Florida Lawyer News Services | Robbins Equitas

Court Rules In Favor of Homeowners In Pickup Truck Parking Dispute

FOR IMMEDIATE RELEASE

Tampa, Florida (December 15, 2008) – Chalk one up for the little guy. A Hillsborough County Circuit Court Judge has ruled in favor in of a Tampa Bay couple in a lawsuit filed against them by their homeowners association. The homeowners, A.J. and Doree Vizzi, were sued last year by The Eagles Master Association. The association wanted to prevent them from parking their pickup truck in their driveway, which they had done for 9 years before the lawsuit was filed.

The association claimed the Vizzi’s had violated one of the provisions of the documents governing homes located within The Eagles, a gated community in northwest Hillsborough County. In its lawsuit, the association says pickup trucks are prohibited from being parked in driveways and must be parked in a garage at all times. Circuit Court Judge Martha J. Cook ruled in favor of the Vizzi’s, finding the association’s interpretation of the parking restriction “utterly unreasonable.” The court said the more rational interpretation of the documents is “to require commercial vehicles, which are deemed unsightly in a residential environment, to be garaged and out of the public’s view.”

In response to the lawsuit, the Vizzi’s claimed they were never given a copy of the document containing the pickup parking restriction when they purchased their home in 1997. According to the Vizzi’s, a representative of the developer, U.S. Home, told them that pickup trucks were not restricted. The Vizzi’s also said they did not receive any notice of their alleged violation of the restriction until 2001 – four years after they purchased their home. The Vizzi’s contended that the association has selectively enforced the provision by granting some homeowners exemptions, and permitting the owners of other vehicles classified by the DMV as trucks to park their vehicle outside of a garage.

Attorney Daniel Anderson, of the law firm Robbins Equitas, represented the Vizzi’s. He said the parking provision “looks like something written by Yogi Berra,” and “the association’s interpretation of the provision just makes no sense at all.” Anderson said the court did not base its judgment on the selective enforcement issues raised by the Vizzi’s but limited its ruling to an interpretation of the legal documents governing the Vizzis’ home. Anderson said the court has not yet ruled on the Vizzis’ counterclaim against the association, which the court said must be submitted to arbitration.

Anderson said the association may continue the litigation and force the Vizzi’s to submit their claim to arbitration in an effort to avoid paying some of the Vizzi’s attorneys fees. “I thought the association would drop the lawsuit when it became clear there was no way they could win,” Anderson said. “They’re like the EverReady bunny of homeowners association litigation, they just keep going and going and going,” he said.

According to Anderson, pursuing the lawsuit entails a substantial risk for other Eagles homeowners who may be stuck with a legal bill that could amount to well over $100,000. “In these economic times, I cannot imagine that the other Eagles homeowners will be happy to learn that they may be subject to a special assessment in order to pay the attorneys fees incurred by both the association and the Vizzi’s,” Anderson said. According to Anderson, Eagles residents previously voted more than 3 to 1 in favor of eliminating pickup truck parking restrictions altogether. “One would think the association would have gotten the hint that maybe its members aren’t very excited about suing people for parking pickup trucks in their driveway,” Anderson said.

The Eagles board of directors is holding a closed door meeting tonight and Anderson said he believes board members will be discussing the recent ruling. “I hope they do right thing and work with us to bring an end to this litigation,” Anderson said, “we need to stop wasting the limited resources of our courts and get off of this crazy train.”

Judge Martha J. Cook’s
Order Granting Motion For Summary Judgment

Robbins Attorney speaks at VLJ conference

Robbins Equitas attorney discusses laws and regulations impacting international aircraft transactions at Very Light Jet Summit in Miami. 11/15/2008

Presentation

E-Discovery Requests – Are Your Clients Prepared? Are You? Part 2

This presentation was given on May 22, 2008 at Raymond James, 880 Carillon Parkway, St. Petersburg, Florida and sponsored by the St. Petersburg Bar Association In-House Counsel Section.

• E-discovery Requests Presentation Flyer

Attorney: Okay, carryover. [Referring to visual aid] What I was talking about before I put up the image of this handsome devil was all the innocuous-seeming devices that could be really ruinous, and the employee from hell, the guy with the horns and so forth that you need to watch out for,

Attorney: This is not so much a metaphor to help you communicate to people who need to know it as for the sort of thing I need to remind myself of always, and perhaps some of you out there might need to as well: I’m a lawyer. I think about how things can blow up. I think about how things can threaten. I’m not an entrepreneur. I’m not one of these people filled with boundless energy and optimism who make businesses work. And the danger is that you can convey these dark tidings in such a way as to push the business type in the direction of overcontrolling [and] overcompensating. That’s not their natural default setting, but it is mine, and it might be some of yours as well.

Attorney: Try to imagine a scenario whereby a company tries to enforce these policies by having someone like this [referring to visual aid] enforcing strict military discipline on the employees. I don’t know that that would work terribly well. What I said before was that you have to tailor these things to specific businesses [and] specific operating environments, and your business contact is an expert in respect to that. I certainly am not. Probably most of you are not. There is, of course, a point beyond which the attitude that I’m talking about – which is alertness to these sorts of threats – can be, or give rise to, a cure worse than the disease. The best illustration I can come up with for that was this [referring to visual aid]. This is probably an illustration of “live by technology, die by technology” . . . can you see how those warnings might have an inhibiting effect on things that are supposed to happen on a date?

Attorney: Likewise, there is a danger – perhaps most of you are not subject to it but I am – of making the croakings of doom unduly persuasive and dark. Take the extreme case. Let’s assume that I paint the technological picture so black that an employer bans computers altogether from the business. They go back to pencils, pads, and abacus-ses. Certainly there are an awful lot of productivity-enhancing computerized activities that have dangers. But the upside has always a downside. It is important that you structure your advice and bear in mind the attitudes of your listener in such a way that it doesn’t get translated into such a situation that the productive endeavors are squelched as well.

Attorney: When it comes to these policies – policies that we would recommend that clients adopt – certainly document retention policies, but also permissible use policies, things about not downloading things to the c: drive, not taking things off of the c: drive and putting them on the flash drive, and selling the flash drive on EBay, and so forth. More isn’t always better. Let me illustrate that with this, and then I’ll tell you more specifically what I mean. [Reference to visual aid]. The interesting thing is we’re actually headed in that direction. The Economist magazine did a projection based on the number of [shaving] blades. Apparently the power law curve would have us reach that after some length of time. But the current curve would have us get there right about now. I have to admit, shamefacedly, that I do have a six-blade razor in my life . . . and I like it. But no, more is not necessarily better. I’m not signing up for a Quintippio and here’s what I mean about that with respect to policies.

Attorney: If a policy gets so detailed and covers so much that it, well, “reads like stereo instructions” was the metaphor used earlier, what’s your compliance going to be like? There will be people who, despite good-faith effort, won’t understand it. There will be people who recognize that they expend more effort trying to comply with policies than do what they’re actually paid for. You’re going to have spotty compliance.

Attorney: And I could not agree more with what Mr. [Eric] Adams said with respect to these document retention policies, which was: if you’re going to have a policy, make sure the policy’s followed. Having a policy and not having it followed is a suicidally bad idea. Make sure the policy itself is kept in a reasonable balance. Keep it to a length that can be actually observed. Keep it to a level of simplicity so that it can be readily understood, readily applied, and so forth. That means that it will leave uncovered, no doubt, some contingencies that I, bless my little pessimistic soul, would probably like it to cover. But it will actually get more in the way of the clients, and that’s really the more important factor under the circumstances. Make sense?

Attorney: [Referring to visual aid]. Does anyone see a problem with this? Sir, you’re laughing in the back. Are you one of these nut jobs who think that NASA faked the Sun landings? [laughter] Well, what I’m getting at here: you saw Mr. Adams’ Pac-Man was about to devour the remaining little slip of paper information out there. Most of the documents are generated electronically, which means that they are subject to electronic manipulation. And they can be made to show things that do not reflect reality but rather reflect the hand of the malign artificer who is changing things. By the way, the things that I’m putting up here, you’ll see a little bit later, but there’s a site where they have PhotoShop competitions. They come up with a theme like “Fake History,” and people compete by taking photographs, altering them using PhotoShop, and then they get ranked and so forth. I don’t know if you’re familiar with that site. Anybody ever run across that site before? Worked with them? Okay. You can probably make out the logo on most of these little images that I put on the printout of the PowerPoint, but it’s www.worth1000.com, as in, “a picture is worth a thousand words.” Not all the pictures are all that interesting or all that fun. I tend to take the cream of the crop. But you will find some interesting things there.

