Saturday, April 02, 2005

CAIT Subcommittee Meeting

Don Cohn and Michael Fleming chaired the meeting of the Corporate Aspects of Information Technology subcommittee. The group discussed the upcoming projects for the Spam and Unsolicited Electronic Marketing Working Group, and then began solicitations for new projects. At this point, the group is primarily looking for members who are interested in using one of the following ideas as a springboard for a project, and asks that if you would be interested in taking on leadership of any such project that you get in touch with either Don (donald.a.cohn (a) or Michael (michael.f.fleming (a)

  1. Corporate Risk Analysis: Corporate legal practitioners have long experienced difficulty in matching the risk language of the law to the practices of business. Either the language and concepts of the law are viewed as esoteric 'legal issues' instead of important business concerns, or the risks are expressed in seemingly non-quantifiable forms such as "likely." The project would be to create a framework for one or both of those problems--one that would assist the lawyer in talking contract risk with the client in a way the client will appreciate. This project might either lend itself to a CLE presentation down the road, or an article at the magazine level (Business Law Today).

  2. Form Software Developer Agreement: It has been sometime (if ever?) since the Committee has issued a plain vanilla software development form agreement -- one which would have both a license element as well as a professional services element. An annotated agreement, which incorporates up-to-date thinking on some of the issues, and explores the negotiating points, would be helpful to many, particularly if it takes into account the diversity of client bases that this Committee's lawyers represent. Done well, with the right amount of substance, this would lend itself well to a book treatment combined with a CD Rom -- or may ultimately be part of a series of forms that this subcommittee and others in the CLC are working on (such as the form Web developer agreement being worked on by another subcommittee).

  3. Electronic Discovery Monographs: Most of the literature on electronic discovery is written to the litigators -- we feel that there is a lack of material written specifically with the in-house corporate counsel in mind. Rather than dealing with the lawsuit that has already happened, the in-house lawyer is in a better position to practice preventative medicine. Plus, when a problem occurs, the in-house lawyer who is savvy to electronic discovery issues can often provide valuable strategy to the outside lawyer who is less familiar with the company. We envision a series of 3-4 monographs -- 20 pagers or thereabout -- each talking about a particular slice of the e-discovery world. For example, we envision a monograph dedicated to the concept of litigation holds -- the practices that a company must undertake should litigation become likely. Such a monograph should discuss both preparations that might be done well before the problems arise, the costs that will need to be addressed, and how to institute a panic button should it become necessary. Since this project should lead to 3-4 related but different monographs, it lends itself to having a group of 3-4 drafters, each of whom could take an equal role in producing their own monograph, and together they would edit and produce a series of works. This might be publishable as a small book, or could be a candidate for an electronic distribution such as an e-book?

  4. Information Technology Danger Points in Divestitures: While there is no lack of generalized checklists that M&A practitioners might use in their deals, many of those checklists miss some of the IT-specific tricky points and how to resolve them. For example, if a divested subsidiary is the holder of a patent that is being used by the parent, how should the problems be raised, analyzed, negotiated and resolved? This should not be an attempt to re-write those things that have already been written, but rather it should concentrate on those things that are specific to our member's daily practices, distilling some of those things that we have saved our corporate colleagues from tripping on. A magazine article treatment is probably the best initial treatment for this.
Again -- These are ideas that we feel are both related to CAIT's mission of corporate practitioner assistance, and that should be well suited to CLC members looking for a project to start. Please call Don or Michael if you are interested in taking on any of these ideas, or any ideas of your own.

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