In what may be the first opinion of its kind, the North Carolina Bar Association has drafted a proposed ethical opinion addressing lawyers’ use of “software as a service” ("SaaS"). The proposed opinion concludes that lawyers “may contract with a vendor of software as a service provided the risks that confidential client information may be disclosed or lost are effectively minimized.”
Effective May 1, 2010, New Castle County, Delaware, has created a new division known as the Complex Commercial Litigation Division. Available for prescribed categories of cases, including cases with an amount in controversy of more than $1 million (excluding certain types of actions, including, e.g., claims for personal, mental or physical injury), the new division adheres to principles that shall govern the administration of each case. These principles include assigning the case to the same Panel Judge for all purposes through final disposition and compliance with Panel-established “uniform procedures” such as mandatory disclosures similar to those under the federal rules and the consideration of electronic discovery early in the case, among others.
In New York, Chief Judge Jonathan Lippman and Chief Administrative Judge Ann Pfau released a report recommending improvements for how electronic discovery is handled in New York State Courts. The report, based on “extensive research and interviews with experts in electronic discovery”, addresses the problems of electronic discovery, including cost and delay, and provides several recommendations on how "the courts can manage e-discovery in a more expert, efficient and cost-effective manner within the framework of existing law."
By Bruce H. Nielson, K&L Gates Partner, Washington D.C.
What Does the Regulation Require?
Every business that “owns or licenses personal information” about a Massachusetts resident must “develop, implement, and maintain” a comprehensive written information security program (WISP). “Owns or licenses” is defined as “receives, stores, maintains, processes, or otherwise has access to personal information in connection with the provision of goods or services or in connection with employment.” “Personal information” (PI) means first name (or initial) and last name combined with a Social Security number, driver’s license or state-issued ID card number, or financial account or credit or debit card number (with or without any required password, security or access code, or personal identification number).
The WISP must contain administrative, technical and physical safeguards for PI that are “appropriate to (a) the size, scope and type of business . . .; (b) the amount of resources available . . .; (c) the amount of stored data; and (d) the need for security and confidentiality” of the PI.
One of the great things about the current rule-making process is the ability to see change on the horizon and adapt accordingly. This year, absent any unforeseen objection or delay, Rule 26 will be amended to extend the scope of the work-product doctrine to encompass draft expert reports and most communications between experts and counsel. Currently, the proposed amendment (and all proposed rule amendments, for that matter) is being considered by the Supreme Court. Pursuant to statute, the Court must transmit prescribed amendments to Congress by May 1st. Thereafter, absent legislation to reject, modify, or defer the rules, the prescribed amendments will take effect as a matter of law on December 1st.
As of January 1, 2010, Ontario’s new Rules of Civil Procedure became effective, including significant changes to the rules of discovery. Among the changes/additions is Rule 29.1.03(4) Principles re Electronic Discovery, which states that “In preparing the discovery plan,” as is required by Rule 29.1.03 (1), “the parties shall consult and have regard to the document titled ‘The Sedona Canada Principles Addressing Electronic Discovery’ developed and available from The Sedona Conference.” In its explanation of the provisions of the newly effective Rules of Civil Procedure, the Ministry of the Attorney General specifically identified several of the Sedona Principles to be considered:
If you needed more proof that electronic discovery is not just for civil cases, the Western District of Oklahoma has adopted “Best Practices for Electronic Discovery of Documentary Materials in Criminal Cases.” Adopted on August 20th, these Best Practices recognize the lack of guidance in Federal Rule of Criminal Procedure 16 or in U.S.C. § 3500 regarding the production of discovery materials in electronic from and are intended to “summarize proposed electronic discovery practices.”
Included in the Best Practices are requirements that counsel for the parties shall, by a time prescribed, address issues including the volume of discovery, the litigation capabilities of counsel, and timeframes for production, among other things. Additional requirements include the production of electronically stored information in .PDF format, the production of an index identifying the “source and/or nature of the materials” produced, and mandatory good-faith discussions of possible cost-sharing measures when handling voluminous discovery.
A full copy of the Best Practices are available here.
By Robert Barnes
Washington Post Staff Writer
Tuesday, December 15, 2009
The Supreme Court will decide whether employees have a reasonable expectation of privacy for the text messages they send on devices owned by their employers.
The case the court accepted Monday involves public employees, but a broadly written decision could hold a blueprint for private-workplace rules in a world in which communication via computers, e-mail and text messages plays a very large role.
To read the full article, click here.
The Federal Judicial Center has released the preliminary results of its Case-Based Civil Rules Survey. The survey, as described in the Executive Summary “presents preliminary findings form a survey of attorneys in recently closed civil cases…The report covers discovery activities and case management in the closed cases; electronic discovery activity in the closed cases; attorney evaluations of discovery in the closed cases; the costs of litigation and discovery; and attorney attitudes towards specific reform proposals, and, more generally, the Federal Rules of Civil Procedure.”
Included in the section addressing electronic discovery were results indicating that issues related to the discovery of electronically stored information (“ESI”) were discussed in more than 30 percent of planning conferences, that the most common issues discussed were the “parties’ routine practices regarding retention of ESI and the format of production,” and that “approximately 50 percent of parties eventually producing ESI instituted a litigation ‘freeze.’”
A copy of the full report is available here.
By Anthony E. Davis
New York Law Journal
November 5, 2009
There are now several decisions determining whether employees can retain attorney-client privilege for e-mails sent to their lawyers using their employer-provided e-mail addresses and computers — reaching apparently inconsistent conclusions. This article compares and seeks to reconcile the cases, and to assist lawyers in advising clients on how to avoid the risks that such communications pose. The first of these cases, Scott v. Beth Israel Medical Center Inc., 2007 WL 3053351 (N.Y. Sup. Oct. 17, 2007), was previously featured in an article in this column ("Abusive Litigation Tactics and Loss of Privilege," March 3, 2008), but is revisited here because a New Jersey court recently reached a diametrically opposite conclusion on quite similar facts, in Stengart v. Loving Care Agency Inc., 973 A.2d 390 (N.J. Super. A.D. July 29, 2009). The article also reviews other recent decisions in the same general subject area.