Attorney: And just to illustrate this a bit farther [referring to visual aid] . . . If you ever see a frog that looks like that, are you going to call the police? Call the humane society? Call the zoo? I don’t know, but I will go ahead and represent to you that I’m fairly confident that no penguin ever – aviator goggles or no – went flying with the gulls like that. I’m fairly confident that no Amish speedwagon of that description ever competed in a NASCAR race. And I’m utterly certain that there’s no such thing as a hippopotapillar. [laughter]

Attorney: So, what should you be concerned about? That somebody’s going to fake-PhotoShop things? Well, I suppose that could come up in a corporate context. But what I’m thinking about is more along the lines of employee misconduct. And that is an area that can come back to bite you big time. This is something that has plagued me for the past fifteen years. Pre-digital, my initial exposure to it. That was a situation where, long story short, there was a 37(b) spoliation, death penalty sanction, punitive damages, so forth. I was brought in very late on the appeal end of it – actually on the certiorari petition end of it – which of course went nowhere. But it was a situation where an employee, attempting to cover his poster, did some things with documents that ended up looking like had been authorized by central casting. Now, dewy-eyed naïf that I was, I actually believed that central casting was innocent. I still do. I can still be dewy-eyed in that respect. But the danger is that someone not acting for the corporation will alter records in such a way that, when you have to make discovery response to an e-discovery request, the substitutions, the fakery, the hippopotapillar, will come into full light of day. And it’s sure going to look like your client has been engaged in some skullduggery. That sort of skullduggery is something that judges have no tolerance for. Hence, 37(b), et cetera.

Attorney: What I wanted to get across is the importance of bearing in mind how malleable, how changeable, how subject-to-tampering-with, e-documents of various kinds are. There are some exceptions to that, and to some extent this is limited by what I said before about the difficulty of erasing things. Usually the originals or “undoctored” versions will exist in some format somewhere and can be discovered as well. But that’s only going to happen if you’re casting a fairly skeptical eye on the documents that are produced by your own side, your own people. Which puts you in a situation of responding to an e-discovery request creating what is, essentially, almost an internal investigation. And that is something that is almost inevitable in this setting. It’s a matter of degree, but you have to turn the searchlight inward to look at your own document policies and your personnel involved, your procedures involved, and I’ll talk about some ethical implications of that in a minute.

Attorney: [Referring to visual aid] Okay, there’s the definition [of metadata] from the Florida ethics opinion: information about information, describing the history, tracking, or management of [an] electronic document. I’m not so much going to go into the actual definition of it or giving detailed examples of it. What I’m going to do is talk about three different metaphors for wrapping your head around it – unless, you’re probably up to speed already by now. But getting it across to people who need to know about it and who don’t have the sort of background with respect to discovery, and possibly, with computers that you may have.

Attorney: So, yes, metadata is the sort of thing that you get when you right-click on a file and say, “Properties”: when it was created, when it was accessed, and so forth. There’s much, much more to it than that. There can be documents that come back to embarrass a number of people, whereby earlier versions of a document are stored within the same file as the current version, so that you can roll it back to a prior iteration and you can see what the other person deleted. In fact, Kofi Annan, his office, the UN office, had a really serious embarrassment along those lines. It can come up a lot of different ways. Like I said, I’m not going to talk so much about the metadata definition and what it may consist of, as in ways of helping you help others wrap their minds around the idea that this stuff exists at all. Because once they understand that it exists, they can get the idea that they need to get control if it. They need to understand what it consists of. Perhaps [they need to] scrub it, if that’s the legitimate thing to do under the circumstances.

Attorney: Let’s start with the contraband cornstarch metaphor. [referring to visual aid and speaking to audience member] Ma’am?

Audience: Yes?

Attorney: I’ll ask you not to touch this just yet.

Audience: Okay.

Attorney: [to full audience] That is a scenario I’ve used every time I taught Professional Responsibility or Ethics. That is the beginning of the punch line. You have a client. You’re a criminal lawyer and you represent someone in a criminal matter. He is very happy with you. He has – you sprung him from jail on another matter. He’s about to flee the jurisdiction. He says, “By the way, I don’t want to have this on me in case I get stopped,” dumps it on your desk and says, “You’re doing a fine job and I’m recommending you to all my friends in Mexico,” hops on his Harley, and BRMMMMMM, he’s outta there. Okay. What do you do? [to audience member] What do you do?

Audience: You’re asking me?

Attorney: Yes, Ma’am! You have on your desk a glassine bag full of highly contraband cornstarch. What do you do? Being an ethical lawyer-type?

Audience: Leave the room, call my carrier . . . [audience laughter]

Attorney: Actually, that probably should have been the response to my earlier query about 4.4(b) – you have the duty to let somebody know when they have inadvertently sent you a confidential document, let him know so that he can call his carrier.

Audience: I’m a probate attorney. I would probably call the police.

Attorney: Any thoughts, anybody? Or at least the issue-spotting as to why she’s at a conundrum?

Audience: She doesn’t have a conundrum if she doesn’t open the bag. She should maintain plausible deniability of ignorance, right?

Attorney: Deniability I don’t know about . . .

Audience: He was sharing baking goods with her. It’s not cocaine.

Attorney: Uh-huh. Let’s assume, by the way, that it is cocaine. What if she reasonably believes it can be cocaine and she’s right? Sir?

Audience: You are in the crosshairs. A lawyer cannot participate in a crime. And he – there is no privilege as relates to a crime.

Attorney: Also, it’s not a communication.

Audience: My position would be to call the police and say, “I can’t identify where this came from, but . . . .”

Attorney: “You take it.” Okay. That is the least-bad solution, in all likelihood, at least according to the people that I’ve spoken with. There is not a good one. Other suggestions, over the course of the years, have been — I’ve done this at Inns of Court and various other settings as well – but one of them said “I’m going to throw it away.” That’s a problem. One, you’ve exercised dominion over it. You’ve established your own possession, not necessarily criminal possession, but possession.

Attorney: But from a standpoint of trying to wrap your head around metadata, what’s the biggest problem with destroying it or moving it or even touching it? Well, how about fingerprints? Fingerprints are evidence, right? Evidence of provenance, of where it came from, a connection between the possessor who put it on your desk and the actual contents itself, right? And if you throw away the bag, you probably not only have removed evidence of the instrumentalities of fruits of crime, but you probably destroyed that physical connection to that criminal. That’s not metadata. But it’s a pretty good metaphor for metadata. It can be highly significant whose fingerprints are on the bag, suggesting what mitts were on the bag of cocaine, right? Well, it can be highly significant who originated a document, where it originated, when it was last accessed . . . a long, long, long, long list of things. And that’s one way that you can explain it to the client . . . .

Attorney: How about this metaphor? Nonverbal communication. Words need not be spoken for meaning, significant meaning, to be conveyed. Here’s an example of that [referring to visual aid]. So, metaphor number one: fingerprints on the bag. That’s not metadata but might be something that would help someone who would otherwise has trouble grasping the concept, grasp the ideas that there are tags associated with data that can be very significant. This: nonverbal communication. Words are very significant, but sometimes things other than words, or accompanying words, are even more so, right? There wasn’t any doubt whatsoever about what was going on here.

Attorney: Context. I already picked on the probate lawyer. [to audience] Sir, may I pick on you?

Audience: Sure.

Attorney: Please, kindly read that.

Audience: Reads the following:

Attorney: Very good to me, man, you’re all over it. So you should have no trouble whatsoever with this [referring to visual aid]. How about it? Go ahead.

Audience: Read it in French or English? I don’t know that language.

Attorney: You did the first one just fine. What’s the matter?

Audience: I was whispering; you couldn’t hear it at the beginning.

Attorney: Oh, okay, fair enough! It says exactly the same thing only, yes, the scrambled-letter words are in French. It helps if you have a wife who’s from Quebec. But in any event, the reason you unscrambled the first part was that you got the coding of English on your brain. You were able to take a considerable amount of distortion and filter it out. Piece of cake. You are not, I assume, fluent in French. Therefore some difficulty.

Audience: My wife’s from Georgia.

Attorney: Ah, Okay. Georgia. Well, I don’t know that I could have set it up there in Georgian.

Attorney: But in any event, the third metaphor: that context, or background information, or background knowledge, can help you make a great deal of sense out of things that otherwise, at first glance, don’t make sense within themselves. So again, I’m less concerned with getting you the specifics of what metadata is or isn’t. It’s a deep subject. If you want to read up on that, type the word “metadata” into Google and zoom. You don’t even have to do it on Westlaw. You have a great deal of information at your beck and call. A recent article in the Florida Bar Journal on that, and then hits with this, lots more, you can get all you want.

