Metadata, TIFF, GB, and ESI. For many of us, these are strange words and acronyms that we do not think apply to us. Yet, for over a year, California has been operating under the Electronic Discovery Act. This act addresses the discovery of electronically stored information (ESI). And, since August 14, 2009, California Rules of Court 3.724 was amended to expand a party's duty to meet and confer related to the discovery of electronically stored information.
If you thought your practice is not affected by ESI, consider this scenario. Your client is involved in a car collision. The client takes a picture of the cars on a cell phone. Is this picture electronically stored information? What about a Facebook page with pictures or text that affect your client's case or rights? E-discovery is all around us.
We can relate to the term "litigation hold." But how do we educate our clients on what this means and the scope of a "hold?" As lawyers, we need guidance as well.
Only one California case addresses the Electronic Discovery Act. At the federal level, there are numerous cases addressing ESI. But as I tell my high school mock trial students, these decisions are "persuasive but not binding." One outside entity, The Sedona Conference, publishes numerous commentaries on all aspects of e-discovery. Where to begin?
The Santa Clara County Bar Association is in the process of forming a task force to help with this e-discovery conundrum. I have appointed a task force comprised of a number of prominent members of the legal community and judges, one of whom has already agreed to serve, to formulate guidelines and principles to assist our legal community and the courts in uniformly handling e-discovery issues and disputes. The goal of the task force is to educate the SCCBA members with a working knowledge of e-discovery and apprise them on how the Court will be addressing e-discovery disputes as well as how electronic discovery will be admitted at trial.
SCCBA members Josh Gilliland and Kathy Gallo have formulated a working outline of what these principles and guidelines should address. They are as follows:
1. Basics of E-Discovery
a. Terminology (i.e. metadata)
b. Sources we are using to store electronics (ie. Computers, cell phones, cloud servers)
c. Why it is necessary to get the information from these sources
2. How to advise your client on how he should keep his stored data
a. individual
b. small business
c. large business
3. Collecting information when anticipating litigation
4. Discovery
a. Document requests
1. Sample requests
2. Outsourcing the collection of data for production
3. How to handle privilege issues
b. Interrogatories
1. All sources that the electronic data is being kept
2. Who is in charge of storing the electronic data
c. PMK of who is in charge of storing the electronic data
d. Employees of the company who were directly involved in the litigation
e. Whether or not a Discovery Referee should be appointed to oversee the e-discovery process.
5. What the court is going to do with a motion to compel
a. Discovery Referee
b. Forensic computer specialist
6. How the Court's are going to handle the admissibility of electronic evidence.
The outline is a starting point. It will probably change over the course of our discussions. If you are interested in serving on the task force, please contact SCCBA Executive Director Chris Burdick at chrisb@sccba.com. The goal is to complete the guidelines or E-Discovery for Dummies by the end of the year. We will then seek input from the various SCCBA sections and committees before asking the Board of Trustees to adopt the guidelines. The guidelines will then be distributed to our members and the court.
I am hoping to have the task force up and running by Labor Day.
BOARD OF TRUSTEES VOTES ON ARIZONA IMMIGRATION LAW RESOLUTION
At its July meeting, the SCCBA Board of Trustees approved a resolution encouraging the revision or repeal of Arizona SB 1070 and encourages other legal professionals and organizations to challenge the enforcement and amend/revise this law. The text of the resolution can be found by clicking here. The SCCBA expresses its concern on the vagueness of the law's language and potential profiling it will encourage. The SCCBA has a history of taking stands on issues that affect fundamental liberties and legal rights of citizens.
Please enjoy your summer.
Wednesday, August 11, 2010
THESE ARE NOT YOUR MOTHER’S RULES OF PROFESSIONAL RESPONSIBILITY (PLUS A LEGAL SERVICES UPDATE)
(reprinted from July edition of Daily Journal)
Many of us of a certain age will remember studying the ABA Model Rules and Model Code of Professional Responsibility along with the California rules in law school. While other areas of the law changed in the last few years, the rules of professional conduct have not substantially changed-until now. In July, the California State Bar Board of Governors is expected to approve significant changes to what we learned constituted ethical conduct. In fact, there are 69 new and amended proposed rule changes presently before the Board. The Santa Clara County Bar Association will present timely MCLE seminars to educate you on those changes. Preceding those, I wanted to highlight some of the more interesting proposals currently on the table.
The SCCBA’s Professional Rules Revision Task Force, chaired by Roberta Hayashi, reviewed the current 69 proposed rule revisions, and at its May , 2010 meeting, the SCCBA Board of Trustees approved the Task Force’s proposed comments on fourteen of the revisions. The SCCBA was one of the few bar associations to comment on these rule changes. Here are some of the highlights.
Proposed Rule 1.6 would adopt a modified American Bar Association’s Model Rule 1.6 regarding confidentiality of information. The State Bar’s rules revision committee altered the ABA’s rule by deleting a crime or fraud exception to the attorney-client confidentiality requirement. The SCCBA Task Force felt the crime/fraud exception is a vital one, and objected to the deletion of this language.
