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The eDigest • A Publication of the Arizona Paralegal Association • November 2016 1
THE EDIGEST ARIZONA PARALEGAL ASSOCIATION
An Affiliate of the National Association of Legal Assistants, Inc. Vol. 7, Issue 11 November 2016
INSIDE:
Arizona Expands Securities Exemptions for New Companies (page 20,21)
You Have Too Many Children. If You Get Pregnant You’re Fired. (page 23,24)
Rule Changes Help Define State Bar Mission (page 32)
And more… November 9th Webinar: Anatomy & Physiology 101 (p.. 26)
The eDigest • A Publication of the Arizona Paralegal Association • November 2016 2
August 2016
INSIDE THE EDIGEST
APA Board of Directors 3
APA Announcements 4
APA Member News 5
Annual Holiday CLE Luncheon & Charity Drive 10-12
100th Anniversary of the Yavapai County Courthouse 25
November Webinar 26
Certified Paralegal Review Course 31
Tech Tips 37-39
Job Bank 40-41
CLE Webinars & Seminars 44-45
Special Sections Columns
Preparing for Electronic Discover in Litigation
6-9, 13-19
Arizona Expands Securities Exemptions for New Companies
20-21
Florida Becomes First Mandatory Bar in Nation to Require Attorneys Take Technology-Related CLE Courses
22
You Have Too Many Children. If You Get Pregnant You’re Fired.
23-24
LEARN FROM OUR SISTER COURTS –Top Five eDiscovery Cases for October, 2016
28-30
Rule Changes Help Define State Bar Mission
32
APA’s New Website 33-34
Do you have enough willpower to create your dreams?
35
Law Firm's TV Ad Irks Defense Bar 36
The BRIEF 42-43
Upcoming Events!
November Anatomy & Physiology 101 CLE
November 9th, 2016 (p. 26)
APA’s Annual Holiday CLE Luncheon & Charity Drive
December 7th, 2016 (p. 10)
The eDigest • A Publication of the Arizona Paralegal Association • November 2016 3
P.O. Box 26879
Phoenix, AZ 85068
www.azparalegal.org
THE EDIGEST
The Digest is the official publication of the Arizona Paralegal Association. It is published monthly on the first of each month and e-mailed to our members. Articles,
columns, and editorials appearing in The Digest express the views of the authors and should not be construed as the opinions of the Arizona Paralegal Association or its
Board of Directors.
GIVE US YOUR OPINION
The Digest welcomes letters to the editor or opinion pieces for publication. Letters and opinion pieces should be typed and preferably submitted electronically.
Opinion pieces are limited to 1,500 words and letters to 700 words. Submissions are reviewed and printed at the discretion of the Editor of The Digest and the APA
Board of Directors. Editors reserve the right to reject submissions or condense for clarity, style and space considerations. Letters must be signed to verify authorship, but names will be withheld upon request. Authors of opinion pieces will have their names published.
Letters and opinion pieces should be submitted to: Teresa Romero, CP (602) 650-2322; [email protected]
TO ADVERTISE IN THE DIGEST
Advertising rates and information are available from Irene Winterburn, CP (602) 798-5426; [email protected].
SERVING ON THE NEWSLETTER COMMITTEE
Please contact Teresa Romero, CP (602) 650-2322
THE ARIZONA PARALEGAL ASSOCIATION
The Arizona Paralegal Association ("APA") was formed in 1977 and is a nonprofit professional corporation for paralegals. The APA became an affiliate association of the National Association of Legal Assistants, Inc. in 1988. The members are paralegals employed by Arizona law firms, freelance paralegals, paralegals employed in
corporations or government agencies, students enrolled in paralegal training programs and other persons interested in supporting the APA and paralegal profession.
The APA was organized to elevate and maintain high professional standards and ethics of the legal profession; provide and promote continuing legal education to
paralegals; maintain open communications and working relationships between APA and its members and representatives of local and state bar associations; and further the interests of paralegals by gathering, receiving, studying and disseminating information concerning paralegals.
President Irene Winterburn, CP
602-321-9252
Past President Narinda Greene, ACP
602-235-7174
NALA Liaison Holly McGee
602-263-4420
Second Vice President Marci Seek
602-263-4411
First Vice President Seth U. Nwosu, BA, CP
973-932-6031
Newsletter Chair Teresa Romero, CP
602-650-2322
Membership Chair Karen Hall Flaaen
602-264-9224
Public Relations Chair Misty Dornseif
Treasurer
Lisa Peterson, CP
602-271-0183
Recording Secretary Laura H. Sexton, EA
602-532-9199
ARIZONA PARALEGAL ASSOCIATION BOARD OF DIRECTORS
The eDigest • A Publication of the Arizona Paralegal Association • November 2016 4
Arizona Paralegal Association Upcoming Events
Upcoming APA Board Meetings
Tuesday, November 1, 2016, 5:45-7:00 p.m., Ballard Spahr LLP,
1 E. Washington, Suite 2300,
Phoenix, AZ 85004.
Monday, December 5, 2016, 5:45-7:00 p.m.,
Arrogant Butcher Restaurant,
2 E. Jefferson Street,
Phoenix, AZ 85004.
*RSVP required – contact Irene Winterburn, 602-798-5426 or
email [email protected].
Anyone is welcome to attend these meetings. We'd love to have you!
Upcoming CLE’s and Events
Check out our online events calendar for
CLE Seminars and other events:
http://www.azparalegal.org/calendarofevents.html
NOVEMBER - Anatomy & Physiology 101 for Personal Injury Paralegals
Wednesday November 9, 2016
For more information see page 33
DECEMBER - Critical Thinking
Wednesday December 7, 2016
For more information see page 10
The eDigest • A Publication of the Arizona Paralegal Association • November 2016 5
Arizona Paralegal Association Member News!
YOU GOTTA’ HAVE FRIENDS…
and we’d like to meet them!
ANNOUCING OUR REFER-A-FRIEND PROGRAM
Any current member who refers a paralegal friend to the APA,
will receive one free CLE webinar and a shout out in the eDigest.
Tell your friends to include your name in the “Referral Information” box
on the application form so we can give you the credit you deserve!
After all, everything is better when you have a friend with you, so invite yours to
become members of the APA! You’ll be glad you did!
Did you know?
If you need copies from a Superior Court case
file, instead of getting a paper copy and paying
the per page cost, you can request a CD of the
entire case. The CD costs only $28 so in the
long run, you may save your client some money.
Also, you’ll save a tree!
Membership Update
We hope you are enjoying the Job Bank Alerts,
eDigest and other announcements the APA
electronically sends out to its members. If you
have any questions about your membership or
would like to provide us with updated contact
information, please update your info on our new
website, or you can email or call me. We don’t
want to lose track of anyone, so before you move,
please let me know!
Karen Flaaen
2016 Membership Chairperson
Please join us in welcoming the following new members:
Catherine Brunner
Diane Kennedy
Ebony Meads
Tina Sanchez
The eDigest • A Publication of the Arizona Paralegal Association • November 2016 6
The largest cost in litigation is discovery, an ever-
growing percentage of which is electronic discovery
("e-discovery"). A 2012 study by the RAND Institute
for Civil Justice found that the median cost for
producing electronically stored information ("ESI") in
the cases studied was $1.8 million.1 And these
expenses are only increasing. In response, the Federal
Rules of Civil Procedure (FRCP) have been amended
several times in recent years, with the latest amend-
ments taking effect on December 1, 2015. These
changes have already begun to significantly impact the
scope and costs of discovery, including e-discovery--
particularly due to the renewed emphasis on the need
for "proportionality."
Given the prevalence of electronic data and the myriad
ways in which it is stored, combined with the shifting
landscape of federal discovery rules, it is critical that
attorneys and their clients educate themselves on the
applicable rules and their practical implications for
ESI and e-discovery in litigation.
Electronic Discovery Rules
The 2015 Committee Notes to the amended FRCP
acknowledge the explosion of information and ESI,
as well as advancements in technologies that are
occurring. For instance, the notes to amended Rule 26
(b)(1) state that "[c]omputer based methods of
searching such information continue to develop, par-
ticularly for cases involving large volumes of
electronically stored information," and "[c]ourts and
parties should be willing to consider the opportunities
for reducing the burden or expense of discovery as
reliable means of searching ESI become available."
The 2015 amendments to the FRCP were designed to
accomplish three primary goals: (1) clarify the
consequences for failing to preserve ESI; (2) stress
the importance of the proportionality principle in
resolving discovery disputes; and (3) expedite
litigation. As they relate to e-discovery, the amended
rules can be grouped according to changes that affect
cooperation, the pace of discovery, proportionality,
cost allocation, responses and objections to document
requests, and failure to preserve.2
COOPERATION
Amended Rule 1 provides that the civil rules are to be
"construed, administered, and employed by the court
and the parties to secure the just, speedy, and inexpen-
sive determination of every action and proceeding."
The 2015 Committee Notes on this rule, as amended,
emphasize that the "parties share the responsibility to
employ the rules in the same way," and that
"[e]ffective advocacy is consistent with--and indeed
depends upon--cooperative and proportional use of
procedure." The 2015 Committee Notes further advise
that Rule 1 neither creates a new or independent
source of sanctions nor abridges the scope of any other
of the Federal Rules.
DRIVING THE PACE OF DISCOVERY
Unnecessary delays, lack of planning, or non-
cooperation at the outset of a case can result in (Continued on page 7)
Preparing for Electronic Discovery in Litigation
The eDigest • A Publication of the Arizona Paralegal Association • November 2016 7
inefficiency and expense. The amendments to Rules 4,
16, 26, and 34 address these problems by shortening
timelines and requiring parties to identify and discuss
discovery issues early in the course of litigation.
Amended Rule 4(m) reduces the time permitted to
serve a defendant with a summons and complaint from
120 days to 90 days. If service has not occurred within
the prescribed period, then the court must either
dismiss the action without prejudice or order that
service be completed by a certain date. The 2015
Committee Notes advise that this change, together
with the shortened times for issuing a scheduling order
set by amended Rule 16(b)(2), will reduce delay at the
beginning of litigation.
To further reduce delay at the outset of a case, amend-
ed Rule 16(b)(2) requires courts to issue a scheduling
order 90 days after any defendant is served, or 60 days
after any defendant makes an appearance, whichever
is earlier. Issuance of the scheduling order may be
delayed, however, if the court finds good cause.
Amended Rule 16(b)(1), aimed at encouraging pro-
ductive discussions during the scheduling phase,
removes the former rule's reference to conferences
being conducted by "telephone, mail, or other means."
The 2015 Committee Notes explain the deletion of
this language, particularly discussions by mail, by
stating that "[a] scheduling conference is more
effective if the court and the parties engage in direct
simultaneous communication."
Amended Rule 26(f)(3) adds "preservation" and
"privilege" as topics to discuss at the Rule 16
conference. The amended rule requires parties to
discuss whether they will seek an order under Federal
Rule of Evidence 502--a valuable but underutilized
rule that allows courts to prevent waiver of privilege.
A coordinating amendment to Rule 16(b) explicitly
allows scheduling orders to include terms related to
preservation and Rule 502 orders.
To further facilitate discussions during the Rule 26(f)
conference, amended Rule 26(d)(2) permits the parties
to serve document requests under Rule 34 before the
conference, but no earlier than 21 days after service of
the summons and complaint. This change to the
former rule, which prohibited any discovery requests
before the Rule 26(f) conference, allows the parties to
address issues presented by the document requests at
the Rule 26(f) conference. The early Rule 34 requests
will be considered served at the first Rule 26(f)
conference.
