pm blog

News Flash As further confirmation that the Internet is nothing but a haven for pederasts and that social networks are useless child’s-play (opinions expressed by managing partners and chief judges in every law firm and courthouse in America), Microsoft paid $240 million for a 1.6% stake in facebook - the social network we told you about here. For your math majors, that values facebook at about $15 billion (yes … billion with a ‘b’). The two companies conducted a press conference on October 24 along the lines of this press release. Microsoft beat out rival Google for the privilege.

Stay Tuned for gripes, complaints, whining, and general antitrust sentiment from the losers in the social networking race, expressed through armies of even whinier, more annoying, lawyers. If that doesn’t stop the onslaught of progress then expect the last resort of all things slow and tedious - legislators who still think the whole ‘inter-nets’ fad will pass … like Coca Cola, methamphetamine, and rap music.

Welcome to the ‘new’ reality of law practice. Well … okay, not so new. The fact is that lawyers makes less in real dollars today than they did 20 years ago. A lot less. And that decline has been accelerating. In fact, we may have experienced the most precipitous wage declines of any professional group. See this post for the grim details. Perhaps these are the kinds of facts that prompted Prof. Richard Susskind to write a 6-part series concluding that the profession is on the brink of extinction or radical change.

‘But why‘ you ask ‘is the world’s (second) oldest profession faced with such a crisis? Nepotism? Alien conspiracy? The Protocols of the Elders of Zion?‘ Sorry, no. Actually it appears that lawyers are beginning to experience the inevitable result of having had their secrets revealed and the door to their once exclusive domain propped open (ever so slightly). In Susskind’s words, the drivers here are information technology and relentless commoditization; the jig was up when people figured out how to (in his words) carve up a lawyer’s job into identifiable and discreet pieces that could be outsourced and done more cheaply by others. Wow. That’s bad news? It made Henry Ford a fortune and resulted in a nationwide explosion in transportation and productivity. Even among lawyers outsourcing has given rise to a completely new class of vendors (legal outsourcing professionals). But there’s that dichotomy again - what’s good for productivity is bad for most lawyers (and obviously good for a few - the few that can afford to outsource and still charge astronomical rates). We’ve talked before about the clubby nature of the profession and have long acknowledged that members of a cartel such as the law benefit exclusively at the expense of non-members, so of course productivity and accountability mean nothing. Why do a job better or faster if you are not rewarded that way? It’s a lesson that our profession has understood for generations.

In any event Professor, welcome to the discussion. One question though; where were you when working lawyers saw operating margins shrink to zero, even as malpractice premia spiraled, disgruntled clients killed their lawyers, reactionary judges embarked on McCarthy-style witch hunts to appease the mob, and non-attorneys relentlessly eroded our professional province? Safely ensconced the ivory tower, of course. Maybe that’s why you recommend that the profession develop not by ring-fencing certain categories of work as the exclusive preserve of lawyers [or] encouraging cartel-like activity but rather by thinking more creatively, imaginatively, and entrepreneurially about the way in which lawyers can and should contribute to society. Sure professor: we’ll get right on that … as soon as courts award judgments on account of ‘creativity” and clients agree to pay for “imaginative,” “entrepreneurial” representation.

LITIGATION HOLD DIRECTIVES ISSUED BY COUNSEL TO CLIENTS

Generally speaking litigation hold directives issued to Clients are protected from discovery as work product or attorney-client privilege. But there are exceptions …

The Courts have held that litigation hold directives issued by counsel to their clients are protected as privileged communications or work product. Gibson v. Ford Motor Co., No. 06-1237, 2007 U.S. Dist. LEXIS 226, at *19-20 (D. Ga. Jan.4, 2007); Rambus, Inc. v. Infineon Technologies AG, 220 F.R.D. 264 (E.D. Va.2004).

With so much attention on electronically stored information (ESI) in the discovery stage of civil litigation, a requesting party often times feels compelled to request a copy of all written directives issued by an attorney to their client when it comes to implementing the litigation hold of all relevant ESI, or to establish if such directives even were issued. This approach however, has been proven to be ineffective in court.

Behind this thin veneer of inquiry however, is a significant issue that if approached from another direction will successfully get to the heart of the matter. A number of critical questions need to be addressed when formulating a strategy to get the answers to issues that are connected with electronic evidence:

1. At what precise date did the client actually implement a litigation hold on all sources of ESI?

2. What reasoning was used to identify and inventory the specific electronic systems that would be subject to the litigation hold?

3. What if any prior existing litigation hold was in effect at the time of this new imminent civil case that involved some of the same systems or ESI?

4. What specific policies and procedures were already established to implement an effective litigation hold on electronic systems and all ESI pertaining to a civil lawsuit if any?

5. What are the names of the specific individuals who are assigned with litigation hold related responsibilities within the organization?

