Monday, May 14, 2007

MINNESOTA LAWYER Blog: Who's your legal tech geek?

MINNESOTA LAWYER Blog: Who's your legal tech geek? A local legal blog has posted a comment on how both businesses as well as law firms have not reached any kind of consensus on how to address the "intersection of law and technology."

The money quote for those of us who actually do understand that intersection: "Is it time for firms and corporations to develop positions that specialize full-time in legal technology? By assigning that beat on a catch-as-catch-can basis, it seems more likely that new developments in this area could be missed or misunderstood."

Maybe a few of us should visit that blog and post some thoughts, eh?

Wednesday, May 09, 2007

Metadata Disclosure - Alabama Follows New York, Not ABA

The Alabama bar has issued a formal ethics opinion, in which it essentially adopts the New York position on a receiving attorney's use of inadvertently disclosed meta-data received from opposing counsel or party (i.e., Don't Do It).

This is in contrast to some of the recent trends. The ABA recently issued an opinion, Formal Opinion 06-442 (August 5, 2006)
Review and Use of Metadata. The abstract for that opinion states, "The Model Rules of Professional Conduct do not contain any specific prohibition against a lawyer’s reviewing and using embedded information in electronic documents, whether received from opposing counsel, an adverse party, or an agent of an adverse party." (Order a full copy of the opinion here.) This is not a specific endorsement of the use of an opponent's metadata, since it merely says the (new) rules are silent on this point. But, remember that this new opinion withdrew a former opinion that specifically condemned the activity. Remember as well that the new ABA opinion arose from a logical result of the ABA's issuance of its new Model Rules, which had removed the specific rule cited in the withdrawn opinion to justify the old position. (I'm not up to speed on whether Alabama or New York have implemented the new Model Rules.)

Regardless, Alabama and New York both hold that the lawyer who has inadvertently received metadata has a duty to avoid use of the inadvertently disclosed information. Under Alabama's rule, "Absent express authorization from a court, it is ethically impermissible for an attorney to mine metadata from an electronic document he or she inadvertently or improperly receives from another party."

They do note that the SENDING lawyer who sent the inadvertently disclosed metadata has independently violated the duty to maintain a client's confidences. On that point both the ABA and Alabama are in full agreement. So, again, if you have not yet installed good meta-data scrubbers on your own systems, do give consideration to that.

(And, of course, remember that meta-data that is embedded in a document that is itself evidence should not be scrubbed when transmitted to the other side in discovery, since the metadata is part of the evidence and to scrub the evidence would be tantamount to spoliation. This rule only applies to documents that are not themselves evidence.)

Zippo Zinged Without Reazon

I don't know why this keeps happening, but yet another court has misstated the holding of the famous Zippo sliding-scale of interactivity case (Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F Supp 1119 (USDC WDPA 1997). (It isn't entirely clear to me if the confusion arose from the litigants, so I'll reserve my right to re-aim my ire.)

Once again, just so we can get this straight: Zippo is a SPECIFIC JURISDICTION holding. Its author went out of his way to say that the sliding-scale test had no application to GENERAL JURISDICTION.

In Howard v. Missouri Bone and Joint Center, Inc. 2007 ILRWeb (P&F) 1675 [Ill App Ct, 2007], the court went out of its way to reject the Zippo test, saying it had no application to the matter at bar (and that web sites, interactive or not, should be viewed as nothing different than advertising, essentially stating that interactivity is irrelevant to the question of jurisdiction). However, all of the parties were in agreement that the web site in question could only apply for jurisdictional purposes as a matter of GENERAL JURISDICTION. The Zippo rule has no application to claims of general jurisdiction.

There was no need for the court to reject Zippo. It need merely have pointed out to counsel that their cite to Zippo in support of their argument for general jurisdiction was clearly misplaced. Having said that, it does make sense to this author, when doing a general jurisdiction analysis, to view web sites as nothing more than another form of advertising. But, there is plenty to commend the interactivity sliding-scale test when looking for specific jurisdiction -- Jurisdiction arising out of a litigated matter that occurred via that particular interactive web site. (I'm not saying it's necessarily perfect... But, it's certainly better, when used in the right circumstances, than this court seems to allow it.)

Another Judge Questions Admissability of Electronic Evidence

As further evidence that the judiciary is no longer willing to simply trust computers and everything they say to us, yet another court has undertaken to teach us what will be needed to have electronic evidence admitted. And, it looks to me like the skills that our cyberspace lawyers can bring to the table are well suited to that task.