Finally, amended Rule 16(b) allows a scheduling
order to include terms requiring the parties to confer
with the court before bringing any discovery-related
motions.
PROPORTIONALITY
Discovery under former Rule 26(b)(1) was
extraordinarily broad: parties could obtain information
"regarding any non-privileged matter that is relevant
to any party's claim or defense," including any
information that "appears reasonably calculated to
lead to the discovery of admissible evidence." With
the increasing volume of data created and maintained
by companies, significant time and money can be
spent responding to discovery requests. When the
parties have similar discovery exposure, they each
have an incentive to narrow discovery without court
intervention. Such self-regulation does not exist,
however, when the parties' discovery obligations are
asymmetrical. Former Rule 26(b)(2)(C) required the
court to limit discovery when it found that the "burden
or expense of the proposed discovery outweighs its
likely benefit," but discovery limitations were rarely
raised by the court on its own and, when objections to
scope were raised by a producing party, courts were
reluctant to impose restrictions.
Under the amended rule, the Committee made a few
significant changes to combat the problems associated
with asymmetric discovery. Amended Rule 26(b)(1)
limits discovery to relevant, non-privileged
information that is "proportional to the needs of the
(Preparing for Electronic … Continued from page 6)
(Continued on page 8)
The eDigest • A Publication of the Arizona Paralegal Association • November 2016 8
case." The rule lists relevant proportionality
considerations as "the importance of the issues at stake
in the action, the amount in controversy, the parties'
relative access to relevant information, the parties'
resources, the importance of the discovery in resolving
the issues, and whether the burden or expense of the
proposed discovery outweighs its likely benefit."3 As
amended, Rule 26(b)(1) no longer includes language
to the effect that discovery may include any
information "reasonably calculated to lead to the
discovery of admissible evidence."4
COST ALLOCATION
Former Rule 26(c)(1) authorized protective orders to
preclude unduly burdensome or expensive discovery.
Although not stated in the former rule, courts could
issue protective orders that allocated some of the cost
to the requesting party. Because the former rule was
silent on cost allocation, parties sometimes disputed
the court's authority to shift costs. Amended Rule 26
(c) (1) states that the protective order may include
"specifying terms, including time and place or the
allocation of expenses, for the disclosure of
discovery." As the 2015 Committee Notes explain,
"[e]xplicit recognition [of cost shifting] will forestall
the temptation some parties may feel to contest this
authority." The Committee was careful to note,
however, that this change does not alter the standard
practice of having the responding party bear the cost
of responding to discovery requests.
RESPONSES AND OBJECTIONS TO DOCU-
MENT REQUESTS
Parties responding to Rule 34 production requests
typically list a litany of objections and often fail to
specify whether any of the stated objections will be
relied on as grounds to withhold any of the documents
sought be the requesting party. Amended Rule 34
requires responding parties to state the specific
grounds on which the party is objecting and whether
any documents are being withheld on the basis of a
given objection. The Committee intended for this
change to facilitate meaningful meet-and-confer
discussions between the parties.
FAILURE TO PRESERVE
The ability of courts to sanction a party for the
spoliation of evidence is limited under the FRCP.
Former Rule 37(e) permitted such sanctions, but only
when a party failed to provide electronically stored
information in violation of a court order. Because
former Rule 37(e) applied to such a narrow set of
circumstances, courts turned to their inherent authority
or state laws to sanction parties for their failure to
preserve evidence resulting in disparate standards for
what constitutes a party's duty to preserve and wide-
ranging sanctions for violations of that duty. Without
clear guidance on what sanctions might be imposed
for the spoliation of evidence, companies often over-
preserved data to avoid the risk of severe penalties.
To provide clarity and consistency on sanctions for
failure to preserve, amended Rule 37(e) was
completely rewritten. Under amended Rule 37(e), the
court may impose sanctions on an offending party for
failing to preserve ESI where the ESI (1) "should have
been preserved in the anticipation or conduct of litiga-
tion"; (2) is lost "because a party failed to take
reasonable steps to preserve it"; and (3) "cannot be
restored or replaced through additional discovery."
If these three conditions are met, the court will
determine whether or not another party is prejudiced
by the offending party's loss of the ESI. Under
amended Rule 37(e)(1), the court may impose
"curative measures" on the offending party based on a
finding that another party was prejudiced from losing
the information, but such measures may be "no greater
than necessary to cure the prejudice." Under amended
Rule 37(e)(2), if the court determines that the
offending party "acted with the intent to deprive an-
other party of the information's use in the litigation"--
regardless of prejudice--then the court may (a) pre-
sume that the lost information was unfavorable to the
offending party, (b) instruct the jury that it may or
must presume the information was unfavorable to the
offending party, or (c) dismiss the action or enter a
default judgment.
(Preparing for Electronic ...Continued from page 7)
(Continued on page 9)
The eDigest • A Publication of the Arizona Paralegal Association • November 2016 9
Thus, under the amended rule, sanctions are not
permitted if evidence is lost despite a party's
reasonable efforts to preserve it. Further, even if a
party failed to try to preserve information, sanctions
are not automatic. Under amended Rule 37(e)(1), a
court may order "curative measures," but only upon a
finding that another party was prejudiced from losing
the information. More severe sanctions, such as an
adverse inference or the entry of default judgment,
are permitted under amended Rule 37(e)(2), but only
when the court finds that a party "acted with the intent
to deprive another party of the information's use in the
litigation."
***
The amendments to FRCP encourage early and
enhanced case management and cooperation, which
should provide an opportunity for counsel who are
familiar with a client's electronic systems and well-
versed in the real world issues of discovery to obtain
substantial savings in time and money. The amend-
ments relating to proportionality and sanctions may
result in a reduction in the costs associated with overly
broad discovery and over-preservation of data. It is
important to note, however, that the amended rules do
not altogether eliminate the reality of asymmetric
discovery. The notes acknowledge that one party may
have more information than another and will therefore
often bear a heavier burden in responding to
discovery. Nevertheless, the amendments' focus on
cooperation and proportionality in e-discovery
provides a springboard by which to engage with the
other side early on in discovery. It also encourages
active judicial management of discovery to resolve
disputes.
Litigation Methods
LITIGATION HOLDS
The most common litigation method involving
e-discovery is the litigation hold. A litigation hold is a
request to preserve electronic evidence, usually in the
form of a letter or email. Litigation holds are triggered
"[o]nce a party reasonably anticipates litigation."
Zubulake V, 229 F.R.D. 411, 431 (S.D.N.Y. 2004);
see Pension Comm. of Univ. of Montreal Pension
Plan v. Banc of Am. Sec., LLC, 685 F. Supp. 2d 256,
461 (S.D.N.Y. 2010); see also 29 C.F.R. 1602.14
(requiring preservation of "evidence [that] may be
relevant to future litigation"). The point when litiga-
tion becomes "reasonably anticipated" can depend on
a variety of factors, but some actions--such as an
employee filing a charge with the EEOC--can trigger
the duty to preserve. See Scalera v. Electrograph Sys.,
Inc., 262 F.R.D. 162, 171 (E.D.N.Y. 2009). Generally,
a litigation hold notice should be issued when, based
on the known facts and circumstances, counsel know
of (or reasonably anticipate) (1) a lawsuit or other
dispute, claim, or contested matter that has been (or
will be) commenced by or against the corporation; (2)
a subpoena or other request for documents or infor-
mation that has been (or will be) directed to the
corporation; or (3) a formal or informal regulatory
investigation that has been (or will be) commenced
against the corporation.
When informing a client about a litigation hold, an
attorney should make sure to send a formal, written
litigation hold notice that clearly defines the scope of
information requiring preservation. This requires an
attorney to have an understanding of the relevant time
frame, the important individuals, and the key docu-
ments that may be relevant to the case, while also
considering proportionality regarding the client's
burden and expense in preserving data. Because of
this, an attorney should also make efforts to gather
information about the client's technological capacities
so as to anticipate any e-discovery issues that may
arise in the case. The hold letter should describe the
nature of the litigation and all criteria detailing the
information to be preserved, identify likely locations
of relevant information, outline steps to be taken for
preserving the information, and convey the signifi-
cance of the obligation to the recipients. At a
minimum, the letter should be sent to the key
witnesses, data custodians, Human Resources,
Records Management, and IT departments, though an
attorney may wish to send the letter to others in the
organization as well.
(Preparing for Electronic … Continued from page 8)
(Continued on page 13)
The eDigest • A Publication of the Arizona Paralegal Association • November 2016 10
The eDigest • A Publication of the Arizona Paralegal Association • November 2016 11
Why are Critical Thinking Skills Central to the Job Duties of
Paralegals?
Think independently
Make better decisions
Solve problems systematically
Think more creatively
Increase self-reflection
What are the Benefits of Critical Thinking?
Detect inconsistencies and common mistakes in reasoning
Recognize your own assumptions and biases
Identify the importance and relevance of various ideas
Reach well-reasoned conclusions and solutions
Cost: $35 APA Members; $50 Non-members
#IUsedToThink…
… but now I THINK!
Critical Thinking SkillsCritical Thinking Skills By Rich Groves, Professional Legal Career Coach and Trainer, Polsinelli, St. Louis, MO,
with Teresa Romero, CP, Polsinelli, Phoenix
WednesdayWednesday
December 7, 2016December 7, 2016
Arizona Biltmore Resort
2400 E. Missouri Avenue
Phoenix, AZ 85016
Schedule of Events:
11:00-11:30 am: Networking
and Holiday Mocktails
11:30 am: Holiday Buffet Lunch
Opens
11:55 am: Introduction of APA
Holiday Charity
This event qualifies for 1 CLE
Join us at this lively and entertaining event we examine our current thinking
skills, and learn to apply critical thinking skills in our lives.
The eDigest • A Publication of the Arizona Paralegal Association • November 2016 12
The Arizona Para lega l Assoc iation has se lected the fo l lowing Charity for our Annua l Hol ida y CLE Luncheon and Charity Drive :
501 S. 9th Avenue
Phoenix, AZ 85007
(602) 254-7450
www.icmaz.org
HOW TO HELP: 1. Financial Donation: Make your secure donation directly
to ICM Food & Clothing Bank:
https://donate.firstgiving.com/secure/donate/b7e59c62-edd0-
11df-ab8c-
4061860da51d?parentPath=http://www.icmaz.org/Donations/
Donations.aspx
2. In-Kind Donations: ICM Food & Clothing Bank could
use our help with:
Non-perishable food items (examples: peanut butter, rice,
beans, soup)
New or used clothing, shoes, socks, and all other clothing
articles for women, men and children (We always run
short of children’s and men’s clothing and shoes)
Small household items such as dishes, pots, and linens
Toiletries (shampoo, conditioner, lotion, soap, body wash,
laundry detergent, deodorant, toothpaste, toothbrushes).
Baby Items (Diapers - sizes 1-5, pull-ups, formula, baby
food, baby cereal)
Empty prescription/medication bottles (push down/ and
turn top) for toiletries
In-kind donations of food, clothing and material goods are
accepted until 2:30 at the back parking lot – just south of the
building on 9th avenue – Monday through Friday.
About ICM:
ICM Food & Clothing Bank (formerly known
as Interfaith Cooperative Ministries) meets the
needs of more than 100 families and
individuals every day, six days a week. Our
mission is "providing an immediate response to
basic human needs." Essential items such as
food boxes (that last up to several days),
clothing, toiletries, household goods are given
to clients who come to ICM; a free medical
clinic once a month is also provided, and
screening day by day for blood pressure and
other basic issues. The majority are working
poor, many are elderly on fixed incomes (some
raising grandchildren), and some are disabled
mentally and/or physically. Some are veterans.