Another rule modification will require that consent to conflicts be “written informed consent.” The proposed rule is stricter than the consent standard in the ABA’s Model Rules, which require only that the client’s informed consent be “confirmed in writing.” Only two other states, Wisconsin and Wyoming, require that the client provide written consent to a conflict. A rule mandating a client writing can be a trap for the unwary. The SCCBA opposed the proposed modification.
There is no proposed counterpart to the ABA’s Rule 1.10 regarding lateral lawyer conflicts. Instead, the issue has been addressed in proposed Rule 1.8.11 which imputes all conflicts by one lawyer to the firm. There is no screening at all provided in the current proposal. The SCCBA recommended adopting the ABA’s 2009 version of Model Rule 1.10, which added provisions allowing for the limited screening of attorneys moving from one firm to another. The 2009 ABA version of Rule 1.10 recognizes the reality of modern day law practice, which involves the lateral movement of attorneys among firms and the practical reality that if certain parameters can be met, attorneys can be effectively and timely screened so that a conflict of interest is not created for the attorney’s new firm or legal organization.
Another proposed rule addresses the special responsibility of prosecutors. The rule under consideration closely tracks the ABA Model Rules with some modifications including language that only requires a prosecutor refrain from commencing or prosecuting a charge that the prosecutor actually knows is not supported by probable cause instead of the “recommend” and “reasonably should know” standard.
Conflicts of interest rules mark the most significant change. Proposed Rule 1.8.2 would forbid a lawyer from using any information of a client to the disadvantage of the client. The ABA’s Model Rule is narrower, prohibiting a lawyer from using information “relating to the representation of a client” adversely to the client.
Finally, with the internet now a source of referrals, proposed Rule 5.4 would address internet marketing sites and lawyer referral services on the internet.
We will continue to provide updates on the status of the rule changes through SCCBA eNews.
LEGAL SERVICES UPDATE
In January, I challenged our members to make financial contributions to legal services organizations. While I don’t have any figures on how successful the challenge has been, our Legal Services Committee has been very active this year under the helm of Palo Alto City Attorney Gary Baum.
The SCCBA Legal Services Committee has been a resource that assists non profit legal aid organizations in sharing insights, discussing common problems and coordinating responses on issues of importance to the various legal services agency providers. The Committee has five goals: (1) provide coordination and encourage communication among the local organizations that are direct providers of legal services; (2) provide coordination of bar member pro bono volunteers for legal services; (3) consider and establish local priorities for addressing legal services and access to the court; (4) to provide a mechanism for providing advice on the distribution of resources to address local priorities; and (5) to provide input to the Association’s leadership on access issues including local funding, legal service board appointments and the development of local projects to address access issues. The next meeting of the Legal Services Committee is scheduled for July 14 at 12:15 p.m. at the SCCBA offices. All are invited to attend.
Another important task includes tackling common issues that affect all of the legal service providers. The Committee reviews local, State and Federal initiatives related to legal services. The Committee has analyzed proposals for the SCCBA’s Board of Trustees and the American Bar Association and examined the funding crisis affecting all legal service providers. The Committee has also tried to develop possible methods of encouraging solo or small firm participation in pro bono work.
Another important contribution of the Committee is planning an annual one day retreat which will provide continuing legal education for all legal services providers. Hillary Armstrong, Supervising Attorney of Health Legal Services for the Law Foundation of Silicon Valley, chairs the sub-committee that is organizing the 2010 retreat. The retreat serves as a training opportunity as well as a chance for all the agencies to get together and share common problems and solutions. The retreat has been scheduled for October 8, 2010, from 8:30 a.m. – 4:30 p.m. at the SCCBA’s offices.
Recognizing the current economic climate, this year’s program is entitled Surviving the Great Recession: Providing Legal Services in Difficult Times. Topics currently include litigation skills refreshers, legal ethics for lawyers and non-lawyers, and working with individuals with mental disabilities. There will be an emphasis on speakers from the Bench in order to obtain the judicial perspective on the provision of legal services and Bench/legal service provider interaction.
Legal services organizations perform vital work and still need your help. Please consider making a donation if you have not done so already.
On a final note, congratulations to Jim Towery on his appointment as the State Bar’s Chief Trial Counsel. Best wishes to Jim as he takes on this monumental task.
Many of us of a certain age will remember studying the ABA Model Rules and Model Code of Professional Responsibility along with the California rules in law school. While other areas of the law changed in the last few years, the rules of professional conduct have not substantially changed-until now. In July, the California State Bar Board of Governors is expected to approve significant changes to what we learned constituted ethical conduct. In fact, there are 69 new and amended proposed rule changes presently before the Board. The Santa Clara County Bar Association will present timely MCLE seminars to educate you on those changes. Preceding those, I wanted to highlight some of the more interesting proposals currently on the table.