Attorney: The hard part, I think, is getting the client contact from “Uh-uh, yeah, metadata bad, right, got it,” to actually getting some sort of understanding of what it is and basing an action on that realistic understanding. Going back to that very first image that I had up there, communication, if you know everything there is to know in this area and you communicate it accurately to the client, but the client can’t absorb it and turn it into meaningful, effective action, you haven’t achieved much, correct? So I don’t know that your client would actually need the metaphors. Probably, and perhaps most wouldn’t. But it would be such a bad thing if the client needed them and didn’t get them. You know your clients; you have a better idea of how to reach them; this might give you a sense of how to connect. Sir?

Audience: One of the things that some of the devices on metadata will do is – well, metadata will allow you to go back and take a look at prior drafts of a document -

Attorney: — mmm-hmmm, rolling it back -

Audience: — by essentially scrubbing the metadata, you can’t go back necessarily, at least with these rolled back you see the various drafts. The question I ask, though, if someone asks for a copy, in discovery, of all drafts of a document and you had scrubbed the metadata, don’t you have a problem?

Attorney: You have a huge problem. And that – well, it’s the same thing we’re going to get into with redaction, and that is: metadata’s a problem. Scrub it if you may legitimately do so. Redaction is if you’re allowed to legitimately do that. When are you allowed to legitimately do that? If you do so pursuant to policy, that will very much help. But the main consideration is going to be “should there be a litigation hold?” Are you in litigation in a matter where this is reasonably anticipated to come into play? So once the litigation situation has arisen, it’s too late. You can’t metadata-scrub.

Attorney: There are, as I say, the kind of programs that would let you do that – that will knock out the extraneous information and allow you to save, transmit, whatever else, only the information that you want to transmit. We’re going to talk about that a little bit more, not too much. But please do understand me to be saying that metadata’s a problem and you should kill it – I’m referring only to situations where it’s legitimate to kill it.

Audience: What is this? You quote this Florida ethics opinion on metadata, what is that? . . . Are they telling you what you can and can’t do?

Attorney: They’re telling you what you should and shouldn’t do. To some extent it deals with “can and can’t.” You can pull it up fairly easily, but I have a copy of it right here. The short answer is, it covers this whole subject. It’s not in great detail, but it’s a good place to begin with respect to specifics. And since you’re the one who asked, you get the copy.

Audience: Thank you.

Attorney: If anyone else would like a copy, it’s easily obtainable through the Florida Bar website. It has a link for ethics opinions. You can type the word “metadata” into it and that will pop up. But if you want it from me, send me an email and I will link it back.

Audience: The other observation I’m sort of waiting for in your talk is that in the discovery request, you should probably have specifically requested that thing.

Attorney: Yep. And multiple drafts, and all that other good stuff, to the extent that there’s a distinction between the two. Conceivably there exists a situation in which metadata is scrubbed legitimately pursuant to policy, but multiple physical drafts continue to exist. Or perhaps the multiple physical drafts were scanned, so that the original, let’s say, Microsoft Word document has been metadata-scrubbed and is saved, but there are other drafts of that same document saved in other formats. So that’s a situation where you’re right – you would request several different classes of metadata. But don’t think of that as being in the alterative to requesting the various drafts. Because a responsive document may exist to one or the other, but not both.

Attorney: Moving on, this is kind of funny. The Army had a report that it made public — I’ll try and keep this short in the interest of time – and it covered over a sensitive thing. The PDF version they produced, with these black blocks, when they produced the PDF files. Well, what did some enterprising reporter do but pull the document PDF and remove the blocks. You want to talk about metadata? This isn’t even metadata; this is just a document that can be edited. That’s a problem. If you have a situation where it’s legitimate for you to redact, you’ve got to make sure that information that you’re trying to protect is completely unretrievable to the extent that’s humanly possible.

Attorney: [Referring to visual aid] Isn’t that interesting name? SNAC? Particularly when you reflect that it’s a subdivision of the National Security Agency? Used to be super-secret and they used to say it was supposed to stand for “No Such Agency”? This is the bureau that does the . . . basically signals spying throughout the world. It produced an article on how to make sure that you don’t inadvertently trip over your redactions. I’ll just give you some idea of how important this can be.

Attorney: Now, how are you going to redact? This is not meant to be taken literally. This is largely a metaphor. But, again, let’s assume we’re in an e-discovery situation. Let’s assume that you are in a situation where you are allowed to redact. Let’s assume maybe there’s a ruling to that effect. You have to produce the document, but the document contains information that you legitimately can’t hold back. You do not want to pull it up in PDF and put a nice big black block over it and produce the PDF to the other side, because that gets peeled back. What do you want to do?

Attorney: I will tell you what will work. It’s labor-intensive and I’m not suggesting this as a comprehensive solution, but if you look at that first page of my document printout, that letter, that’s what I did. I took that letter and I exacto-ed out the bits I didn’t want people to see, and I put behind that a sheet of paper (you can affix that to the top of the copier) that said “redacted, redacted, redacted.” Why do you suppose I did that? Well, if you are redacting things . . .yes, ma’am, please?

Audience: You have to show [unintel].

Attorney: Right, because that’s relevant information in and of itself. Plus, if the redactions were subtle, it could look like you were altering a document and you’re not being forthcoming about having it altered, right? Well, in a situation like that, it ain’t comin’ back. You’ve taken the paper. You’ve cut out the language, and you indicated where it was by the word “redacted.”

Attorney: Why am I not contenting myself with just the usual elegant Spitzer . . . are you familiar with a website called The Smoking Gun? It had all these documents put up by like the Spitzer indictment – the indictments that refer to Spitzer as Client Number 9, I think? Well, commonly, we see that they used black magic marker. Why am I not satisfied with black magic marker, do you think?

Audience: You can see through it.

Attorney: You can see through it. There’s a significantly different index of reflection and refraction between the magic marker and the toner underneath it. Not uncommonly, when you run it through a photocopier you can just see through it. But even when you can’t, not uncommonly, if you put it up on Photoshop and you played with the contrast, oop! It comes right up. Which is why the only way I’m satisfied is if the text is just flat gone . . . those are the steps that I was talking about.

Attorney: But this is what I’m getting at more generally. And this is the part that can work more generally. I’m not suggesting that you Exacto-knife everything. It would be, probably, prohibitively manpower-intensive to do so. What I do recommend, though, is if you’re going to redact anything, do this. Pull it up in whatever format you’re going to manipulate it in, make your redaction, and then get it into another format. Printout would be nice. But if not that, some form of electronic file that has less capacity to have metadata, less capacity to retain within it the undisclosed information you’re trying to keep back. Like, for example, taking it down into .tiff or some other image file from the visually redacted part. By going down in sophistication, you’re decreasing the likelihood that the information essentially can be revived, because the more sophisticated the file, the greater the likelihood that it’s going to be helpful. That it’s going to help you by having prior versions recorded in ways that can be resurrected.

Attorney: [Referring to visual aid] There’s the ethics opinion that we were talking about before. You have an obligation to take steps to protect information. You have an obligation not to destroy it when it’s improper to destroy it. You see how those two things are intentioned, right? You have an evidentiary responsibility not to destroy it if it’s required, for example, in litigation. But subject only to that requirement, you have a Rule 1.6 duty of confidentiality not to let that information get into the public domain.

Attorney: Please note here, ” . . . material that the lawyer knows or reasonably should know is relevant to pending or reasonably foreseeable proceeding . . . .” “Reasonably foreseeable”? I’m with Mr. Adams. “Weasel words” bother me. That one bothers me. But in any event, it’s not a big stretch to see this as applying to metadata, but that is explored more in the ethics opinion that I referred to earlier.

Attorney: [Referring to visual aid] Here is something that I don’t think enough people know about. And you in-house counsel people are not off the hook with respect to this. You do realize that for most purposes an in-house counsel office is treated as a law firm for purposes of the ethical responsibilities of the attorneys therein? What do we have here? If you have managerial authority in the firm, or in the in-house counsel office, or wherever else, you’ve got to make sure that everybody else does the right things.