Nobody is turned away who needs help.
ICM began in 1983 as an interfaith
collaboration among local Christian and Jewish
congregations, and has expanded to include
many supporters of civic organizations,
schools, and corporate employee groups,
foundations and corporations.
ICM is one of four major partners in St. Mary’s
Food Bank Alliance. ICM is proud to report
that 94% of its donations go directly to program
services, while just 5.5% are used for
administrative and fundraising costs.
The eDigest • A Publication of the Arizona Paralegal Association • November 2016 13
In addition, an organization can compile a data source
catalog as a guide for counsel to key data systems that
may be subject to legal holds. This can be a compila-
tion of fact sheets on key data sources likely to be
relevant across multiple litigations and investigations.
There may be a core set of applications typically
involved in the routine cases and more specialized
systems and applications which need to be analyzed
for more complex matters. Typical categories for a
data source catalog includes information relating to
data sources, business areas, key contacts, key
“functionalities, inputs, outputs, data ranges, retention
policies, data preservation, and backup schedules,
among others.
If a party fails to preserve electronic information, the
aggrieved party can seek sanctions for spoliation
under certain circumstances. See Section 1, supra,
and Section 5.c., infra.
METHODS IN EMPLOYMENT LITIGATION
Employment litigation, which may occupy as much as
25 percent of an organization's active litigation case
load, presents discovery challenges because the
employer controls nearly all of the relevant evidence.
The employer's burden is large because relevant data
and documents can touch every operational aspect of a
company, and it is often difficult to identify and gather
this information until more is known about the
plaintiff and the claims. Not only are employment
records usually maintained exclusively by the
employer, but emails contained in the company's
email system, which is controlled by the employer,
can be the only contemporaneous record of the facts
and the opinions expressed about the issues in dispute.
Because the cost of reviewing and producing the
relevant data is often high relative to the potential
damages at issue, employers sometimes settle cases
early, even before an evaluation of merit is made. |
The employer should first consider what data or
documents are potentially relevant to the litigation and
will be appropriate to include in a litigation hold and
to consider for collection, review and production.
Relevant data sources may include:
Emails: Emails between an employee and
management are often used offensively and
defensively in employment cases. Emails may
|also provide evidence of employee misconduct
or poor performance.
Computer data: Internet records, printing
records, copying or duplication records, telephone
records, instant message or chat room records, and
data recovered from an employee's work computer
may all contain relevant information.
Data from personal digital assistants (PDAs),
cell phones or "smart phones": These devices
may provide a key source of data if they were not
synched with an organization's email system, and,
even if they were synched, there may be
communications between such devices that
did not go through the email system. Text
messages, if retained by the organization, may
also be a relevant source of discoverable ESI.
Personnel files: Information contained in
personnel files is often relevant in employment
litigation. Care should be taken to identify and
collect all of the relevant information, as
components of the personnel files may be
spread across various offices and supervisors.
Operational data: Operational data such as
parking records, building entrance or egress
records, video surveillance, computer log-on
and log-off data, elevator access and log-on
data for individual software programs may be
important in defending claims in employment
litigation.
Administrative data: Administrative materials
such as training verifications and manuals, time-
keeping, benefits, payroll and performance
information are frequently relevant in employment
litigation. These materials are often maintained in
different departments and not centrally located
within the organization.
The home computers or other personal device: Defendants sometimes may obtain discovery of
information contained on a plaintiff 's home com-
puter or other personal devices. Depending on the
circumstances, data from the home computers or
(Preparing for Electronic … Continued from page 9)
(Continued on page 14)
The eDigest • A Publication of the Arizona Paralegal Association • November 2016 14
other personal devices of other employees may
also be relevant.
In addition to the data sources listed above, employers
should consider the data sources listed in the Federal
Judicial Center's "Pilot Project Regarding Initial
Discovery Protocols For Employment Cases Alleging
Adverse Action" (Nov. 2011), available at http://
www.fjc.gov/public/pdf.nsf/lookup/DiscEmpl.pdf/
$file/DiscEmpl.pdf, which introduced pretrial
procedures for certain types of federal employment
cases in order to encourage more efficient and less
expensive discovery. These protocols, which are
currently being tested in select U.S. district courts,
create a new category of information exchange,
replacing initial disclosures with initial discovery
specific to employment cases alleging adverse action.
Practical Information System Policies and
Practices
Companies should maintain a written document
retention policy that guides how long the company
retains certain information, whether in paper or
electronic form. This policy should allow for the
retention of documents and ESI for at least the length
of any relevant statute of limitations. As an example,
Section 1602.14 of the Department of Labor
regulations requires that "[a]ny personnel or
employment record . . . shall be preserved by the
|employer for a period of one year from the date of
the making of the record or the personnel action
involved, whichever occurs later." 29 C.F.R. 1602.14
(as amended in 2012).
The Sedona Conference offers four key guidelines for
determining an email retention policy.5 First, an
organization should develop a team approach to
reflect the input of functional and business units,
ideally spearheaded by an interdisciplinary team
designed to assess the entity's email retention policy.
Second, the team should develop a current
understanding of the email retention policies actually
in use within the entity, with the goal being to identify
any practical gaps between existing retention policies
and actual practices. Third, it should select features
for updates or revisions of the email retention policy
with the understanding that a variety of approaches
can be valid, depending on varying sizes, complexi-
ties, and policy priorities. And finally, any technical
solutions should meet the functional requirements
identified as part of the policy development and
should be carefully integrated into existing systems.
An employer should be mindful of special challenges
surrounding the preservation and collection of data for
terminated or former employees. The employer should
ensure good communication among its human
resources (HR), information technology (IT), and
records management departments so that any
requirement to retain data of a terminated employee is
captured. The employer should consider establishing a
protocol whereby its IT department confirms with its
records management or HR department before wiping
a hard drive, recycling a laptop computer or deleting
an email box for a terminated employee. An
increasingly sensitive area is the conflict between the
employer's desire to redeploy the laptops or work-
stations of employees who leave the company and the
need to preserve potentially relevant data.
Companies should also develop a comprehensive
written policy dealing with the treatment of "disaster
recovery data," or information preserved for use in the
event that an emergency damages or destroy an
organization's primary data retention system. Such a
policy should provide "rational and defensible
guidelines" for managing stored information, and
should be created after considering the relevant
business, regulatory, tax, information management,
and infrastructure needs of the organization. Sedona
Principles, cmt. 1.b. In addition to these general
guidelines, an organization should also take into
account relevant laws or regulations requiring the
preservation of certain types of data; some heavily
regulated industries may face specialized rules
governing the retention of electronic data.
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The eDigest • A Publication of the Arizona Paralegal Association • November 2016 15
Preparing for the Rule 26(f) or Initial Scheduling
Conference
The FRCP require that preparation for e-discovery
begin before the parties have served discovery. By
the time a Rule 26(f) or initial scheduling conference
approaches, relevant ESI should already have been
preserved by parties and their counsel if they have
taken the appropriate steps as recommended above,
such as issuing a litigation hold notice. After taking
such reasonable steps to preserve ESI, counsel should
also create an organized discovery plan and contact
opposing counsel to discuss ESI issues prior to the
Rule 26(f) or initial scheduling conference. Early
discussions of ESI issues can help to limit unnecessary
discovery disputes and motion practice down the line,
as well as head off potential motions for sanctions
based on alleged failure to properly preserve ESI.
Counsel should make early and diligent preparation
to adequately represent their clients' positions with
respect to ESI, including by becoming familiar with
their clients' information systems before the Rule 26(f)
meet and confer. Some of the issues to discuss at
this early stage of the litigation include: discovery
topics and time period; key personnel likely to have
discoverable information; identification of accessible
and inaccessible sources of ESI, as well as the burden
and cost associated with retrieving and reviewing such
information; preservation of ESI; form (or forms) in
which ESI will be produced (including metadata), as
well as any unique data types or proprietary software
involved; ESI collection and review protocol,
including date limitations, deduplication, search terms,
and/or predictive coding (technology assisted review);
protocols for addressing privilege and work product;
and protocols for confidentiality or privacy concerns
(particularly data privacy laws and protective orders)
with respect to potential exchange of ESI.
Failure to prepare for and engage in these meaningful
discussions with opposing counsel regarding
e-discovery and the preservation, review, and
production of ESI can damage counsels' credibility
and their clients' interests in subsequent discovery
disputes.6 Diligent consideration of these issues early
on in the case prepares counsel and their clients to
engage in and respond to e-discovery. Moreover,
well-informed counsel at Rule 26(f) and initial
scheduling conferences will be better equipped to
convince the court and opposing parties of the
reasonableness of their position, while also building
credibility and avoiding costly over-preservation or
production. Putting e-discovery issues in front of the
court early in the case also helps apprise the judge of
anticipated obstacles that may arise through the
discovery process with regard to ESI.
Preparing Requests and Responding to Discovery
Requests Involving Electronic Data
PREPARING REQUESTS
Despite the fact that the changes to amended Rule 26
(b)(1) have been in effect for only several months,
there are already hundreds of opinions citing the
amended rule. Not surprisingly, parties have been
quick to make proportionality arguments on the
propriety of their discovery requests and objections,
and a body of case law on the issue is quickly build-
ing. In some instances, courts are engaging in
proportionality analyses without either party having
raised the issue. A few months in, some themes are
beginning to emerge from the case law.
First, the rule change has caused many courts to more
closely examine the fit between the discovery being
sought and the stakes at issue in the litigation. Indeed,
that was the stated purpose of the rule change. As
some courts are rightly pointing out, proportionality
has long been a legitimate consideration in managing
discovery. And, as those courts note, amended Rule
26(b)(1) places a renewed emphasis on proportionali-
ty.7 The amendment relocates and emphasizes the
proportionality factors and "encourage[s] judges to be
more aggressive in identifying and discouraging dis-
covery overuse." This, some courts have concluded,
makes proportionality considerations much harder to
ignore than before. A common theme in the cases is
that the courts appear to be taking the amended rule as
a directive to be tougher on overreaching discovery
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The eDigest • A Publication of the Arizona Paralegal Association • November 2016 16
requests.
Another emerging theme relates to how courts are an-
alyzing proportionality in light of the relevance of the
information being sought. For instance, some courts
have suggested that proportionality is a threshold issue
to be resolved before even relevance or privilege is
considered while others focus on relevance and pro-
portionality in relation to each other.8 What is clear,
however, is that courts are analyzing proportionality in
conjunction with and, sometimes, before relevance
arguments.
What has largely been absent from the cases so far is
any quantitative weighing of the cost of discovery
against the amount in controversy. And, finally, courts
continue to analyze burden objections on a request-by-
request basis, and they continue to urge parties to
attempt compromise prior to litigating discovery
disputes.
Third, courts continue to analyze discovery burden in
light of relevancy and necessity, although now with a
clear focus on proportionality. However, some courts
do not seem inclined to engage in a proportionality
analysis in a vacuum. Rather, the requested discovery
is often weighed against the relevance it has to the
litigation and how necessary it is to the parties'
abilities to assert their claims and defenses. What is
new is the emphasis courts are giving to the fit
between the discovery being sought and the stakes at
issue in the litigation. As a result, counsel should be
ready to argue proportionality both as a stand-alone
matter and in the broader context of relevance and
necessity.
Finally, it is a good practice to raise discovery
disputes early in litigation, and proportionality issues
are no different.
CONSIDERATIONS AND EARLY LESSONS
Courts are taking the renewed focus on proportionality
in Rule 26(b)(1) to heart and parties will increasingly
be availing themselves of or defending themselves
against proportionality arguments. As such, there are
some early lessons from the vanguard of proportional-
ity cases.