In Lorraine v. Markel Am. Ins. Co. (USDC D. Md., No.06-1893, 5/4/07), Chief Magistrate Judge Paul W. Grimm laid out a near treatise-length standard on how he would analyze what he calls electronically stored information, or "ESI". And, he reserves his primary critiques not on the parties, or on the technologists, but rather on the lawyers seeking to have the ESI admitted.

Although he ended up discussing nearly every type of ESI that might come up as possible evidence in litigation, much of the opinion focused on e-mail. As noted in the opening paragraphs of the exposition:

[U]nauthenticated e-mails are a form of computer generated evidence that pose evidentiary issues that are highlighted by their electronic medium. Given the pervasiveness today of electronically prepared and stored records, as opposed to the manually prepared records of the past, counsel must be prepared to recognize and appropriately deal with the evidentiary issues associated with the admissibility of electronically generated and stored evidence.
Indeed, the inability to get evidence admitted because of a failure to authenticate it almost always is a self inflicted injury which can be avoided by thoughtful advance preparation.

Lawyers -- Just because it came from a computer does not excuse your forgetting the basic rules of evidence.

I could not possibly even begin to summarize the teachings of the opinion in a short blog entry. Go now and download your own copy here.

Lawyers, the days of simply printing out e-mails and hoping to get them into the court are soon to be behind us. And, cyberspace lawyers: Is this yet another opportunity for you to pose your own knowledge in these areas to the benefit of your litigation colleagues?

Friday, May 04, 2007

Dvorak's Stinging Indictment of the Profession

Computer industry columnist John C. Dvorak has just published his take on the DVD decryption key case -- And he zooms his focus right on the lawyers who wrote the demand letters.

Because of the lawyers and the nasty letters, now everyone online knows how important this number must be. Boom! Now users get to work on it.

Heck of a job, lawyers.

Investors should be aware of the overall dangers the legal profession present to companies, and how its current and generalized naiveté can sink fortunes overnight. While I know of no corporation that has been bankrupted by this sort of fiasco, it will happen eventually if lawyers doesn't catch up with the times.

Or perhaps some executives should think for themselves.

Who knew that your law degree could be a weapon of mass destruction?

So, what do you think? Is Dvorak right to suggest that if not for naive but fee-hungry lawyers wielding their C&Ds with impunity that the executives never would have gone down this path? Or, would this have reached a head regardless of whether the legal profession was there to assist it? What alternative paths might have the attorneys taken? How do we factor in the role of Congress, which created the rules that the lawyers operate under?

It's your profession under fire folks. The Comment link is functional.

Wednesday, May 02, 2007

ADA Claims Against Web Site Operator -- Certified Class is Narrowly Defined

One of our recent Hot Topics presentations at the Spring Business Law Section Meeting in D.C. concerned the question of whether, and to what extent, a Web site operator is subject to the rules of the Americans with Disabilities Act. A suit against Target Corporation alleged that its Web site did not meet the ADA's requirements to make it accessible to blind persons, and sought class action status for all blind persons in the USA.

A few months back, the judge had already cut back on the breadth of the suit, saying that there was no ADA protection available where the claims were purely related to the Web site. She did allow that claims which could be construed as how the inaccessible Web site impeded a blind person from accessing a physical retail outlet might go forward.

In her most recent action on April 25, the judge noted that the class that would be certified for this suit would be "All legally blind individuals in the United States who have attempted to access and as a result have been denied access to the enjoyment of goods and services offered in Target stores."

She then followed up with the real kicker -- Apparently the judge was quite concerned that none of the original declarants (the named plaintiffs who represent the class) would be eligible to join the class under this new narrower definition.

Judge Patel allowed that the plaintiffs might still be able to provide declarations to meet the test, or a different named representative, so the suit goes forward with the condition that the plaintiffs' lawyers must come up with at least one named plaintiff who can actually be a part of the class. Nat'l Fed'n of the Blind v. Target Corp., N.D.Cal., No. C 06-01802, 4/25/07)

For the moment, the ADA-specific concerns for Web operators are still rather remote. How site operators might operate in practice is of course a different topic, but for now one better left for those trained in ethics, mores and cost-benefit ratios. (Which is not to say that lawyers should be avoiding those topics in forming their advice.)