Attorney: There are two ways this can come back to bite you. One is that if you don’t take steps to prevent others from doing bad things, if you ratify things or if you become aware of them and don’t act on that knowledge, you become personally responsible, as well as the wrongdoer, for the ethical violation at issue. But this is something that I don’t think people are as aware of: the failure to have mechanisms in place is itself an ethics violation. If you have that kind of responsibility, you need to have those mechanisms in place to manifest, essentially, your managerial oversight in making sure that subordinate lawyers do not commit violations of the ethics standards. Again, it sounds pretty straightforward, but you would be surprised at how many people don’t do that and aren’t aware that it’s an independent source of problems. So I felt the need to throw this at you. When it comes to what the baby lawyers, let’s say, or the subordinate lawyers are doing or not doing with respect to the issues that we’ve been talking about here, that can be a problem.

Attorney: Even more fun [referring to visual aid]: nonlawyer employees. Essentially the same obligation. So what happens when a nonlawyer employee does, in reverse, the same thing that happened to me? Sends an incredibly hot doc[ument] by fax to someone else? Someone who shouldn’t have it? And, by the way, that happens all the time. Do you know why it happens all the time? Auto-dial is evil. Those little buttons on the fax machines. By the way, fax machines are going the way of the dinosaur. I know that. I know that we’re going to fax/emails. But the same thing happens there because of auto-complete, right? Know what I mean by auto-complete? You start typing in the email address, and whoop, the rest of it goes in? Well, you start typing in the name of the fax addressee, or the number, and whoop, it auto-completes. Someone pushes “send,” and we have a billion-dollar problem.

Attorney: I mean that literally. [At] Eli Lilly, there was a situation where one of its outside lawyers mistakenly emailed confidential information on XYZ information to Alex Barronson instead of Bradford Barronson, her co-counsel. Oops. Now, I believe Mr. Adams said that you shouldn’t write anything unless you are willing to have your mother read it. My similar metaphor is, “Always assume that something you write might end up with an Exhibit A sticker in the lower right,” but I also say, “You’ve got to be willing to see it published on the front page of the New York Times.” In this case, a little too literal. A story came out and it grossly negatively affected the bargaining position of the defendant in that situation. So that’s an example where auto-complete was a bad, bad, bad, thing.

Attorney: A similar thing with respect to fax auto-complete: going back to the dark ages and re-dial buttons, or the program buttons, you would have situations where the nonlawyer employee has this button here, which sends something to opposing counsel and, right next to it, this button here, which sends it to the client. How tough is it to hit the wrong button? And the confidential summary of negotiating positions, et cetera, goes off into the ether. All right. Now that employee is looking for another job. Problem solved, right? Well, maybe, if you – as a managerial type person – had policies and procedures in place to protect against that sort of thing, even if they failed. But if you didn’t . . . make sense?

Attorney: Now I’m going back toward spreading paranoia. I know I lurch back and forth between saying, “Watch out for this! Watch out for that! Don’t let it paralyze you! But don’t let this happen anyway!” Okay, it’s dynamic. It’s a trade-off. You have to continually go back and investigate it. [Referring to visual aid]. Oh, I had to do this one. [Audio-visual presentation]. So, yes. You have an ethical obligation and you have managerial responsibility within your firm or your legal department, to do this: [audio-visual presentation].

Attorney: Now let’s get to the really scary stuff for the in-house folks. We talked about this a little bit before. I think that usually e-discovery, responding to an e-discovery request, will take on at least some of the characteristics of an internal investigation. When you find that something has gone on that ought not, then it’s going to be an internal investigation. And what does that lead to that ought to cause nightmares to in-house legal folks? Right there: adversity between, well, basically, your client and your client’s sub-constituents. And that’s something that, again, a lot of people even in in-house corporate settings don’t necessarily wrap their heads around completely. I’m not insulting anyone present. I’m sure that no-one who is listening to these words would make these errors. But some of you are outside counsel, and you might need to make inside counsel aware of such things, so let’s go through it.

Attorney: You represent the corporation. You’ve been representing the corporation. You represent the organization, not its constituents, [that's] fairly straightforward. But that gives rise to implication that are not as immediately obvious. What happens when you reasonably should know that the organization’s interests are adverse to those of the constituents with whom the lawyer is dealing? You’ve got a situation where someone has done wrong. You have, perhaps, a supervisor for that person. There is a question, possibly, of liability flowing upwards-downwards-sideways. You have a very clear sense that there may well be a situation where your client, the corporation, is best-served by throwing one of these people off the bus. If you reach that conclusion, guess what? You’ve got to tell them. Well, that’s uncomfortable. It’s inconvenient. But if you don’t . . . problem!

Attorney: Another problem: you don’t represent the CEO either. You don’t represent any of the bigwigs at all. You represent the corporation. So what happens when someone like the CEO, or some other bigwig, says, “OK, we’ve got this problem. They’re looking at me. You represent me.” (“You” meaning in-house legal person.) Well, in-house legal person, or outside counsel for the corporation, represents the corporation. What do you do if there is adversity, or potential adversity, between the corporation and the CEO or whoever else? Trust me, the CEO is unlikely to be sympathetic to your position on that. But we have the ethical obligation to address it. And you have to go through the ordinary analysis for a simultaneous conflict, which I will pretty much spare you, [as long as you understand] that adversity.

Attorney: The right way to handle this, assuming that you need to, want to, have to, represent the CEO in addition to the corporation, is [to] get a waiver. And make sure that you meet this test, the four-factor test under [Florida Rule of Professional Conduct] 4-1.7(b). Go ahead and dot your I’s and cross your T’s on that. Memo to file covering your anatomy, right? Good thing to do. Sir?

Audience: This brings up another quandary. Basic advice in any setting when you’re working an internal investigation is not to reduce what you find to writing, on the theory that it is probably discoverable. Once you produce a conflict waiver, that is a discoverable document in which you are identifying, in some fashion [that] there is a basis for a conflict. How do you deal with that professional issue?

Attorney: I’m not sure I accept the premise that it would fall outside the attorney-client privilege for a good portion of that. That’s an unsatisfactory answer for right now. Let me throw out another unsatisfactory answer. I need the rule book for a minute. But in the model rules, I’m sure, and in the Florida rules I believe, there is a separate exception that covers outside counsel brought in for the purpose of conducting an investigation. I’m pretty sure [that] would take care of the confidentiality clause with respect to that. Like I say, I’m not one hundred percent on that answer, and if you want to shoot me an email and let me crack a few books, I can do a better job on it.

Attorney: [Referring to visual aid of Florida Rule of Professional Conduct 4-1.8(f)] Here’s another one that is a pretty good candidate for, “walk through the steps, cover yourself, document it,” subject to the stipulation that we just talked about a moment ago. You’re not allowed to accept compensation from someone else – someone other than the client – for representing the client. Well, if you just made the CEO legitimately your client – or, which probably makes more sense, a lower officer . . . – you’re obliged to follow that. You’re obliged not to let the corporation, or other officers who are in the corporation or employees of the corporation, pressure you about how you represent this other person who’s now part of your legal representation, as much a client as the corporation itself, now that you’ve done the proper thing with respect to the waivers and so forth. I almost never see this done. When people do the other things right, when they go through all the steps and do all the right posterior-covering, I seldom see any evidence that this was ever part of the equation. So I’d recommend that you ensure that you check that off as you go on.

Attorney: [Referring to visual aid of Florida Rule of Professional Conduct 4-5.4(d)] Here’s a fun one. Same sort of idea, but it is an ethical breach for you to allow the corporation to dictate your professional judgment as it relates to the representation of the corporate subordinate. It’s the same sort of thing, coming from a different angle. [Referring to visual aid] This one I’ll bypass.

Attorney: [Referring to visual aid of Florida Rule of Professional Conduct 4-4.2(a) and 4-3.4(f)] Here’s one that can come up in the metadata context. Again, I tend to focus on those ethical issues that are going to get you from the blindside. The most interesting ethical problems to me are the ones that – people who are ethical in the ordinary sense, people who are perfectly well-imbued with Sunday school morality and would never do a bad thing intentionally, nonetheless run afoul of this sort of thing. If you’re in a situation where you don’t want someone to independently be giving out the information, and you can see why the corporation would want to have a unified policy with respect to that, you can’t even ask unless – and you’ve got the employee bit, let’s assume – the “and” requirement has to be met separately. It has to be reasonable to believe, on the lawyer’s part, that the person’s interest will not be adversely affected by refraining from giving such information. Huh? Where did that come from? Why do you have to be bearing in mind this other person’s interests in giving out the information, assuming that it’s otherwise legitimate for this person to do so? I have never really understood where this came from. I did some research on it the last time I talked on this, and it still doesn’t make a heck of a lot of sense to me. For that reason, I think of it as counterintuitive. I think of it as the sort of thing that someone who is striving to be ethical and all good things might not see coming. And it could arise in the context of an e-discovery request.