First, most courts seem disinclined to engage in macro
-level proportionality analyses or even weigh the
amount in controversy against the cost of the discov-
ery sought. Rather, courts seem more inclined to con-
duct a request-by-request proportionality and burden
analysis. And so counsel should be prepared to make
request-specific burden and proportionality arguments.
Likewise, counsel should consider less burdensome
alternatives to responding to discovery requests and be
ready to present those to opposing counsel and the
court.
Second, and related, courts continue to urge compro-
mise on discovery disputes, and they seem to be less
receptive to burden arguments when consideration has
not been given to less-burdensome alternatives.
Indeed, all parties have a duty to cooperate. Though
some of the recent proportionality case law speaks to
whether one party has the burden of proving propor-
tionality or the other,9 courts expect both sides to have
thought about the burden of the discovery being
sought and whether there are less burdensome means
of getting the same information.
RESPONDING TO DISCOVERY REQUESTS
Keyword searches are among the most common
automated tools for fulfilling the obligation to conduct
a diligent search for documents potentially responsive
to a request for production. As technology in the
e-discovery space continues its rapid development,
there has been a great deal of discussion about the
most effective, and most defensible, uses of keyword
searches. Cooperation with an opposing party, of
course, is one way to develop and structure keyword
searches. In addition, there are a number of techniques
or methodologies that may be useful in validating the
effectiveness of keyword searches.
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The eDigest • A Publication of the Arizona Paralegal Association • November 2016 17
The key to developing and properly testing effective
search terms is having a clear purpose for their use. If
the purpose for the keyword search is to identify the
"hot" documents for an investigation (i.e., the needle
in the haystack), then the keyword search should focus
narrowly on specific topics. But if the purpose is to
create a cost-effective and defensible review popula-
tion, then the keyword search should focus on captur-
ing the relevant and material information from the
larger volume of data collected. And if the purpose is
an initial collection, it may be appropriate to use broad
search terms in the first instance, and then employ
narrower search terms later in the process to target
documents that may be responsive to specific
requests.
In addition, designing a keyword search requires
constant balancing of the materiality of issues in a
matter and the risk of being under- or over-inclusive.
For example, a date range or time period restriction
will often be an appropriate way to exclude per se
irrelevant information and avoid over-inclusion.
Similarly, limiting the review population to
information collected from particular company
employees ("custodians" in e-discovery jargon) will
also often be appropriate. But any judgment call must
be made with an eye to maintaining the proportion
between the cost of discovery and the information's
importance to the case. The standard for discovery is
reasonableness--not perfection--and the same is true
for the use of keyword searches in e-discovery.
STRATEGIES FOR DEVELOPING, TESTING
AND USING KEYWORD SEARCHES
Effective Collaboration: Lawyers, especially
at the outset of a legal matter, may not have
sufficient information to identify a full set of
potentially useful search terms. Clients know the
subject matter, the words used to convey key
concepts and nuances in the language employed.
Collaboration with lawyers, clients, e-discovery
experts and, if appropriate, the requesting party in
developing search terms is critical to managing the
risks and costs associated with a large document
review.
Understand the Search Process and
Technology: Developing effective search terms
takes time, effort, diligence, creativity, flexibility
and, above all, sound judgment. It is important to
work with individuals knowledgeable in the use of
search terms in order to understand how best to
test and refine the search terms and how to use the
available technology to its greatest advantage.
Having a well thought out, clear process for
designing and testing a search that takes into
account the available technology may provide
an important strategic advantage if the search is
challenged.
Test and Reevaluate: Remember that the reason-
ableness of any set of search terms often depends
on testing and evaluation of those terms. Develop-
ing keyword searches is an iterative process, and
the initial set of search terms may need to be
expanded, or contracted, over time as the legal
matter develops and more information becomes
available. Be prepared both to consider modifica-
tions to any set of keyword terms and to defend
against attempts to expand or contract search
terms where necessary.
Consider Sampling: If circumstances allow for it,
use sampling on large data sets to help better
define the review population and test search terms.
Experts and technology (usually available at
e-discovery vendors) may help you develop
appropriate sample sizes and random sample
selections.
Consistency in Approach: Consistency and
documentation are key elements to defending any
keyword search process. Parties should record the
search terms they ultimately select for use in the
overall document population and their reasons for
choosing them.
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The eDigest • A Publication of the Arizona Paralegal Association • November 2016 18
RECENT TRENDS IN THE APPLICATION OF
AMENDED RULE 37(E) CONCERNING SPOLI-
ATION SANCTIONS WHEN RESPONDING TO
DISCOVERY REQUESTS
Amended Rule 37(e) was designed to address con-
cerns about the consistency and proportionality of
sanctions. In applying the amended Rule, district
courts are issuing more predictable decisions for those
parties that take "reasonable steps" to preserve their
ESI information. Consequently, courts appear to be
applying amended Rule 37(e) by crafting proportion-
ate, "middle ground" curative sanctions when there is
prejudice but no showing of intent to deprive.10 In
addition, courts to date are not imposing preclusive
sanctions absent a showing that the offending party
acted intentionally and was not merely negligent with
regard to lost ESI.
"CURATIVE MEASURES" UNDER AMENDED
RULE 37(E)(1)
In a recent case in the Northern District of California,
the court imposed "curative measures" as sanctions
under Rule 37(e)(1) where the plaintiff lost certain
electronically stored communications and had made
no effort to preserve documents. Because of the
plaintiff 's "lackadaisical attitude towards document
preservation," the court determined that spoliation had
occurred and the defendant had been prejudiced.
Consequently, the court expanded the scope of
evidence that the defendant would be allowed to
bring to trial and awarded reasonable attorney's fees.11
PRECLUSIVE SANCTIONS UNDER AMENDED
RULE 37(E)(2)
Courts have found that although a judge may impose
the severe measures set out in Rule 37(e)(2) when
there is an intent to deprive--regardless of prejudice--
the court is not required to impose any of these
measures. The bottom line in sanctioning a party is
that the remedy should fit the wrong to be redressed.
Thus, several courts have determined that dismissal of
an action is not an appropriate sanction even when a
party has willfully destroyed data.12
COURTS CONTINUE TO EXERCISE
"INHERENT AUTHORITY"
Consistent with the Advisory Committee's Notes that
the amended Rule forecloses reliance on inherent
authority or state law to determine sanctions, some
courts have declined to impose a sanction under
"inherent authority" where ESI was lost. For example,
one court determined that it could not rely either on
amended Rule 37(e) or on its "inherent authority" to
make an adverse inference instruction where the
offending party was ultimately able to restore and
produce the lost ESI.13 Other courts, however, have
determined that a court's inherent power to sanction
litigants remains even if the standards of Rule 37(e)
are not met; these courts interpret the committee notes
to mean only that a court cannot rely on inherent
authority to impose sanctions expressly prohibited by
amended Rule 37(e), such as dismissal of a case for
merely negligent destruction of evidence.14
However, when evaluating spoliation claims
involving a non ESI tangible document or evidence,
courts have questioned whether they should continue
to rely on "inherent authority" and spoliation case law,
even if the standards differ from the new spoliation
standards established in Rule 37(e). Further, courts
have questioned what constitutes ESI under amended
Rule 37(e), noting that the Rule does not precisely
define the term. For example, one court has inquired
whether videotapes count as ESI,15 and another court
has determined that text messages do constitute ESI.16
COURTS MAY APPLY AMENDED RULE 37(E)
RETROACTIVELY
Recent decisions have been mixed as to whether a
court will apply amended Rule 37(e) retroactively.
For example, one court imposed the previous standard
for assessing the need for spoliation sanctions because
the case had been filed more than two years before the
amended Rule went into effect; the plaintiff was
representing himself pro se; and discovery had already
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The eDigest • A Publication of the Arizona Paralegal Association • November 2016 19
closed before the amendment. Consequently, although
the court determined that the defendants' loss of ESI
was grossly negligent but not intentional, the court
granted the plaintiff's request for mandatory and
permissive adverse inference instructions with respect
to the spoliation of various ESI.17
On the other hand, another court decided to apply
amended Rule 37(e) retroactively in a case that had
been pending for two years, reasoning that because the
amendment to Rule 37(e) is in some respects more
lenient as to the sanctions that can be imposed for
violation of the preservation obligation, there would
be no inequity in applying it.18
In yet another case, the court retroactively applied the
amended Rule 37(e) sanction standard after a prior
ruling granting a sanction order under the preamend-
ment Rule. Accordingly, the plaintiff was able to
vacate an adverse inference ruling shortly before trial
based on the new Rule's restrictions on sanctions in
the absence of a finding that the offending party in-
tended to deprive its adversary of the use of the alleg-
edly lost information.19
As recent cases illustrate, courts are applying each
element of Rule 37(e) to determine whether, in the
court's ultimate discretion, spoliation sanctions are
appropriate. This approach may lead to an increase in
predictability and consistency in the area of spoliation
sanctions as compared to application of the old Rule.
Most significantly, courts are recognizing that an
adverse inference for lost ESI under the amended Rule
is now considered an "extreme remedy for the alleged
spoliation of evidence."20 Such an extreme remedy
now requires a showing of intent to deprive instead of
mere negligence.
Endnotes
1. Rand Institute for Civil Justice, where the money goes: understanding litigant expenditures for producing
electronic discovery 17 (2012).
2. Wai Feng Trading Co. v. Quick Fitting, Inc., 2016 U.S. Dist. LEXIS 77672 (D.R.I. June 14, 2016)
(invoking the policies of the amended FRCP and discussing a number of rules including FRCP 1, 26(b), 26
(f), and 34).
3. See generally Douglas v. Kohl's Dep't Stores, Inc., 2016 U.S. Dist. LEXIS 54782 (M.D. Fla. Apr. 25,
2016) (weighing the proportionality factors listed in Rule 26(b)(1) and denying motion to compel discovery
because the burden of searching the voluminous emails was disproportionate to what was needed in the case).
4. See generally Lifeguard Licensing Corp. v. Kozak, 2016 U.S. Dist. LEXIS 68724 (S.D.N.Y. May 23,
2016) (holding that amended Rule 26(b)(1) cannot be used for unpled claims or defenses).
5. The Sedona Conference WG1, The Sedona Conference Commentary on Email Management: Guidelines
for the Selection of Retention Policy, 8 SEDONA CONF. J. 239, 239 (2007).
6. For example, in Beard Research Inc. v. Kates, 981 A.2d 1175, 1187 (Del. Ch. 2009), the court cautioned
that "if the parties do not focus on the handling of e-discovery in the early stages of a case, the Court is not
likely to be sympathetic when, for example, one party later complains that stringent measures were not
instituted voluntarily by her adversary to ensure that no potentially relevant information was lost." I-Med
Pharma Inc. v. Biomatrix, Inc., 2011 WL 6140658, at *1 (D.N.J. 2011) "highlights the dangers of careless-
ness and inattention in e-discovery." Counsel for the plaintiff in that case failed to adequately educate them-
selves about their client's data systems or the appropriate scope of search terms prior to their Rule 26(f)
conference, resulting in their agreeing "to undertake an enormously expensive privilege review of material
that [was] unlikely to contain non-duplicative evidence." Id. at *6. While the court ultimately permitted the
plaintiff's counsel to avoid their previously agreed-to review, it chastised them for failing to "exercise[] more
diligence before stipulating to such broad search terms, particularly given the scope of the search." Id. at *5.
7. Indeed, proportionality first appeared in the FRCP in 1983. As recent opinions have observed, however,
many courts were not consistently applying proportionality analyses prior to the recent rule change.