6. What are the reporting procedures within the organization to supervise all litigation hold activities throughout the duration of a case?

7. What if any operational constraints exist in the implementation of a litigation hold situation?

8. What specific procedures are implemented with any third-parties who have access to or responsibilities to service, maintain, program or otherwise interact with systems or ESI that has been identified to be subject to a litigation hold?

While it may be important to learn whether or not a producing partys counsel provided sufficient advice to their client to implement an effective litigation hold, ultimately it will all flush out once the answers to questions like those listed above are collected. Attorneys will soon learn that a form letter to their corporate clients advising to implement generic litigation hold procedures is insufficient to safeguard the client or themselves from spoliation accusations.

At CyberControls, our team of pretrial litigation consultants work at assisting commercial litigators in identifying effective avenues of inquiry to identify areas of inadequate litigation hold practices for a requesting party as well as providing recommendations to implement a rock solid litigation hold for commercial clients to be in compliance with their preservation obligations.

CyberControls, LLC is a computer forensics and e-discovery firm that provides pretrial consultancy support and conducts searches and examinations of electronically stored information for commercial litigation matters. Contact them by calling 847-756-4890 or visiting them online at www.cybercontrols.net.

Technorati tags: lawyer, law, electronic discovery, esi, litigation, consultant, federal rules of civil procedure, practice management, blog

Denis Howell, noted Legal blogger, who basically has pioneered the opportunity for other Legal bloggers with her listing @ ZDNet.com could use some support from the legal community by visiting ZDNet blog and not only reading or commenting, but the check the vote box. By doing this you support the effort of bringing her blogs post forward among the numerous Tech/Gaget/IT related stories.

Recently we have notice a surge in online IT publications addressing the common issue of Piracy/DRM. Much needed education is required when addressing this issue, “Fair Use” is bundled right along with it.

The opportunities for Law Firms is opening up, exposing readers to “REAL” authoritative sources in translating Copy Rights, Digital Rights Management can only benefit the Legal Sector as a whole.

I just wish someone would point RIAA or MPAA toward the International Disc Duplicators Association(IDDA), and leave the downloading soccer-moms along. The real pirates are laughing at them, my competitors, who would print/duplicate/package/distribute anything.

Show your support for a fellow attorney

Google Docs Introduces Mobile Version
October 17, 2007 — by Adam Ostrow

Speculation continues over the gPhone and Google’s rumored mobile operating system. In the meantime, Mashable! reports that Google is making a slew of announcements in the wireless space – that latest that a mobile version of Google Docs just went live featuring a display of documents and spreadsheets optimized for mobile screens. Other recent announcements from Google in the mobile space include the acquisitions of Jaiku and Zingku, a mobile version of AdSense, and an new release of Gmail Mobile.

Courtesy of author Kristen Nicole at Mashable! (the Mentos of blogs - it’s the ‘Fresh-Maker’) comes this piece of enterprise 2.0 goodness … seems web 2.0 and the enterprise may finally be taking that tentative first step towards one another. And to prove the point, RSS darling NewsGator (my personal fav) has incorporated support for Microsoft Sharepoint, Among Other Upgrades.

NewsGator announced that the Social Sites add-on for its enterprise server edition, which allows employees to interact, share news, search for items, and generally keep up with what’s going on in the company, will henceforth be available for business use. Also included in the launch is support for Microsoft Office SharePoint Server 2007 and 3.0. NewsGator also recently launched its Facebook application to allow non-enterprise users to sort of do the same thing (kind of).

You knew someone was going to discuss it at some point: the creep. I’m not talking about Uncle Earnie … although he’s never been quite right … no, I mean the creep of non-lawyers (whether a non-lawyer professional, a business person, or a soccer mom) into what we used to call “legal work” (if that even means anything any more).  Whether we’re comparing an incorporation online or a store-bought will, lease, or promissory note, I can’t decide whether to love or hate these labor and money saving products of a DIY culture, the Internet, and an educated population. Case in point. In response to this post by Carolyn Elefant on the Law.com Blog Network I had a few things to say.  Feel free to disagree … if you can. Here we go

Prepackaged legal documents such as wills, deeds, and leases are the tip of the iceberg and you know it - more and more of the not-too-difficult but profitable tasks once performed by lawyers have been overtaken by cheaper, more readily available options.

I think this happened before … what was it called? Oh yes, the Industrial Revolution. Millions were out of work. It was a bad time to be in buggy whips, what with the horseless carriage on the rise.

Of course when a layman takes up the pen they are still bound to make costly mistakes, but that is the problem (if it really is a problem); for most people a ‘good enough’ job is, well, good enough. Why pay high incremental costs to take your output from ‘good’ to ‘great?’

Like it or not, this is the way of the future. All that remains is to determine who will benefit and who will suffer. Taking all bets …