Attorney: [Referring to visual aid of Florida Rule of Professional Conduct 8.5 and Model Rules of Professional Conduct 8.5(b)]. More potential for ethics conflicts, and here I’m talking about conflicts in the sense of conflict of laws. The Florida rules are not as specific about that as they might be, and bear in mind we’re talking about Internet-type settings in which you have communications banging back and forth across various jurisdictions. It’s very common, as the Comment says, for lawyers to take action in more than one jurisdiction, even if the actions are not constituting the practice of law. So it can be that two jurisdictions’ principles apply. Note the Model Rules have this language here, basically to resolve the issue and provide a safe harbor so that the lawyer could not be put in a situation where the lawyer is subject simultaneously to two competing ethical requirements.

Attorney: In the interest of time, I’ll spare you this example. You can read it in the printout. But this is a real-world situation. Again, I came late to the party on this one, but it was a real-world situation in which – due to a multi-jurisdictional series of events — a single law firm was subject to a mandatory requirement in one jurisdiction to do something that another jurisdiction forbade. Now, it doesn’t often happen that way, and increasing the ethics rules are far more standard because of the effect of the Model Rules that are being followed more and more closely. But, given that it’s so godawful when it happens, and given the nature of the – almost inherently interstate nature of the — Internet communications, [it's] a very good idea to bear this in mind.

Attorney: [The] last bit here is the idea that you can avoid some of these problems, at least, with outside counsel by going for a limited representation rather than representation for all purposes. [Referring to visual aid of Florida Rule of Professional Conduct 4-1.2(c)]. Most people are aware that this can be done. Informed consent in writing is required. I don’t know that everyone always agrees with that, but it’s a good idea to have a representation letter . . . representation agreement, something re-iterating the specific scope of representation. I am not suggesting that that will result in this [reference to audio-visual aid].

Attorney: I don’t suggest that it’s a cure for everything. I don’t know that it gets us out of all the other various problems. But, to the extent that you are in a situation where you’re deciding whether or not to take representation, some of these issues will probably present more than one possible way to square the circle.

Attorney: However, having thrown out a possible solution, I have to throw out, of course, a caveat. There’s always going to be something of a problem with how the client may respond to your proposing to give less than utter full service, and here’s my illustration of that [referring to audio-visual aid]. When it comes to that, I will rely upon your knowledge of your client; I’m just throwing out the alternatives for your use.

Attorney: And that is my time. I will not go past my time. I thank you for your patience!

E-Discovery Requests – Are Your Clients Prepared? Are You?

This presentation was given on May 22, 2008 at Raymond James, 880 Carillon Parkway, St. Petersburg, Florida and sponsored by the St. Petersburg Bar Association In-House Counsel Section.

• E-discovery Requests Presentation Flyer

Attorney: Did anyone read the Calvin & Hobbes cartoon? Apparently he doesn’t get along so well with this girl. She is unhappy with him and attempting to communicate that. In his alternate fantasy world, he perceives this confrontation: Our hero regards the strange alien. It seems to be trying to communicate.”

Attorney: I’m going to treat this as an exercise in communication, not only – or even perhaps even primarily – communication from me to you, [but] communication from you to the people you serve. The things we’re going to talk about – metadata, some of the other issues arising from the many issues Mr. [Eric S.] Adams [Esq.] addressed – are critically important. I’m fairly confident that people who walk out the door today will understand them. The question then is conveying that information to others who need to know it. If you’re outside counsel, speaking with in-house counsel; if you’re in-house counsel, speaking with the people you work with in the corporation, and so forth.

Attorney: One of the things I’m going to attempt to do is, yes, talk about some of the technical computer-geek backgrounds to an extent. But what I will try to do more is give you images, ideas, metaphors, ways of expressing these ideas to people that you’re going to need to instruct and help. So that’s my effort with respect to trying to communicate.

Attorney: Now, in doing so, I’m going to be dealing with different comfort levels. I’ve already heard some people discussing their various comfort levels with this general subject matter. I know there are some tech geeks in this audience, some people who can take this information more or less directly as apparently this gentleman seems to be able to do. There are also some leaning slightly toward this end of the spectrum [reference to visual aid] who are not as entirely, utterly comfortable with these issues. I am going to attempt to frustrate both groups equally by going pretty much down the middle.

Attorney: As far as my methods are concerned, I’m going to try to illustrate things visually when I can. That seems to help out a lot of things. One of the things it helps out with, of course, is the digestive trance which probably some of you are going to be slipping into [during] that one- or two-hour period after lunch. I will see if I can keep as many of you non-comatose as possible. It’s always a challenge in the early afternoon, but I will cheat. I will use audio-visuals wherever humanly possible.

Attorney: I will have to ask you to bear with me, though. One of the slogans you’re going to hear from me in a few minutes, and unfortunately I’m going to prove it, is “live by the tech, die by the tech.” The sound levels on my computer are not necessarily playing nice with the sound amplification equipment we have here.

Attorney: [Referencing visual aid] So this might be indicative of some of the things you’re going to be seeing, both in this hour and in the hour to follow. Huh? Bullfight? Riot? What on earth was that supposed to symbolize? Actually, counter-intuitiveness: something I’m going to expound upon in a big way when we get to the ethics stuff I’ll be talking about that in greater detail.

Attorney: Not too long ago I put out a five-hour CLE DVD, basically on that theme: how can good, honest, hardworking people nonetheless fall afoul of the ethics rules? By never seeing it coming. By being in a situation where the ethical violation was so counter-intuitive that they were trying their hearts out to be ethical. They missed it, and, boom, unethical. So, to the extent that I can – and, as I said, I will do more of this in the second hour – I’m going to aim this presentation toward those areas where you might not see it coming. Or the people you’re attempting to instruct or bring up to speed in these areas might not see it coming.

Attorney: The handout. I believe everybody has that. You’ve got my contact information should you want that. We’ve got the firm logo nice and big up there. Contact information’s on the right. You’ll notice several parts of it are chunked up and say, “Redacted, redacted.” We’re going to talk about redacting later on. This is an example of a very low-tech but effective way of doing it . . . I am referring, of course, to permissible redactions. The reason it was this letter is that I was able to have some fun with the first three lines there. It was a copyright infringement case for software. This guy put on the Web a “how-to” video on how to crack the protection on the client’s software. And in that video, he said, “You can put this on 400 computers if you want, using the same process. Screw them!” My first line was, “This firm represents ‘them.’” I just had so much fun with that, I thought I would use that as my example. Why not?

Attorney: The rest of the document consists of just the PowerPoint itself – I did kill trees, I confess. There are maybe other things I refer to that you would be interested in getting copies, I’ll make the same offer. If you want to follow up on anything that we cover, you can try to email me. You’ve got my office email in the letterhead. That is what I use for former students and for people taking CLE from me. I am no longer a professor – it’s sort of a misnomer – but I figure I’ll just keep it for convenience’s sake. If you shoot that to me, it will bounce off in two directions. It will go to both to my work and it will go to my home.

Attorney: “Live by the technology, die by the technology.” As I said, it’s a theme. We have a scheme to cheat a creditor and the long-story-short there is that, in this case, husband sends wife an email indicating that they should not leave a paper trail regarding their arrangement. Think about that for a second. Sending an email saying, “Let us not create a paper trail! We must not do this! Else our nefarious scheme will come to no good end!” Well, it came to no good end. And of course the judge is right. An electronic trail is more enduring than a paper one, for reasons Mr. Adams addressed and that I’ll be addressing further. [reference to visual aid]. This one is a decent illustration of “Live by the tech, die by the tech.” I put that up there in something of a self-mocking vein. I love my laser pointer. And, to the best of my knowledge, it has never “gone off” unintentionally and made like a light saber, but fair enough.

Attorney: Now, these are some things that, again, Mr. Adams did a fine job of laying out specifically for us toward these ends. I’m backing up a bit and going at it somewhat more abstractly. The objective, from making good decisions in this area, breaks out into this sort of thing: you want – if you are honest, if your client has done nothing wrong – what you want to do is be able to demonstrate that, to appear that way, from a public relations standpoint . . . as well as a remaining-in-good-odor-with-the-judge standpoint: not a small issue. But in a litigation format, you’re sort of guilty until proven innocent, right? If you’re the subject of a request, you need to be able come forward and prove, lay it out, show what you’ve done. And that’s where document retention policies and strict adherence to those are vastly important.