8. E.g., Kaseberg v. Conaco, LLC, No. 15CV01637JLSDHB, 2016 WL 3997600, at *2 (S.D. Cal. July 26,
2016) ("The threshold requirement for discoverability under the Federal Rules of Civil Procedure is whether
the information sought is `relevant to any party's claim or defense and proportional to the needs of the
case.'"); Hahn v. Hunt, No. CV 15-2867, 2016 WL 1587405, at *2 (E.D. La. Apr. 20, 2016) (identifying
proportionality as a "threshold" concern).
9. E.g., Kaseberg, 2016 WL 3997600, at *10 ("As Plaintiff has not made a specific showing that the burdens
of production would be minimal, proportional to the needs of the case, and that the requested documents
would lead to relevant evidence, the Court denies Plaintiff's motion to compel responses[.]"); Sheets v.
Villas, No. 8:15-CV-1674-T-30JSS, 2016 WL 4001989, at *3 (M.D. Fla. July 26, 2016) ("Defendants have
failed to file a response showing any relevance to the issues in dispute or explaining why the discovery
sought is proportional to the needs of the case.").
10. Mathew Enter., Inc. v. Chrysler Grp. LLC, No. 13-cv04236-BLF, 2016 WL 2957133 (N.D. Cal. May 23,
2016).
11. Mathew Enter., Inc., 2016 WL 2957133, at *5.
12. See, e.g., Orchestratehr, Inc. v. Trombetta, 2016 WL 1555784 (N.D. Tex. Apr. 18, 2016) (holding that
there is a high bar for imposing sanctions under Rule 37(e)); FiTeq Inc. v. Venture Corp., 2016 WL 1701794
(N.D. Cal. Apr. 28, 2016) (litigants need to prove existence of missing data for FRCP 37(e) sanctions).
13. FiTeq Inc., 2016 WL 1701794, at *3.
14. E.g., Living Color Enter., Inc. v. New Era Aquaculture, Ltd., No. 14-CV-62216, 2016 WL 1105297, at *6
(S.D. Fla. Mar. 22, 2016).
15. McIntosh v. United States, No. 14-CV-7889 (KMK), 2016 WL 1274585, at *31 n.45 (S.D.N.Y. Mar. 31,
2016).
16. Living Color Enter., Inc., 2016 WL 1105297, at *4.
17. Thomas v. Butkiewicus, No. 3:13-CV-747 (JCH), 2016 WL 1718368, at *8 (D. Conn. Apr. 29, 2016).
18. Brown Jordan Int'l, Inc. v. Carmicle, No. 0:14-CV60629, 2016 WL 815827, at *36 (S.D. Fla. Mar. 2,
2016).
19. Nuvasive, Inc. v. Madsen Med., Inc., No. 13CV2077 BTM(RBB), 2016 WL 305096, at *2 (S.D. Cal. Jan.
26, 2016). 20. Accurso v. Infra-Red Servs., Inc., No. CV 13-7509, 2016 WL 930686, at *3 (E.D. Pa. Mar. 11,
2016).
(Preparing for Electronic… Continued from page 18)
Reprinted with permission of the authors:
Kim A. Leffert
Alexandra L. Newman
Michael N. Morrill
Michael J. Downey
https://www.mayerbrown.com/
The eDigest • A Publication of the Arizona Paralegal Association • November 2016 20
Are you forming a limited liability company (LLC) or
a limited partnership (LP) in Arizona? Do you antici-
pate issuing ownership interests at the time of for-
mation? If the answer to these questions is yes, then
effective August 6, 2016, the offer and sale of those
ownership interests may be exempt from registration
under Arizona’s blue sky laws.
Arizona’s blue sky laws, namely the Arizona Securi-
ties Act (the Act), require any securities offering to be
registered before those interests are sold or offered for
sale within or from Arizona, unless the security or the
transaction is exempt from the Act’s registration re-
quirements.
Prior to August 6, organizers of a corporation could
issue shares to up to 10 “incorporators” if (1) they did
not intend to sell those shares to others and (2) the
shares are in fact not directly or indirectly sold to a
third party within 24 months, unless there is a change
of financial circumstances.
This exemption is known as the “Incorporator Exemp-
tion”. It did not help owners of LLCs or LPs, however,
until now.
Beginning August 6, 2016, the Incorporator’s Exemp-
tion has been expanded to include the issuance and
delivery of securities of a LLC or LP to the original
organizers or general partners subject to the same two
conditions.
The Incorporator’s Exemption is available only at or-
ganization. Therefore, it is crucial to take steps to
properly document the initial organizers’ status as
“original incorporators, organizers, or general part-
ners” prior to organizing the company.
(Continued on page 21)
Arizona Expands Securities
Exemptions for New
Companies
The eDigest • A Publication of the Arizona Paralegal Association • November 2016 21
The securities attorneys at Jennings Strouss regularly
work with Founders in organizing companies, helping
them to raise capital in compliance with the securities
laws and doing business transactions tailored to indi-
vidual needs.
Please note that this article has been prepared by Jennings,
Strouss & Salmon, P.L.C. for informational purposes only
so that readers may learn more about recent developments
in the law. This article does not constitute, and should not
be considered, legal advice, and you are urged to consult
with an attorney on your own specific legal matters. Jen-
nings, Strouss & Salmon, P.L.C. retains copyright of this
article
(Arizona Expands … Continued from page 20)
Reprinted by permission of
Arati R. Thaly
Jennings, Strouss & Salmon, PLC
http://www.jsslaw.com/
The eDigest • A Publication of the Arizona Paralegal Association • November 2016 22
Florida Becomes First Mandatory Bar in Nation to
Require Attorneys Take Technology-Related CLE Courses
The Supreme Court of Florida recently approved a
new mandate for attorneys to take technology-related
CLE courses. With the September 29 opinion in case
no. SC16-574, The Florida Bar becomes the first man-
datory bar in the nation to require a CLE tech compo-
nent for its members.
The Board of Governors sent the requested amend-
ment to the Court a year ago, after a recommendation
of its Technology Committee of the Vision 2016 com-
mission. The Commission believed it was a way to
improve the technological competence of Florida law-
yers.
Florida requires 33 hours of mandatory CLE within a
three-year reporting cycle, with three of those hours
devoted to technology training. The amendment is
effective January 1, 2017.
“The simple fact is that technology is changing the
way lawyers practice,” said John Stewart, Chair of the
Board of Governors Technology Committee. “This
provides us an opportunity to offer more services to
more clients at a better price point, and I suggest puts
Florida lawyers at a national advantage in cultivating
business where the business sees the value of techno-
logical competence.”
The court also added language to the comment provid-
ing that, in order to maintain the requisite knowledge
and skills, a lawyer should engage in continuing study
and education, including an understanding of the risks
and benefits associated with the use of technology.
What is impressive is that more than 2,386 Florida Bar
members have already satisfied the three mandatory
hours of "technology credit," as part of their mandato-
ry CLE credit hours. The Court first implemented
mandatory CLE for Bar members 31 years ago, which
has not been changed until this amendment requiring
technology CLE.
To read more about the Florida Bar's news and the Su-
preme Court opinion, visit: http://www.floridabar.org/
DIVCOM/JN/
jnnews01.nsf/8c9f13012b96736985256aa900624829/
3b05732accd9edd28525803e006148cf!
OpenDocument
“The simple fact is that technology is
changing the way lawyers practice.”
The eDigest • A Publication of the Arizona Paralegal Association • November 2016 23
Yes, this is exactly what a California wholesale dis-
tributer of orchids told female employees at staff meet-
ings, according to a new EEOC lawsuit.
And more.
The employees were also told “not to get pregnant,
that they have too many children, and the next person
to get pregnant should stay home and consider herself
fired.”
And, oh yes: The suit also alleges that “pregnant em-
ployees were not reinstated or rehired when they at-
tempted to return to work following the birth of their
children but were discharged from the company.”
The local EEOC director said that “Employers need to
be aware that pregnancy discrimination laws also pro-
tect employees after they have given birth. Failing to
reinstate an employee after maternity leave and dis-
charging them can be a violation of the law.”
Where does one begin to analyze this? Most of the
cases we see regarding pregnancy discrimination in-
volve paternalistic-acting employers “concerned”
about the health of the employee or fetus, or one-off
acts of discrimination. But an espoused grossly illegal
policy, which also likely had racial overtones? Which
was actually carried out by the company?
As I noted back in July, the EEOC’s Strategic En-
forcement Plan (“SEP”) sets out its priorities. And a
company back then seemed to “hit on quite a number
of the EEOC’s priority points – sexual harassment,
retaliation, and the abuse of vulnerable workers – in
this case farmworkers.” Enormous damages of $1.47
million was awarded by a California federal judge to
the class of sexually harassed female farmworkers rep-
resented by the EEOC in that case.
Pregnancy discrimination is also an EEOC priority:
change the sexual harassment from the earlier case to
pregnancy discrimination and you have the present
case — made more egregious because it was company
policy or practice to violate the law.
(Continued on page 24)
You Have Too Many Children. If You Get Pregnant You’re Fired.You Have Too Many Children. If You Get Pregnant You’re Fired.You Have Too Many Children. If You Get Pregnant You’re Fired.
The eDigest • A Publication of the Arizona Paralegal Association • November 2016 24
If proved, wonder what the damages might be?
Earlier I said, apropos farm workers: “The common
thread is the vulnerability of these workers: where
they are powerless, have low-status jobs, fear the im-
migration laws, perhaps cannot speak English; are
physically isolated in the job; or may be mentally or
developmentally challenged.”
My guess is that these women were such vulnerable
workers.
As the EEOC’s General Counsel David Lopez said
when the EEOC announced a large award in a similar
case: “This is the latest in a series of enforcement
efforts … This includes those living and working in
the shadows who are particularly vulnerable to dis-
crimination.”
And also includes the women in the instant case.
(You Have Too Many Children… Continued from page 23)
Reprinted with permission of
Richard B. Cohen, Esq.
FisherBroyles, LLP.
Blog: http://employmentdiscrimination.fisherbroyles.com/
The eDigest • A Publication of the Arizona Paralegal Association • November 2016 25
The Yavapai County Courthouse, located at 120 S. Cortez Street in Prescott,
Arizona is celebrating its 100th anniversary in October 2016.
Constructed in 1916 with the popular Neo-classical Revival style, the
two-story courthouse is symmetrical and faced with locally quarried
granite over a structure of reinforced granite.
"Christmas Night at the Prescott Courthouse." Photo taken Michael Wilson on December 27, 2009.
https://www.flickr.com/photos/michaelpwilson/5431318278/in/photostream/
100th
Anniversary of the Yavapai County Courthouse
The eDigest • A Publication of the Arizona Paralegal Association • November 2016 26
APA NOVEMBER CLE
Wed. 11/9/16
Webinar Starts @ Noon
Christina W. Kelly, of Polsinelli, PC
· Medical Terminology Primer
· Back and Neck Injuries
· Shoulder Injuries
· Hand and Wrist Injuries
· Knee Injuries
· Head/Brain Injuries
TOPIC “Anatomy and Physiology 101 for Personal Injury Paralegals.”