The SCCBA’s Professional Rules Revision Task Force, chaired by Roberta Hayashi, reviewed the current 69 proposed rule revisions, and at its May , 2010 meeting, the SCCBA Board of Trustees approved the Task Force’s proposed comments on fourteen of the revisions. The SCCBA was one of the few bar associations to comment on these rule changes. Here are some of the highlights.
Proposed Rule 1.6 would adopt a modified American Bar Association’s Model Rule 1.6 regarding confidentiality of information. The State Bar’s rules revision committee altered the ABA’s rule by deleting a crime or fraud exception to the attorney-client confidentiality requirement. The SCCBA Task Force felt the crime/fraud exception is a vital one, and objected to the deletion of this language.
Another rule modification will require that consent to conflicts be “written informed consent.” The proposed rule is stricter than the consent standard in the ABA’s Model Rules, which require only that the client’s informed consent be “confirmed in writing.” Only two other states, Wisconsin and Wyoming, require that the client provide written consent to a conflict. A rule mandating a client writing can be a trap for the unwary. The SCCBA opposed the proposed modification.
There is no proposed counterpart to the ABA’s Rule 1.10 regarding lateral lawyer conflicts. Instead, the issue has been addressed in proposed Rule 1.8.11 which imputes all conflicts by one lawyer to the firm. There is no screening at all provided in the current proposal. The SCCBA recommended adopting the ABA’s 2009 version of Model Rule 1.10, which added provisions allowing for the limited screening of attorneys moving from one firm to another. The 2009 ABA version of Rule 1.10 recognizes the reality of modern day law practice, which involves the lateral movement of attorneys among firms and the practical reality that if certain parameters can be met, attorneys can be effectively and timely screened so that a conflict of interest is not created for the attorney’s new firm or legal organization.
Another proposed rule addresses the special responsibility of prosecutors. The rule under consideration closely tracks the ABA Model Rules with some modifications including language that only requires a prosecutor refrain from commencing or prosecuting a charge that the prosecutor actually knows is not supported by probable cause instead of the “recommend” and “reasonably should know” standard.
Conflicts of interest rules mark the most significant change. Proposed Rule 1.8.2 would forbid a lawyer from using any information of a client to the disadvantage of the client. The ABA’s Model Rule is narrower, prohibiting a lawyer from using information “relating to the representation of a client” adversely to the client.
Finally, with the internet now a source of referrals, proposed Rule 5.4 would address internet marketing sites and lawyer referral services on the internet.
We will continue to provide updates on the status of the rule changes through SCCBA eNews.
LEGAL SERVICES UPDATE
In January, I challenged our members to make financial contributions to legal services organizations. While I don’t have any figures on how successful the challenge has been, our Legal Services Committee has been very active this year under the helm of Palo Alto City Attorney Gary Baum.
The SCCBA Legal Services Committee has been a resource that assists non profit legal aid organizations in sharing insights, discussing common problems and coordinating responses on issues of importance to the various legal services agency providers. The Committee has five goals: (1) provide coordination and encourage communication among the local organizations that are direct providers of legal services; (2) provide coordination of bar member pro bono volunteers for legal services; (3) consider and establish local priorities for addressing legal services and access to the court; (4) to provide a mechanism for providing advice on the distribution of resources to address local priorities; and (5) to provide input to the Association’s leadership on access issues including local funding, legal service board appointments and the development of local projects to address access issues. The next meeting of the Legal Services Committee is scheduled for July 14 at 12:15 p.m. at the SCCBA offices. All are invited to attend.
Another important task includes tackling common issues that affect all of the legal service providers. The Committee reviews local, State and Federal initiatives related to legal services. The Committee has analyzed proposals for the SCCBA’s Board of Trustees and the American Bar Association and examined the funding crisis affecting all legal service providers. The Committee has also tried to develop possible methods of encouraging solo or small firm participation in pro bono work.
Another important contribution of the Committee is planning an annual one day retreat which will provide continuing legal education for all legal services providers. Hillary Armstrong, Supervising Attorney of Health Legal Services for the Law Foundation of Silicon Valley, chairs the sub-committee that is organizing the 2010 retreat. The retreat serves as a training opportunity as well as a chance for all the agencies to get together and share common problems and solutions. The retreat has been scheduled for October 8, 2010, from 8:30 a.m. – 4:30 p.m. at the SCCBA’s offices.
Recognizing the current economic climate, this year’s program is entitled Surviving the Great Recession: Providing Legal Services in Difficult Times. Topics currently include litigation skills refreshers, legal ethics for lawyers and non-lawyers, and working with individuals with mental disabilities. There will be an emphasis on speakers from the Bench in order to obtain the judicial perspective on the provision of legal services and Bench/legal service provider interaction.
Legal services organizations perform vital work and still need your help. Please consider making a donation if you have not done so already.
On a final note, congratulations to Jim Towery on his appointment as the State Bar’s Chief Trial Counsel. Best wishes to Jim as he takes on this monumental task.
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