Attorney: Here’s the problem. A lot of things I’m going to talk about are a little toward the paranoid end of the spectrum. They’re going to be a bit scary. The danger is this: you take what I’m saying so seriously. You advise clients accordingly. They get so paranoid that basically they can’t go forward. If you attempt to maintain perfect standards with respect to all of these things, then by definition I think you’re going to slow down. You’re basically going to grind to a halt. There’s always going to be sort of a cost/benefit analysis involved in that. So, although I am going to stress the dark, evil, nasty stuff out there, please do not understand me to be saying that it is more important to avoid these bugaboos that I’m laying out than it is to, oh, I don’t know, run a business and make a profit. You want to reconcile those things to the extent humanly possible.

Attorney: And that’s actually something that I wanted to illustrate visually. I’ll try not to throw this at anybody, but – iron plus sulfur means what? At least when it’s sparkly like this? Well, a geologist knows iron pyrite, aka fool’s gold, right? I keep this on my desk to remind me I’m talking to non-lawyers. If I say something bad, if I’m describing a danger, it doesn’t meant the end of the world. If I’m describing something good, a positive development, it doesn’t meant that “you need do nothing different, everything’s fine, go forth and ignore this legal dispute.” So I wanted to throw that out as sort of a cautionary measure in turning around and communicating with people who need this sort of information. Make sense? Okay.

Attorney: That is one temptation that the people in the business community will face that you need to be aware of. [Referencing visual aid] Let’s assume . . . this is a duck who really knows how to migrate, right? Unlike these poor schlubs out here doing it the hard way – winging it – this is a laid-back feathered friend. Let’s assume that you clone Mr. Adams’s knowledge of this subject and you manage to put it directly into the brain of your business counterpart, and that it is implemented flawlessly. Problem solved, right? That’s your business contact right there, migrating off into the future. What’s the problem with that scenario? Well, we’re going to talk a lot about PDF – that’s the Adobe Portable Document Format. How long has that been around? Forever? In technological terms, you’re absolutely right. But it was barely coming on to the scene twelve years ago. And consumer-level or mid-grade business computers simply did not have the power to do that sort of image processing as recently as 1992-93. As a consequence, what you need to bear in mind is that all this technological advancement and change is not only happening all the time but the rate at which it’s happening is increasing. Things are changing fast, the rate of change is changing, the direction of change going faster.

Attorney: Which means that the whole issue of staying ahead of the sort of problems that Mr. Adams described is a dynamic one. Even if you have perfect policies in place and a perfect understanding of the way things stand now, that’s not going to be enough. So, rather than attempting to take a snapshot in time of what the perfect policies are, you’ve got to have a system in place whereby you’ve got periodic reviews, periodic adaptations, what’s new, what’s the latest and greatest means of document storage, what are the problems with it, and so forth. So one of the things I want to get across to you folks is my sense of the matter: that this isn’t a body of knowledge, this area we’re talking about. It is really, more than anything else, an attitude. It’s something that needs to be continually re-addressed.

Attorney: Root versus branch. Let me jump to the bottom. Litigation is evil. I say that as a litigator. In my original incarnation, I spent six years as a litigator, then nine years as an academic. I am now a recovering academic and a litigator again. And here I am saying that litigation is evil. What do I mean by that? Well, in the example that I have used – it is after lunch, after all – is that it’s similar to a proctoscopy in the sense that it is unpleasant. It is intrusive. It is expensive. It is something to be avoided if at all possible. I presume that’s something that everybody in the room can get up to speed with, but if not, talk to anybody on the business side. Business people, I think, have this in their DNA.

Attorney: So you want to avoid it. Great. Well, what do I mean by “root versus branch”? Once you’re in litigation, and you’re subject to an e-discovery request, you’re going to have major problems of the sort Mr. Adams discussed, some of which I’ll go into in some more detail. But the same sort of procedures that will let you do a good job of assembling good responses to e-discovery and so forth will do a good job of preventing litigation from arising in the first place in response to information going astray. Mr. Adams referred to this in several places, but I’m thinking in particular of the disgruntled former employee, something we’ll be talking about a bit later. So a couple of fancy – Greek words? Latin words? – in either case, a medical model: prevention is better than cure. Prevention is cheaper than cure. When you’re talking about the sort of mechanisms you want to get in place with your business counterparts, you might want to talk in terms of costs and characterize this not only in terms of litigation response but litigation avoidance. I think you’ll find that litigation avoidance puts a bigger smile on their faces. Right? It’s a lot more cooperative. It’s a good thing.

Attorney: [Referring to visual aid] Yes, technically we are pedestrians and therefore have the right of way. Actually, that’s a throwback to the point I was making about how, if you are clean, if you are in the right, technically, but you can’t demonstrate it or you can’t avoid litigation, you have to go through the expense and the disruption of that, it’s cold comfort. The same sort of thing here. It’s entirely true that they’ve got the right of way, let’s assume. But is that going to help them under these circumstances? There are many situations where it’s a whole lot easier to avoid a train wreck than to clean up after one.

Attorney: Ethics. I wasn’t able to keep all the ethics in the first hour. The second hour is going to be pretty much all-ethics-all-the-time for purposes of our accreditation. But this we have to talk about upfront. Backing up: we lawyers, whether outside counsel, in-house counsel, otherwise, have this obligation with respect to client information. Now, there is a bad habit that people get into. I try to inoculate my Evidence students against it: talking about how lawyers are obliged by the attorney-client privilege to keep the client’s secrets. Not true, exactly backwards. The duty of confidentiality flows – well, under common law from the agency relationship, but specifically – from the ethical obligations. You’re ethically obliged to keep things confidential. The attorney-client privilege protects you when you discharge that obligation. When you keep your mouth shut, pursuant to the obligation to keep client confidential information confidential, the attorney-client privilege is what prevents you from being taken to the pokey, being put in jail, contempt, or whatever else.

Attorney: The reason I want to draw that distinction here is that there is a dangerous place – I’m going to mention this only fairly briefly in the context of e-discovery, but it’s something always to be borne in mind – notice those two words there? “Information relating to the representation of the client.” Hmmm. Is that broader than, or narrower than, “communications from or to an attorney, between an attorney and client, under circumstances indicating confidentiality” for purposes of obtaining legal advice? I’d say it’s broader. I’d say it’s a whole lot broader. I’d say it’s pretty much “information you get in the course of the representation,” not necessarily indicating the source. So you have a situation where the privilege itself is a lot narrower than your duty to keep information back. Again, I can’t spend a lot of time on that and there’s no need to go into it in great detail, but I’d appreciate it if you’d bear that in mind. Just stick it in the back of your head while we go through the rest of these things, because it ends up being pretty important. What you really want to avoid is putting yourself in a situation where you have information that falls within your duty of confidentiality, but outside your protection under the attorney-client privilege. That’s what’s called being “north of the rock and south of the hard place,” right? You don’t want to be there.

Attorney: Okay, a quick mention of other privileges. There are lots of them. Trade secret is one that’s going to be near and dear to a bunch of your business contacts. With respect to attorney-client privilege, trade secret privilege, all that good stuff, I’ll just mention that it’s critical to treat the privileged matter as privileged matter. You treat it as confidential and need to be able to demonstrate the steps that you’ve taken to treat it as confidential. And that is something that you’d think is utterly obvious, and I hesitate even to mention it, but particularly when it comes to things like trade secrets, sometimes your business contacts won’t necessarily see it in that light. This is stuff they deal with every day. This is stuff that needs to be communicated and acted-upon. What I’d recommend you do is just bear in mind that they’re of the same general nature, and — particularly in responding to requests along the lines of e-discovery – need to be treated just as gingerly. Certainly it can be damaging for attorney-client communications to come out in the open, but it can be devastating for trade secrets (assuming they’re essential to the business) to come out as a consequence. No particular surprises there.

Attorney: I mention this quickly: another ethical obligation, since I was talking about privilege. In those situations where you have a former employee, whatever else, you’ve got a situation where the privilege is about to be essentially made moot by massive dissemination. You might be going for some sort of ex parte proceeding to stop that: a temporary restraining order or whatever else. Just bear in mind that if you’re alone in front of a judge — which is an unusual thing for you to be, [because] typically you’re ethically prohibited from being there – you have the duty, in a sense, to be counsel for the other side. Also uncomfortable to do, but it’s very important for you to recognize that if you have to be there, you don’t have the time for anything else, you don’t even have the time to find out who opposing counsel might be, assuming the court will entertain an ex parte TRO or something along those lines, the ethical obligation calls upon you to make sure that you’re disclosing everything that the judge is going to need, even when those things are adverse.