This seminar will provide a general overview of the most common injuries
involved in personal injury cases. Discussion will include:
Ms. Kelly has a diverse background devoted largely to litigating commercial, product liabil-
ity, premises liability, and personal injury matters. She manages the national litigation pro-
gram for a large transportation company, managing all aspects of general & product liability,
and auto claims. She is one of the leading lawyers in Arizona in the area of medical lien con-
sultation. In addition to presenting seminars on medical lien issues, both on a national and lo-
cal level, she advises and develops protocols to deal with the implications of the rapidly
changing Medicare reporting requirements and Medicare’s right of reimbursement. She is the
author of the Health Care Lien chapter of the Arizona Tort Law Handbook. Christina has
been honored for her pro bono work. She’s an active member of the Volunteer Lawyers Pro-
gram and recipient of the organization’s 2011 Children’s Law Center Attorney of the Year
Award. Additionally, she was recognized as one of the top 50 pro bono attorneys in Arizona
by the Arizona Foundation for Legal Services. Ms. Kelly earned her B.S. from ASU, and her
J.D. from McGeorge School of Law, where she was awarded the Order of the Barristers.
The eDigest • A Publication of the Arizona Paralegal Association • November 2016 27
The eDigest • A Publication of the Arizona Paralegal Association • November 2016 28
Court Clarifies that Data Must be Permanently
Deleted for Sanctions
California
Erhart v. BofI Holding, Inc., 2016 U.S. Dist. LEXIS
129906 (S.D. Cal. Sept. 21, 2016) In this whistleblow-
er retaliation case, the defendant moved the court to
impose sanctions on the plaintiff for deleting thou-
sands of files from various devices. The plaintiff
argued that the deleted files were copies of files that
were available either on other devices, or on the
defendant’s own systems. The court agreed with the
plaintiff, noting that “deleting a computer file does
not necessarily destroy the file because it may still be
recoverable,” since the defendant could retrieve the
files from the recycle bin of the devices themselves.
However, the court noted that a few files were likely
permanently missing, and in addition, the fact that the
surviving files were copies meant that metadata may
have been destroyed. The court ultimately declined to
impose sanctions, noting that the plaintiff did not have
the culpable state of mind necessary, and pointed out
that any prejudice done by this deletion would be to
the plaintiff, since he had the burden of proof in this
case. In response to the defendant’s complaint of los-
ing evidence, the court noted how easily much of the
data was recoverable and said that, “[defendant] can
recall the bloodhounds . . . [t]he trail has been blazed?
[defendant] need only follow it instead of seeking
sanctions.”
(Continued on page 29)
LEARN FROM OUR SISTER COURTS –Top Five eDiscovery Cases for October, 2016
By Thought Leadership Team, Kroll Ontrack
The eDigest • A Publication of the Arizona Paralegal Association • November 2016 29
Court Issues a Cornucopia of Sanctions
for Discovery Violations
New York
Arrowhead Capital Fin., Ltd. v. Seven Arts Entm’t,
Inc., 2016 U.S. Dist. LEXIS 126545 (S.D.N.Y. Sept.
16, 2016) In this case, the plaintiff motioned the court
to grant sanctions for the defendants’ discovery mis-
conduct. The plaintiff argued that Mr. Hoffman, the
defendant companies’ manager also known as “the
sun around whom all [defendants’] entities revolved”,
engaged in severe and prolonged discovery miscon-
duct. The misconduct included leaving fees for a serv-
er unpaid so that the documents stored therein would
not be able to be accessed in discovery. The court held
that this conduct violated the “reasonable steps” re-
quirement of FRCP 37(e). In addition, Mr. Hoffman
delegated to his staff the responsibility for assembling
discovery responses so that he could claim no respon-
sibility. The court agreed with the plaintiff that sanc-
tions were warranted, and found especially vexing that
Mr. Hoffman blamed the persistence of the plaintiff’s
attorney in seeking discovery for causing “an emo-
tional outburst in [Mr. Hoffman’s] administrative as-
sistant that somehow caused her to disregard court
orders.” The court sanctioned Mr. Hoffman with mon-
etary sanctions, required him to retain a second attor-
ney for any further discovery proceedings, and held
him in contempt of the court.
Court Compels Party to Identify
Knowledgeable IT Personnel
South Dakota
Collins v. St. Paul Fire & Marine Ins. Co., 2016 U.S.
Dist. LEXIS 135615 (D. S.D. Sept. 30, 2016) In this
bad faith diversity action, the plaintiff filed a motion
to compel discovery. One of the issues was that the
plaintiff claimed that the defendants provided an in-
sufficient response to an interrogatory, which asked
for the “person most familiar with [defendants’] elec-
tronic claims systems and electronic claims database,”
such as an IT member. The defendants responded to
this interrogatory claiming that these persons most
familiar were the “claims adjusters and supervisors
handling the specific claim,” and it would be unduly
burdensome and irrelevant to locate an IT member.
The court agreed with the plaintiff, explaining that IT
staff members have knowledge of the overall systems,
how the company stores data, and who has access to
it, that is far superior to that of the claims adjusters.
The court granted the motion to compel, citing prior
precedent to explain that, “[r]ather than being unnec-
essary, [identifying an IT member] is probably the
most efficient way for [a plaintiff] to obtain the obvi-
ously relevant information."
Court Orders Party to Attempt On-Site Data Col-
lection
New York
Sky Med. Supply Inc. v. SCS Support Claim Servs.,
2016 U.S. Dist. LEXIS 121215 (E.D.N.Y. Sept. 7,
2016) In this RICO case, the defendants filed a motion
to compel, arguing that the plaintiff responded to an
ESI request in an unacceptable format, violating
FRCP 34. The plaintiff produced the requested infor-
mation on two CDs, which contained hundreds of
thousands of claims, and did not have a convenient
method to sort through the data. In the alternative, the
plaintiff offered the defendants access to their server
and provided evidence illustrating that on the server
the claims would be easily identified and retrievable
and the sever would be the most efficient method of
obtaining the discovery. The defendants argued that
an on-site search would be “"painstaking and time
consuming.” The court agreed with the plaintiff, not-
(LEARN FROM OUR SISTER COURTS Continued from page 28)
(Continued on page 30)
The eDigest • A Publication of the Arizona Paralegal Association • November 2016 30
ing that FRCP 34 does not require a party to alter their
data from how it is kept in the “usual course of busi-
ness,” especially in light of the plaintiff’s willingness
to allow on-site inspections. The court rejected the
defendants’ argument that the process would be
“painstaking and time consuming” because the de-
fendants had not yet attempted to inspect the servers
themselves.
Court Discusses What Constitutes Reasonable
Steps for Preserving Text Messages
North Carolina
Shaffer v. Gaither, 2016 U.S. Dist. LEXIS 118225
(W.D.N.C. Sept. 1, 2016) In this employment law
case, the defendant moved the court to dismiss the
case for evidence destruction. The plaintiff accidental-
ly destroyed her phone and sent both the phone and
the SIM card to the phone company for an insurance
claim, and there was no alternative method of obtain-
ing the text messages. The phone contained text mes-
sages relevant to the litigation. The court held that the
plaintiff had a duty under FRCP 37(e) to take
“reasonable steps to preserve” the evidence, as the
plaintiff threatened litigation almost a full year before
this incident. However, the court did not determine
that the plaintiff acted with the requisite intent under
FRCP 37(e)(2) and denied the motion to dismiss, but
it did allow the defendant to call as witnesses in the
trial anyone who had read the destroyed text messag-
es. The court denounced the lack of “reasonable steps”
taken by the plaintiff and explained that when litiga-
tion is anticipated, “steps should be taken to preserve
that material, such as printing out the texts, making an
electronic copy of such texts, cloning the phone, or
even taking possession of the phone and instructing
the client to simply get another one.”
(LEARN FROM OUR SISTER COURTS Continued from page 29)
Thanks to Kroll Ontrack and its Thought Leadership Team for
these case summaries. To receive emails on Everything Edis-
covery from Kroll Ontrack, visit www.theediscoveryblog.com.
To learn more about Kroll Ontrack, visit
www.krollontrack.com.
“The Biggest risk is not
taking any risk. In a world
that’s changing really quickly,
the only strategy that
is guaranteed to fail is
not taking risks.”
Mark Zuckerberg
Co-Founder and CEO of Facebook
The eDigest • A Publication of the Arizona Paralegal Association • November 2016 31
Certified Paralegal Review Course – Fall 2016
Course Cost: Only $290! This course includes five afternoons of instructor-led review with guidance and feedback on practice essays and simulated test questions. Students must separately register, and pay, for the exam directly with NALA. Students in this review course can then take the exam at Phoenix College on special, designated testing days. This special testing opportunity is for students in this review course only.
This review course will help prepare you for the Certified Paralegal (CP) exam offered by the National Association of Legal Assistants (NALA). The course covers all required areas of the exam.
There are two simple steps to preparing for the exam:
1.Register and pay for this review course with Phoenix College.
2. Register and pay the examination fees for the Certified Paralegal exam directly with NALA before 12/01/2016. Everyone must do this. Visit NALA’s website at www.nala.org for details. Click here for NALA’s application and for information on the application process.
The course is open to everyone. Paralegal students at Phoenix College must be completing their program in De-cember of 2016 to be eligible to take the exam. Those students will need a signed waiver from the Program Di-rector.
The course meets at Phoenix College Downtown from 12:30-5:30 pm: 11/19/16, 12/03/16, 12/10/16, 12/17/16, and 01/07/17.
Students are strongly encouraged to bring a laptop to do the in-class exercises. The classroom has electrical power at every seat and wireless Internet is available, although you do not need Internet access during the course.
The exam is conducted over two sessions held on 01/14/17 and 01/21/17 from 12:00-5:30 p.m. Students must attend BOTH days of the testing.
Review Course Material:
The textbook for the course is the Certified Paralegal Review Manual, 4th
edition. To save money, we recommend
that students rent a version of the 4th edition – either ebook or hard copy – whichever you prefer.
To rent the 4th edition of the ebook, go to: http://www.cengagebrain.com/shop/search/9781285162584. Do not rent it
until a couple weeks before the class starts so that the rental period does not expire before the exam is over.
If you want to rent the hard copy, check your favorite textbook rental source, like Amazon.com or chegg.com The ISBN for the hard copy of the 4
th edition is: 978-1-285-16258-4
Purchasing the book is expensive and you will not need it again after you pass the exam. Save yourself some money and rent the book.
Another text, commonly referred to as the "Study Guide," we do not recommend that you purchase. Both the 4th and 5
th editions cover material that appears to also be obsolete and that is no longer tested. Skip the “Study
Guide.”
Phoenix College Downtown · 640 N. First Avenue · Phoenix, AZ 85003
To register call 602-223-4213 between 10:00-6:00, Monday through Thursday, and tell them you want to reg-ister for the fall 2016 non-credit class number 19839 - Certified Paralegal Review. Payment is due upon reg-istration. For more information email us at: mailto:[email protected]
The eDigest • A Publication of the Arizona Paralegal Association • November 2016 32
Rule Changes Help Define State Bar Mission By Rick DeBruhl
September 9, 2016
The State Bar of Arizona’s consumer protection role has been enhanced thanks to a revised rule from the Ari-
zona Supreme Court. The rule change was the result of recommendations made by the Task Force on the Re-
view of the Role and Governance Structure of the State Bar of Arizona. The Task Force was chaired by former
Chief Justice Rebecca White Berch and included attorneys plus community leaders.
The changes to Rule 32, which establishes and defines the State Bar, adds language that refines the organiza-
tion’s mission. While the State Bar has always focused its efforts on protecting the public, that language is
now in the rule. The updated wording says, “The State Bar of Arizona exists to serve and protect the public
with respect to the provision of legal services and access to justice.”
The State Bar’s mission statement already says it exists to enhance the legal profession by promoting the “…
competency, ethics and professionalism of its members”. That language is also now included in Rule 32 as
well. It goes on to say the State Bar has a responsibility to “promote access to justice for those who live, work,
and do business in this state.”
