

• Special concerns

• ** CLIENT’S OWN SPECIAL REQUIREMENTS **

• HIPAA – incl. employer as plan sponsor• Covered entity example: OHSU notifies patients of

‘cloud’ health information storage, OHSU (7/28/13)

• As downstream possessor of client Protected Health Information (PHI)

• Gramm-Leach-Bliley

III(E)(3). “Cloud” Security –Some Tips (c’t’d)

III(E). 4. “Cloud” –Other Tips (c’t’d)

49

Info. Management and Litigation-Prep.

• Sync schedules if can, as to live and backed up data?

• Severability?

• Need to meet “possession/custody/control” duty in discovery

• Actually mention eDiscovery/preservation (LIT-holds)?

• See also Guidance Software, a Dropbox Premier Partner

• Compare X1 products, solutions and partners

IV. ElectronicDiscovery

50

INTRO/RESOURCES:

• Bibliography

• ITLawToday.com (F&W EIM Blog)

• Electronic Discovery Case Database

In addition to issues addressed above . . .

IV. eDiscoveryIssues (c’t’d)

51

A. Competence

• COPRAC, FORMAL Op. No. 2015-193 (6/30/15)

• Seems like more of a generic competence hypo

• 3 options if lack eDiscovery competence:

• 1) acquire learning/skill;

• 2) get technical consultant or competent counsel; or

• 3) decline case

IV(A). eDiscovery Issues (c’t’d) –Competence (c’t’d)

52

• OP. No. 2015-193 (c’t’d)

• Sanctions awarded in HM Electronics v. R.F. Technologies, 2015 WL

4714908 (S.D. Cal. 8/7/15) (later vacated in part due to settlement):

• Leonard Lee, New Rules on Proportionality &

Spoliation in E-Discovery, Thomson Reuters

Legal Current (2/10/16) [podcast interview of me ]

• Recommind (now OpenText), Blockbuster Sanctions Order Spotlights the

Importance of eDiscovery Competence, Mind Over Matters (8/12/15)

• Albert Barsocchini, The Duty of eDiscovery

Competency in a Nutshell, Night Owl (3/23/16)

IV(A). eDiscovery Issues (c’t’d) –Competence (c’t’d)

53

Florida• RPC 4-1.1 – “Competence”, at .pdf p. 7

(1/1/17) (Comment re: tech competence and safeguarding confidential eCommunications)

• RPC 6-10.3(b) – “Minimum Continuing Legal Education Standards,” at .pdf p. 40(1/1/17) (3 additional credit hours every 3 years – “in approved technology programs”)

IV(A). eDiscovery Issues (c’t’d) –Competence (c’t’d)

54

Local rules (some include “judicial expectations”)

from ≈ 60 U.S. fed. cts. (e.g., 7th Cir., N.D. Cal., etc.)

6 more decisions re: ethical violations

• linked and summarized in this excellent resource:

• Austin & DeSouza, What Every Attorney Should Know

About eDiscovery in 2017, cloudnine, at 57-60 (4/12/17)

IV. eDiscoveryIssues

55

B. A-C Privilege & Atty.-Work-Product Protection

• Claw-back Stipulations (502 Blues) – Redux

• FRCP 26(b)(5)(B) & state claw-back procedures (e.g., CCP§ 2031.285)

• FRE 502 – substantive rules [ > 12 states have

own versions of 502; see Appendix F in this

Sedona Conference resource (free registration needed) ]

• Resources available on request

IV. eDiscoveryIssues

56

C. FRCP re: ESI changed 12/1/15 in 3 ways:

• Proportionality

• Spoliation Sanctions

• Efficiency/Timing/Cooperation

• Resources

• Article (12/1/15 @ midnight)

• Slide Deck re: Ethics, etc. (1/20/16) (w./ many links,

including to various federal courts’ local rules)

CONCLUSION/Questions

57

Q&A

Robert D. Brownstone

• Bio | Biblio (articles, press & speeches, Oh My!)

• Twitter ("@eDiscoveryGuru") | Facebook | LinkedIn | Google+

• Blog (“IT Law Today”)

• 650.335.7912 or rbrownstone@fenwick.com

Please visit F&W’s EIM, Privacy/InfoSec & Employment GroupsTHESE MATERIALS ARE MEANT TO ASSIST IN A GENERAL

UNDERSTANDING OF CURRENT LAW AND PRACTICES.

THEY ARE NOT TO BE REGARDED AS LEGAL ADVICE.

THOSE WITH PARTICULAR QUESTIONS

SHOULD SEEK ADVICE OF COUNSEL.