Attorney: Moving on: wayward documents and ethical obligations. I wanted to mention this briefly. This is something that I have had experience with. I’ve received faxes – one from a company that we were directly going up against – apparently intended for – it’s client contact. It laid out the entire history of the negotiations to date, the negotiation objectives, the high/lows, the strategy . . . it was interesting reading, I freely admit. Now [nowadays] there are some rules that apply to a situation like this, but there are more questions than answers. If you get a document that you believe was inadvertently sent, you have to promptly notify the sender. Now, notice, that does not answer a bunch of other questions: are you under an obligation to return it? Are you under an obligation to keep quiet about it? Must you avoid keeping a copy? Does that waive privilege? What happens if the document itself was wrongfully obtained by the sending person? Does that raise some interesting questions! Say it’s a purloined document, obtained by a breach of trust, and sent to you inadvertently. Under those circumstances, what do you do? You do some very heavy hard-rocks research that I have not done in this area. I will just mention that it raises some ugly issues. But going back to your obligation, you have to let the sender know that the sender has really, really stepped in it. And that’s your only overt duty under the ethics rules. Kind of delicate, don’t you think? What do you do? “It is my responsibility to inform you that . . . .” Anyway, those are the minimally necessary ethics points to tee up what we’re going to talk about next.

Attorney: Document. Okay. Clay tablet: cuneiform inscription. It was all fairly simple until comparatively recently. It was a physical medium, and marks thereupon somehow. And we’re moving away from that. Of course, Mr. Adams had his four P’s, so I have to have my four M’s. I’m straining a bit to get it there, as in “Means of Transmission,” but if these things are not the definition of a document, they’re certainly the things that are most critical with respect to e-discovery issues.

Attorney: You’ve got the Message itself. What is the Message itself? What is the intelligence? What is the expression that was fixed into a tangible medium of expression? You’ve got to watch out there. We’ll give you an example in just a second, but some more Latin terms: superscription, interlineation, overscoring. What happens when someone annotates something? I’m not going to go into that in great detail. Just bear in mind that, like the example I’m going to show you in a moment, in my view, really only the annotated version is a complete document and arguably they’re completely separate. The virgin document and the annotated document are probably going to have to be addressed differently, produced differently, and so forth.

Attorney: Means of Transmission. We’ll talk about the Internet aspect of that a good bit.

Attorney: Medium? Wet clay for cuneiform. Paper for most of our recent civilized history. And what is it now? Silicon, right? Phototemplate lithography onto itty, bitty, tiny little transistors on a silicon substrate? It gets pretty weird. In fact, it’s getting weirder. They’re coming up against the point where they’re starting to encounter physical barriers as to how small they can make things, and they keep getting around those barriers by increasingly clever means that are requiring the development of actual new physical theories. Good stuff!

Attorney: Metadata. Going to talk about that a lot: data about data.

Attorney: [Referring to visual aid] What do we have here? Oh, yes. Same document as a clean copy. I don’t know. This isn’t one of the sexier Nixon White House documents. This is one that happened to be released by the Nixon museum not too long ago. So if you imagine that without any blue on it, that’s the document as it originally existed. But you can imagine how it would change the character of it. Here’s an approving comment by Haldeman of Ailes’s suggestion, or one of his suggestions.

Attorney: Now, let’s imagine there’s a memorandum in which somebody advises a corporate higher-up that a certain course of action would be illegal! Immoral! Discourteous! Fattening! And CEO, in the margin, writes, “We’ve go to get rid of this wimp,” or something along those lines. Or, perhaps in a more virtuous way, “Gosh, we’d better take all steps necessary to avoid that!” In either case, it’s fairly significant with respect to how the corporation’s responding with respect to that particular issue, right? Fair enough.

Attorney: So when you say you’re moving away from a paper-based society, yes, we are. But people still tend to print things out for review. They tend to get read that way. They tend to get annotated that way. That will be less so, I think, as we get the younger people moving up, the people who basically ate electrons with their Alpha-Bits and are born with PDA in hand. But until we get to that point, where everyone is annotating documents electronically, the physical version will continue to have some significance, but I agree completely with what Mr. Adams said about how, due to storage cost constraints and so forth, it’s becoming common for documents to be stored electronically. That’s becoming true even if the originals travel electronically. So they get imaged, the originals get destroyed, [and] the image is still available. But this is a different document in several meaningful senses from the virgin copy.

Attorney: So what happens if you have both? If you have a blank copy and you have the annotated copy, what happens if you only produce the blank? Well, sooner or later, the other one’s going to surface. Basically, there’s no way to hide anything anymore. Not like the good old days, when Oliver North could shred things, and by-god, they stayed shredded, right? We’ll talk about that in a minute.

Attorney: Transmission via the Internet. We’re not going to go into too great a detail on that, because most of the problems don’t arise by covert interception or malign acts. I should point out that, just by the nature of the Internet, the stuff that you send around bounces. The whole Net was set up in such a way as to allow at least universities and military commands to be able to communicate when cities had been wiped off the map by nuclear attack. So it’s very robust, with lots and lots of redundancy. The signal tends to bounce off of lots and lots of different nodes. And guess what? Copies are created at every single one of those points, although usually they are transitory. The ones that are permanent are usually the one at the source and usually the one at the destination, the model there being email, right? You send an email, you have the email, the recipient has the email.

Attorney: I’ll mention just briefly that there are some issues with respect to vulnerability in transmission. How many of you actually do use encrypted email in communicating with clients? OK. It can be done. It’s comparatively simple. It’s comparatively cheap. There is a learning curve on the front end, both for you and for the client, that’s usually not worth it. However, consider the possibility of your needing to do that if you are particularly a subject of interest for, say, the federal government. If you have clients who are, say, Saudis, I think there’s a pretty decent chance that your emails are attracting some attention between source and destination. Bear in mind that in that sense an email is utterly non-secure. It is an address with information attached to it, and it goes bouncing around these different nodes. It’s very much like a postcard. That usually doesn’t matter, because usually the sort of people who’d be interested in reading your mail don’t have the means of tapping in. It can be done but it’s expensive, it’s dangerous, it’s highly illegal, and usually the government’s going to do it if anyone’s going to.

Attorney: [In response to an audience question] You’re not just emailing her, you’re emailing everyone she’s ever emailed. I should mention, and I’m not going to say too much about this because this is farther afield, but general computer hygiene. Maintain good firewalls, good anti-virus protection, all of that’s important. Because, not uncommonly, we get one of these email viruses – worms, actually. They will transmit information they find within the email programs that they spread to. Usually that’s address information rather than the body, but even the address information can be pretty dangerous stuff.

Attorney: Medium. Now we’re getting back to the chips. Like I said, the good old days! When you could shred stuff and it stayed shredded! The best illustration I could come up with for that is this [referring to visual aid]. Paper doesn’t do that, generally. But electrons do. They keep coming back. Actually, I’ll talk about [that] right now. How about this: the difference between “delete” and “erase.” What does it mean to “delete” something? To delete, in one sense, is to press the “delete” key [and verify that this is a delete key? It is.] For purposes of the security of documents in a visual environment, [reference to visual aid] not even close. But “deleting” is not terribly helpful, because all “deleting” is . . . well, it can be as simple as just the removal of the first byte at the head of a long identification string, taking it out of the accessible portion of the table. But that does not make something irretrievable. It doesn’t even limit its retrievability much, at all. The only way you can do that is by erasing the material. How do you do that? You can’t do that either.

Attorney: In fact, “erase” is misleading in this context. Actually, it shares the same root as the German “ausrasieren,” which means, “to wipe out,” “to annihilate,” “to destroy,” based on the Latin word “rasa,” meaning “blank.” You think in terms of being able to erase media. “Erase the tape,” right? “Erase a hard drive.” For technical reasons that I won’t get into, I would just like to tell you it doesn’t work that way. You can physically destroy the medium, but short of that, you cannot put the information past use. In fact, even multiple re-writes over discs will not necessary make it irretrievable.

QUESTION: I was going to ask you about, they call it “DOD Overwrites,” or Department of Defense multiple, rewrite ones and zeros over every spot. Those are still susceptible?

Attorney: You’re right, I would bet on that against any privately available means of recovery. But when you go down to the point where Heisenbergian uncertainty, where we’re almost talking about almost individual atoms, those physicists, I think, will ultimately tend to beat the people who put those programs together.