All attorneys licensed in Arizona must belong to the State Bar. In addition to improving lawyer skills, the State
Bar also is also responsible for lawyer regulation.
“The new wording refines and enhances what this organization has done for years,” said State Bar CEO John
Phelps. “We underwrite every Arizonan’s expectation that when they are served by a member of our Bar, that
lawyer is professional, ethical and competent.”
Other changes approved by the Arizona Supreme Court include:
Restructuring the Board of Legal Specialization, which certifies lawyers who are highly experienced in
certain practice areas
Specifying qualifications and term limits for members of the State Bar’s Board of Governors
Providing for the appointment of non-lawyer Board members by the Supreme Court
Recognizing tribal court judges as judicial members of the State Bar
Directing that the State Bar will conduct its meetings and maintain records under public access policies adopt-
ed by the Supreme Court.
According to Chief Justice Scott Bales, “The Court believes that the changes in the bar governance rules will
help ensure that the State Bar continues to serve the public and its members effectively by supporting the fair
administration of justice and the competence and professionalism of lawyers practicing in our state.”
You can read the full text of the rule change here:
http://www.azcourts.gov/Portals/20/2016%20Rules/R-16-0013.pdf
Courtesy of the State Bar of Arizona News Releases, September 9, 2016.
http://www.azbar.org/newsevents/newsreleases/
The eDigest • A Publication of the Arizona Paralegal Association • November 2016 33
APA’S APA’S
NEW WEBSITE!NEW WEBSITE!
www.AZParalegal.org
What’s in the Members– Only Pages?
Exclusive Job Bank
Member Director
Member Networking Forum
Newsletters
Recorded Webinars
New Member Directory!New Member Directory! Search by name, firm, or area of practice.
Tip: Log on and update your profile, add your areas of practice, and even add a photo.
Did you receive your new website login?
If not, contact Karen Flaaen, Membership Chair,
[email protected]. Check it out! www.azparalegal.org
The eDigest • A Publication of the Arizona Paralegal Association • November 2016 34
APA’S APA’S
NEW WEBSITE!NEW WEBSITE!
www.AZParalegal.org
Can you answer these questions from your fellow
members? Have a question of your
own?
Log on and participate in our Members
Networking Forum!
With your online membership, you can now register for all webinars and events, plus renew your membership each year!
The eDigest • A Publication of the Arizona Paralegal Association • November 2016 35
Imagine waking up early to exercise, feeling well-rested from a good night's
sleep. After the gym, you shower, pick clothes out of your orderly closet, and
set out early to the office. This may be the ideal morning for many people. And
yet, it isn't the norm. According to recent surveys, the number one reason peo-
ple gave for not making beneficial lifestyle choices was willpower. So how do
we enhance our willpower and live more in align with our dreams and aspira-
tions?
Before we try to increase it, we have to understand what willpower is. The
American Psychological Association defines willpower as "The ability to resist
short-term temptations in order to meet long-term goals. Auspiciously, once
you have willpower for one aspect of your life it can lead to others. Here are a
few steps to take to increase your resistance:
The most effective way to increase willpower is with practice. But, much like
our physical muscles, you cannot go flat-out. You cannot try to curb your
spending, avoid television, and go to the gym all at the same time.
Small, measurable changes are the key to success.
Since all decisions are made in the pre-frontal cortex, keeping it in an optimum state helps us choose
our long-term goals. This means eating a plant-based diet, exercising, and getting enough sleep.
Exercise will also increase your level of endorphins, making us feel good and better capable of falling
back into old habits.
Avoiding decision-fatigue is a great strategy for amplifying willpower. The brain can become exhaust-
ed by multiple decisions, so the less you make, the easier it will be to continually decide to stick to
your goals. For example, if you know that every morning you take a particular yoga class, your brain
isn't exhausted from wondering whether to go to yoga, or run, or to paint the living room. Another
example would be to avoid having cookies in the house so you do not have to decide if you should eat
one or not. This is known as "precommiting".
Another great technique is "committed postponing." By telling yourself you cannot watch television
on a weeknight, but you can on the weekend is one way to postpone gratification. It has been found
that people using this "not now, but later" technique are less frustrated with their long-term choices.
Willpower is finite, we only have so much!
Do you have enough willpower to create your dreams?
The eDigest • A Publication of the Arizona Paralegal Association • November 2016 36
Some Georgia lawyers are
crying foul over a television
commercial from plaintiff's
personal injury firm Morgan
& Morgan, arguing that the
ad might constitute jury tam-
pering.
What does the ad say? The
Morgan attorney tells view-
ers:
"I'm going to tell you something the insurance companies don't want you to know. In almost all of our car
crash cases, the person who caused the crash has insurance but the jury is never allowed to know. I don't think
that's fair. You might feel sorry for the at-fault driver because you think they will have to pay, but the insur-
ance company pays for that driver's lawyers, court costs and the verdict. Spread the word. Now you know."
Some defense bar lawyers say the ad is tampering with potential jurors and
violates Georgia law regarding admissible evidence (that a person was or
was not insured against liability is not admissible).
The defense attorneys are saying that the ad acknowledges that court rules
bar jurors from being told about insurance coverage, but that the TV ad is
saying they shouldn't take that rule into account, and that jurors are being
encouraged to ignore it and to "spread the word."
In defense Morgan & Morgan said that the insurance industry spends mil-
lions buying influence and having laws enacted that are anti-consumer, and spend millions in TV ads with
false promises and lies.
Another defense lawyer said he is worried that it could open up a "Pandora's box" of jury selection issues
when trying cases against the Morgan firm.
No Bar complaint has been reported as yet.
This is a summary of an article appearing in the Daily Report, "Law Firm's TV Ad Sparks Defense Bar Backlash," by Greg Land,
published on October 10, 2016. To read the complete article, visit: I no longer have 10W CLR
http://www.dailyreportonline.com/id=1202769588075/Law-Firms-TV-Ad-Sparks-Defense-Bar Back-
lash?kw=Law%20Firm%27s%20TV%20Ad%20Sparks%20Defense%20Bar%20Backlash&et=editorial&bu=Daily%20Report&cn=
20161011&src=EMC-Email&pt=Morning%20News
"Evidence that a person
was or was not insured
against liability is not
admissible to prove
whether the person
acting negligently or
otherwise wrongfully."
Arizona Rules of Evidence, Rule 411.
Law Firm's TV Ad Irks Defense Bar
The eDigest • A Publication of the Arizona Paralegal Association • November 2016 37
Tech Tips
Pasting Without Fear in Microsoft Word This works for Word 2010 and up.
Use the Paste Options Button
By default, when you paste text into Microsoft Word, you’ll see a small floating button at the end of the pasted
text that looks like this:
Click on the drop-down, and you get these options:
The button icons across the top allow you to choose how much of the original formatting you want to keep.
The leftmost button (the clipboard with the paintbrush) allows you to keep all source formatting. The center
button instructs Word to attempt to merge the formatting to the complementary with the destination docu-
ment’s formatting. The button on the right makes the pasted text unformatted, which allows it to take on the
formatting of your destination document.
This Paste Options Button can give you some on-the-spot help with formatting pasted text. Some users (like
me) find this feature annoying and intrusive, particularly when the Paste Options Button obscures other text
on the page.
Setting a Default Paste Mode At the bottom of that Paste Options button, however, you’ll see a “Set Default Paste” command. Click it (or
go to the File tab in Word 2010 or the Office Button in Word 2007, then go to Options | Advanced), and you
can customize the default paste action (keep source formatting, merge formatting, or text only) in any of four
situations:
(Continued on page 38)
The eDigest • A Publication of the Arizona Paralegal Association • November 2016 38
Tech Tips
In particular, if you do a lot of pasting from old WordPerfect documents, you’d be well advised to change the
setting for “pasting from other programs” to either “merge formatting” or “text only.” You’ll notice, too, that
this is where you can turn off the Paste Options Button (see highlight above) if you find it as annoying as I do.
Note that, even if you change these default settings, you always have the option of choosing a different paste
method in a specific instance.
Using the Paste Button
If, in a particular situation, your default paste mode isn’t what you want, you can always go to the Home tab
and use the Paste button to specify “keep source formatting,” “merge formatting,” or “text only”.
(Tech Tips Continued from page 37)
(Continued on page 39)
The eDigest • A Publication of the Arizona Paralegal Association • November 2016 39
Thanks to Maritta Terrell, Trainer and Help Desk Specialist at Lloyd Gosselink Rochelle & Townsend,
P.C., located in Austin, Texas. This tip first appeared in www.ILTA.org's list serve called User Support
Services.
Tech Tips
For even more options, you can use the Paste Special command to finely tune the paste result:
This dialog box is contextual, meaning that depending on the source of the text you’re pasting, you’ll get a dif-
ferent list of choices. If All Else Fails
If you paste some text into a document and get an unpredictable or undesirable result, your first line of defense
is CTRL-Z, which will undo the last action you took. If that’s not an option, use CTRL-SPACE, CTRL-Q, and/
or CTRL-SHIFT-N to strip out any undesirable formatting.
(Tech Tips Continued from page 38)
The eDigest • A Publication of the Arizona Paralegal Association • November 2016 40
APA MEMBER JOB BANK
Job Bank notifications provided as a member benefit to APA
members. The APA gathers information on available job oppor-
tunities throughout the community from many sources. The fol-
lowing jobs are provided with the assistance and research of
many, including law firms, companies and schools in the commu-
nity such as Phoenix College and others. The APA thanks all of
those who have given of their time and resources in bringing this
information to the legal community.
The job opportunities below have been researched, selected,
compiled, and in many cases the links shortened for ease of use
by the Paralegal Studies Program at Phoenix College as a service
to its students and graduates. No claim is made to the original
source of the job postings. If this compilation is forwarded, re-
produced, or included in other services it should be accompanied
by an acknowledgment of the Phoenix College Paralegal Studies
Program.
***********************************
The Town of Gilbert is seeking a Court Services Clerk. This
position will provide clerical and technical support to the courts
by receiving, preparing and processing various types of legal
documents. Compensation: $16.99 - $25.49 an hour. For more
information and to apply for this position, go
to: http://bit.ly/2dIH8VV
***********************************
The City of Phoenix is seeking an Equal Opportunity Specialist
to act as an eligibility analyst, policy advisor, and certification
application reviewer in the areas of small and disadvantaged
business certifications, contract compliance monitoring and com-
munity relations. First review of applications will occur the week
of October 31, 2016. Recruitment may close when we have re-
ceived a sufficient number of qualified applications. Compensa-
tion: $54,392 - $81,245 annually. For more information and to
apply for this position, go to: http://bit.ly/1MiBP8P
***********************************
Salt River Pima-Maricopa Indian Community in Scottsdale is
seeking Legal Secretary (Prosecution). Compensation: $37,660 -
$49,902 a year. Closing Date/Time: 11/08/16 11:59 PM Arizona
Time. For more information and to apply for this position, go
to: http://bit.ly/2eLZvXB
***********************************
HonorHealth is seeking a Compliance Project/Administrative
Specialist for their Corporate Compliance Department. For more
information and to apply for this position, go
to: http://bit.ly/2eM3rIf
***********************************
Health Choice in Phoenix is seeking a Compliance Analyst-
Delegated Vendor (DV) Oversight to support the administration
of the Compliance Program. The position also conducts auditing
and monitoring activities in connection with subcontractor over-
sight and the ongoing risk assessment component of the compli-
ance program which identifies areas of focus based operational
performance and evolving legal, contractual and regulatory re-
quirements. For more information and to apply for this position,
go to: http://bit.ly/2eFTUUW
***********************************
(Continued on page 41)
DO YOU KNOW OF A PARALEGAL POSITION AT YOUR PLACE OF EMPLOYMENT?