Attorney: Usually the destruction of the physical medium is the only way to make sure. Now, does it make sense to think in those terms? Does it make sense to think in terms of “that’s what we have to do?” Well, no. Just like I said, paranoia past a certain degree is going to result in absolute paralysis. You won’t be able to do anything. But I wanted to get across the point that is essential to recognize: simply pushing a “delete” key is by no means sufficient. You’ve got to address how to make the data irretrievable by ordinary efforts as opposed to extraordinary ones.

Attorney: What do I mean by this? Even if successful, you have the problem with the Nixon tapes. I am truly dating myself.

QUESTION: Somebody knows it’s gone?

Attorney: Somebody knows it’s gone. So by 1974 technology, they were able to address the, what was it, eighteen minutes of silence on the tape?, and figure out that it was four separate erasures. Not uncommonly, when you successfully delete something – erase it, overwrite it, whatever else – it leaves a space. The space may be interpreted. Sometimes it can be interpreted chronologically, so that you know where it had to have been described in time, or when it had to be wiped out.

Attorney: In either event, I just want to get across that being actively involved with these issues is important, but also it’s a business/contact/client relations point. If your business/contact/client thinks that there’s an easy way to make a problem go away . . . I would like to think that every single business contact that I have was sufficiently moral that it would not even be an issue. But would I be wise to rely upon that? I see a lot of people shaking heads out there. If business/client/contact person realizes that not only would improperly attempting to destroy information be illegal, immoral, fattening, impolite, whatever you want to call it, but probably futile and probably the sort of thing that might well result in the sort of 37(b) ugliness that Mr. Adams described in some detail, then it would be a lot more likely that we could persuade them not to do it, or at least to make them aware of the consequences. Does that make sense to everybody? Fair enough.

Attorney: Obsolete . . . obso-delete. Hmm. Given the sort of media that we’re dealing with, the sort of transmissions we’re dealing with, I’m suggesting the terms, “delete,” and “erase” are approaching obsolescence. The term “where” is also taking a pummeling. You get the idea why, right? With respect to the Internet, you can transmit anything, to anywhere, from anywhere. It gets there in almost exactly the same amount of time which is nearly zero. It gets there with almost exactly the same amount of – or the same amount of – distortion, which is zero. And that has some consequences.

Attorney: For example, it is still, as a matter of law, of some consequence where a contact is executed, the physical location where it’s executed. Well, when I taught Contracts I didn’t use this hypo, but I might have. How about somebody who is texting back and forth, or emailing back and forth, from a plane? Or a series of emails going back and forth to a business client you’re trying to contact. He’s on vacation in Barbados this week, Antigua the next, whatever. The idea of something having a physical locus is becoming less and less truly a matter of reality. That has significant effects on not only contracts. The question of personal jurisdiction: to what extent are you making contracts within a forum? Same thing. And also – we’ll get back to this a bit later – the whole issue of choice of law. The choice of law rules are designed based upon the idea of certain things having a locality. That’s changed somewhat. The Second Restatement of Conflict of Laws tried to move away from that, but it’s still a big deal. Again, this is in the nature of background, but I wanted to get across the idea that the media and the transmission means that we use are changing so much that some fairly fundamental ideas that we use in going back and forth with clients are becoming of questionable validity and utility.

Attorney: Why is that? [Referring to visual aid] Moore’s Law. Why on earth am I using 72-point type to talk about Moore’s Law? Well, Moore was a bright guy who came up with an observation in the late sixties that the total number of transistors that you can place within a certain area on a silicon substrate was doubling about every eighteen months. Which translates into either doubling power per unit of cost, essentially, every eighteen months, or price being cut in half for the power being kept the same every eighteen months. I actually think that there’s no inevitability about the eighteen months. I think that just held true long enough that people started basing business expectations upon it. Every time they’d come up against a situation where it seems that, technically, it’s not going to be possible to do that any more, basically enough pressure is brought to bear on the R&D types – “We’ve gotta have it!” — that they find something new. It seems to happen every time.

Attorney: What on earth does that have to do with what we’re talking about here today? I remember back in 1997, I guess, I got a brand-new hard drive to upgrade my computer. I was so excited. It was 200 whole megabytes. Wow! Goodness, I was never going to exhaust that thing! Not strictly applicable here because that’s magnetic storage rather than the sort of storage subject to Moore’s law, which is integrated circuits, but it does provide a useful baseline for this [referencing visual aid: storage on keychain]. This is two gigabytes, and it’s fourteen bucks. The relevant part of it is the size of my thumbnail. So storage is becoming something of a non-issue, which means that keeping documents versus destroying documents, we have in a way some perverse incentives, right? The storage is becoming so reliable, so cheap, so fast, that the destruction of documents that are kept in that medium is something that you’d only do when you have some specific reason to do it, like a document destruction policy. That’s going to be significant in a lot of ways, but let’s go look at some other things.

Attorney: Those chips exist in an awful lot of places. We’re moving away from the drives and going more in the direction of chips. Matter of fact, this little laptop I got the other day – very cheap, very small – runs only on chips. No drives at all. So let’s talk about where chips are. Well, you’ve got laptops with chips and drives. The significance of that? I have some examples of it over there, but in the interest of time I’ll just say: haven’t you heard about ten stories in the past ten years of some NATO lieutenant in Brussels leaving a laptop behind in a taxi that had, basically, the defense plans for the entire Western world? It happens a lot.

Attorney: In fact, when I knew I was going to give this presentation, I just opened up a folder and started throwing in there everything along those lines that went into it. There’s a lot. I chose some highlights, and even they will probably be too much. Let’s see . . . “April 3, 2008: Representative Barton Seeks Probe in Theft of Computer.” We’ve got a computer theft, laptop, three thousand heart patients with medical information potentially exposed to public scrutiny when an unencrypted government laptop was stolen in February from a car of a National Institutes of Health researcher.

Attorney: Okay, happens all the time. Not a problem until you realize that a laptop could contain, let’s say, your entire litigation docket, if that’s where you kept it. Or if you have basically all the relevant information for the functioning of the business of your business contact, and what happens when it goes out the door? Well, again, the issue is [that] so much storage is available; the storage is ubiquitous; it comes about in so many different ways that you’ve got to bear in mind the possibility of its ending up in the wrong hands. Eric [Adams] covered a decent chunk of that.

Attorney: I wanted to get across the idea, though, that it doesn’t have to look like something you would normally watch. You saw my keychain, right? That bright little dangly silver thing on there? Would you think of that as something that’s a hazard to the continued functioning of a business, a law firm, whatever else? Probably not. Probably you wouldn’t think of that with respect to Blackberries with text messages, voicemail, whatever else. How about this innocent looking little thing? An MP-3 player? But it’s got a gigabyte of memory. If it’s hooked to a computer, you can download data into it. What happens if, let’s say, a secretarial employee downloads a bunch of stuff on it, intending to work on it at home; takes it home; does the work; doesn’t erase it; sells it on EBay? As is common, [the employee] leaves the music on there and also, inadvertently, leaves the data on there. What is being sold on EBay for $32.95 is worth how much? In terms of damage to your client? Yourself? Your reputation? Whatever else?

Attorney: Yes, this is one of those instances where I’m saying, “be paranoid.” I don’t know where you take that precisely. As I say, it’s less a program of action than an attitude. Just be aware that anything that has a chip in it can take a whole big chunk of stuff and put it where it ought not be, and that’s dangerous. With respect to that, I will just point out that you are going to have something of a generation gap. It’s going to matter how old your client/contact is. There are some people – my mentor at my original firm, some years older than I am, he was blazingly fast and up-to-date on all computer stuff. That’s not necessarily going to be true of everybody past a certain age. So you will have to bear in mind the need to, perhaps, fill in a bit more background with people who are not as up-to-speed on this sort of thing.

Attorney: Okay, people to watch. I was talking about devices to watch, [now let's talk about] people to watch. Proto-DFEs. Huh? “Disgruntled Former Employees.” Oh, yeah. Mr. Adams already spoke about that. Forbes did a layout on “Employees From Hell.” This was their imagery from that [referring to visual aid]: this little guy who is not a lot of help in the business but can cause a while lot of trouble later on. Again, I’m not suggesting specific courses of action. In particular, this is going to vary enormously with respect to the needs of the business, the nature of the employee, and so forth. But having the sort of policy in place that might prevent this guy from hooking his MP-3 player up . . . or perhaps prevent computerized documents from being able to be locally accessed, locally transmitted, locally copied on his workstation, maybe that would be a good thing.

Attorney: Because I think this might deafen me if I don’t adjust the sound levels, why don’t we stop here for right now? I think I have another 49 seconds. We will begin with the good Sergeant taking this point forward after our break.