If so, advise your employer that the APA offers ad space for paralegal jobs to employers free of charge! To place a job bank ad or for information on a job, send an e-mail to Seth U. Nwosu at [email protected] .
Attention APA Members It is the policy of the Arizona Paralegal Association that Job Bank information only be provided to members of the APA.
Please honor this policy by not giving this information to others but, instead, let them know how they can join!
The eDigest • A Publication of the Arizona Paralegal Association • November 2016 41
HMS Holding in Phoenix is seeking a Subrogation Case Worker
I to be responsible for processing all casualty or estate functions
involving several state Medicaid beneficiaries or deceased Medi-
caid beneficiaries. Paralegal certificate preferred. For more in-
formation and to apply for this position, go
to: http://bit.ly/2dWYRYl
***********************************
Jeckel & Nykamp, PLLC in Sun City is seeking an experienced
Paralegal. Compensation: $38,000 a year. For more information
and to apply for this position, go to:http://bit.ly/2eGytjx
***********************************
Freedom Mortgage Corporation in Phoenix is seeking a Compli-
ance Specialist to be responsible for conducting internal audits to
help ensure that Freedom Mortgage and its clients have appropri-
ate processes and methods to effectively comply with applicable
federal, state and government regulatory agency requirements
regarding mortgage insurance processing and lender placement.
For more information and to apply for this position, go
to: http://bit.ly/2eFWiLt
***********************************
The Maricopa County Facilities Management Department is
seeking a Property Management Specialist. Closing Date/Time:
10/31/16 11:59 PM Arizona Time. Salary: $49,920.00 -
$77,168.00 Annually. For more information and to apply for this
position, go to: http://bit.ly/2evF8zE
***********************************
Arizona Health Care Cost Containment System is seeking a
Rules Analyst for their Phoenix office. This position will work
closely with the AHCCCS Deputy General Counsel to draft rule-
making packages and analyze the economic impact of such pack-
ages. First Review Date: 11/1/16 - This position will remain open
until filled. Salary: 47,476.00-55,000.00 annually. For more
information and to apply for this position, go
to: http://bit.ly/2evFFS4
***********************************
The Arizona Department of Insurance is seeking a Deputy Re-
ceiver/Legal Analyst for their Phoenix office. Salary:
$80,000.00-$95,000.00 annually. For more information and to
apply for this position, go to: http://bit.ly/2eMc0mh
***********************************
Central Phoenix mid-sized immigration law firm is hiring a bilin-
gual Paralegal or Legal Assistant immediately. For more infor-
mation and to apply for this position, go to: http://bit.ly/2fg9mrH
***********************************
The Maria Jones Law Firm is seeking a bilingual Legal Assistant
with experience in the Immigration field preferred. For more
information and to apply for this position, go
to: http://bit.ly/2dKTTuf
***********************************
A well established and respected national law firm has an imme-
diate opening for Legal Nurse Consultant to work in their Phoe-
nix office. For more information and to apply for this position, go
to: http://bit.ly/2dIWnOT
***********************************
Experienced Personal Injury Paralegal needed for a large high
volume law firm. For more information and to apply for this po-
sition, go to: http://bit.ly/2eRQ8VZ
***********************************
A dynamic immigration law practice in Phoenix is seeking a bi-
lingual, part-time front desk reception /admin person. Starting at
$10 per hour, with an opportunity for a raise based on productivi-
ty. For more information and to apply for this position, go
to: http://bit.ly/2dIX7U6
***********************************
Discount Tire is seeking a Legal Assistant for their Scottsdale
office. This person will assist and relieve lawyers, paralegals and
other legal personnel of certain legal administrative and clerical
work in the area(s) of real estate, construction and other opera-
tional departments. For more information and to apply for this
position, go to: https://cb.com/2eGWE4p
(Continued from page 40)
APA MEMBER JOB BANK
APA exclusive job listings can be found on our website at http://www.azparalegal.org You must be an APA member and log in to view the job bank.
The eDigest • A Publication of the Arizona Paralegal Association • November 2016 42
Vol. 12, No. 11 November 2016
Website Outages in November
Maricopa County will be doing planned system maintenance that will affect all websites ending in “.maricopa.gov.” These websites will be unavailable from 8:30 p.m. until Midnight on Sunday, November 6 and Sunday, November 13. Commonly-used websites that will not be available include minute entries, the docket online, the Electronic Court Record Online, and the Clerk’s eFiling Online system.
During the outages, users will not be able to view documents through AZTurboCourt. Filings can still be submitted through AZTurboCourt during the maintenance windows and documents will be processed when maintenance is complete. The date and time of filing through AZTurboCourt will be preserved and will not be affected by the maintenance.
Millions of Points of Service
The Clerk’s Office received more than 714,000 eFilings during the fiscal year ending June 30, 2016. Although eFilings have increased significantly over the years, they remain only a portion of nearly 15,000 documents the office processes on an average day. These filings add up to millions of documents each year that Clerk staff handle, making sure they end up in the right case at the right time, accessible to the right people.
In addition to filing, issuing marriage licenses, and processing passport applications, the Clerk’s Office processes millions of dollars of victim restitution. In its latest fiscal year, the Clerk’s Office put $9.2 million of restitution into the hands of victims—over half a million dollars more than last fiscal year. This information and more will appear in the Clerk’s 2015-2016 Annual Report, available later this month under “Announcements” on the Clerk’s website at www.clerkofcourt.maricopa.gov.
Office Closure Reminders
The Clerk’s Office will be closed on Friday, November 11 for Veterans’ Day and on Thursday and Friday, November 24 and 25 for Thanksgiving. Several years ago the Superior Court in Maricopa County opted to stay open on Columbus Day in exchange for closing on the Friday after Thanksgiving. In non-juvenile case types, customers may submit documents for filing on nights, weekends, and holidays by eFiling in appropriate cases and by using the Clerk’s external filing depository boxes located around the Valley. Filing depository box locations are listed online at http://www.clerkofcourt.maricopa.gov/alternative_filing.asp.
(Continued on page 43)
The eDigest • A Publication of the Arizona Paralegal Association • November 2016 43
Maricopa County Citizens Survey (content from Maricopa County)
Maricopa County is sponsoring a community-wide survey of County residents to get their perspec-tives about the quality of our community and available services as well as residents’ priorities.
The results of the survey will be presented to County elected officials and County departments in December of 2016. This information will assist in strengthening service delivery and the budget pro-cess in Maricopa County.
Participate in the Online Survey
The survey is available online only and all residents of Maricopa County age 18 and older are eligi-ble to participate. The survey will open on October 24, 2016 and be available through November 16, 2016.
Take the Maricopa County Citizen Survey today!
For more information about this survey, visit www.yourvoicemc.com.
Thank you for you helping to create a stronger and more vibrant Maricopa County!
Mail Survey
A random scientific sample of 2,200 households will receive invitations via mail to participate and their responses will be weighted and analyzed. If you receive a mail survey, please complete it as you are one of a small number of households being surveyed in this random sample. Additionally, you only need to complete the survey once; mail survey recipients do not need to complete the online survey.
(The BRIEF Continued from page 42)
The eDigest • A Publication of the Arizona Paralegal Association • November 2016 44
GOT CLE?
NALA Webinars These are LIVE courses— Search this site for additional available topics
https://www.nala.org/continuing-education/webinars
NALA Campus LIVE! - Live web seminars are offered in two sessions each year, February—May and August—November. Each session features about 30 on-line seminars. The audio files and handout material are copyrighted by NALA and the authors. They are for personal use only. Duplication of any of the material or any commercial use is strictly prohibited.
NALA CLE!
NALA offers continuing education credits in a variety of ways to fit your schedule— Search this site for addi-tional available topics
http://www.nala.org and click under the education tab. NALA offers Live Courses, Self-Study Courses, Webinars, and On Demand Webinars. The audio files and handout material are copyrighted by NALA and the au-thors. They are for personal use only. Duplication of any of the material or any commercial use is strictly prohib-ited.
Upcoming Webinars
11/08/16 - Tales from the Crypt: Dealing with a Decedent’s Tax Fraud
11/10/16 – Excel for Paralegals
11/17/16 – Why Information Governance and the Legal Function Belong Together
11/18/16 – Domestic Violence Victims
11/30/16 – Introduction to Environmental Law and Environmental Assessments
NATIONAL BUSINESS INSTITUTE
www.nbi-sems.com
Live Video Webcasts
tp://www.nbi-sems.com/Default.aspx/Video-Webcasts/?NavigationDataSource1=N:63782
11/8/16 – Revocable Living Trusts from Start to Finish
11/9/16 – Legal Ethics: Top 10 Challenges
11/10/16 – Medicaid Liens (and More) in Personal Injury Settle-ments: New Rules and Regulations!
11/14/16 – Skip Tracing and Cyber Tracking
11/18/16 – Practical Approaches to Expert Witness Depositions
Lorman Live Webinars! www.lorman.com
Under the Training tab, click CLE, and choose Arizona CLE or click the link below: http://www.lorman.com/training/?topics=&credits=AZ-CLE&products=&states=&s=product-index&q=&sort=relevance?s=BLPlink
11/9/16 – Do’s and Don’t for Internal Investigation of Employment Issues
11/21/16 – Drafting Clear and Enforceable Contracts
11/29/16 – Arizona Bankruptcy Law and Obligations
Continued on page 38
The eDigest • A Publication of the Arizona Paralegal Association • November 2016 45
GOT CLE?
NALA Webinars These are LIVE courses— Search this site for additional available topics
https://www.nala.org/continuing-education/webinars
NALA Campus LIVE! - Live web seminars are offered in two sessions each year, February—May and August—November. Each session features about 30 on-line seminars. The audio files and handout material are copyrighted by NALA and the authors. They are for personal use only. Duplication of any of the material or any commercial use is strictly prohibited.
Maricopa County Bar Association offers a variety of high quality CLE!
http://www.maricopabar.org/?MCBACLE
They even offer Self Study!
http://www.shop.maricopabarcle.com/
Personal injury Fundamentals Session 1 – Intake and Retention (1
credit hour) Personal injury Fundamentals Session 2 – Investigation (1 credit
hour) Personal injury Fundamentals Session 3 – Complaint, Discovery &
Liens (1 credit hour)
Maricopa County Bar Association CLE
CLE CALENDAR
http://mcba.site-ym.com/events/event_list.asp
LEXIS NEXIS Paralegal Community has some good information, as well. Check it out at http://law.lexisnexis.com/communityportal/articles/default.aspx?g=QfsTyLJ1USs=&c=EZggD7hDKLw=
ALA-ABI www.ali-aba.org
The ALA-ABI site has excellent online CLE courses, forms, printed books, MP3 CDROMs, CLE DVDs, CLE MP3 Downloads, CLE Court Materials and Course Papers
Organization for Legal Professionals www.theolp.org/education
West Legal Education www.westlegaledcenter.com
Institute of Paralegal Education www.ipe-sems.com
LexisNexis
www.lexisnexis.com
PLI National Constitution Center www.constitutionconferences.com
Arizona Bar Association www.azbar.org/CLE
IPE (Institute for Paralegal Education) www.ipe-sems.com
If you know of any other sources for CLE and would like listings to be placed in this
publication, please email Irene Winterburn, President at [email protected];
Marci Seek, Second Vice President at [email protected]; or Teresa Romero,
Newsletter Chair at [email protected].
Continued from page 37
