Three Es for Family Law Practitioners: E-Discovery ...

Friday, March 14, 20149 a.m.–12:15 p.m.

Oregon State Bar CenterTigard, Oregon

1.75 General CLE or Practical Skills credits and 1.5 Ethics credits

Three Es for Family Law Practitioners: E-Discovery, Electronic Storage, and Ethics

Three Es for Family Law Practitioners: E-Discovery, Electronic Storage, and Ethics ii

THREE ES FOR FAMILY LAW PRACTITIONERS: E-DISCOVERY, ELECTRONIC STORAGE, AND ETHICS

PROGRAM PLANNER

Brittany Ann Berkey, St. Andrew Legal Clinic, Portland

The materials and forms in this manual are published by the Oregon State Bar exclusively for the use of attorneys. Neither the Oregon State Bar nor the contributors make either express or implied warranties in regard to the use of the materials and/or forms. Each attorney must depend on his or her own knowledge of the law and expertise in the use or modification of these materials.

Copyright © 2014

OREGON STATE BAR16037 SW Upper Boones Ferry Road

P.O. Box 231935Tigard, OR 97281-1935

Three Es for Family Law Practitioners: E-Discovery, Electronic Storage, and Ethics iii

TABLE OF CONTENTS

1. Top Ten Family Law E-Discovery Tips . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–i— Thomas P. Howe, Howe & Associates, Lake Oswego, Oregon

2. Head in the Clouds? Managing Ethics Issues in E-Discovery—Presentation Slides . . . . 2–i— David J. Elkanich, Holland & Knight, Portland, Oregon

Three Es for Family Law Practitioners: E-Discovery, Electronic Storage, and Ethics iv

Three Es for Family Law Practitioners: E-Discovery, Electronic Storage, and Ethics v

SCHEDULE

8:30 Registration

9:00 Top 10 Family Law E-Discovery TipsF Preserving and collecting computer and cell phone evidenceF Obtaining social media and online “cloud” dataF Effective search strategies for family law evidenceF Producing electronic data to the requesting partyThomas P. Howe, Howe & Associates, Portland

10:30 Break

10:45 Head in the Cloud? Managing Ethics Issues Associated with E-DiscoveryF Supervising nonlawyers and third-party vendorsF Using (and minimizing) social media evidenceF Preserving data in the cloudF Understanding the new Oregon State Bar Ethics Opinion on MetadataDavid J. Elkanich, Holland & Knight, Portland

12:15 Adjourn

Three Es for Family Law Practitioners: E-Discovery, Electronic Storage, and Ethics vi

Three Es for Family Law Practitioners: E-Discovery, Electronic Storage, and Ethics vii

FACULTY

David J. Elkanich, Holland & Knight, Portland. Mr. Elkanich focuses his practice on litigation involving legal ethics and risk management. He frequently counsels lawyers and other professionals on how to navigate an “electronic” practice, including the rules of engaging in online activity, mining metadata, and utilizing social media. In addition, Mr. Elkanich has a general litigation practice, where he defends large entities and financial institutions such as home loan servicers and other professionals in connection with licensing and litigation matters. Mr. Elkanich is an adjunct professor at Lewis & Clark Law School teaching Regulation and Legal Ethics. Mr. Elkanich is a member of the Multnomah Bar Association, the Oregon State Bar Legal Ethics Committee, the Association of Professional Responsibility Lawyers, and the American Bar Association Center for Professional Responsibility. He is admitted to practice in Oregon, Washington, and Idaho.

Thomas P. Howe, Howe & Associates, Portland. A trial lawyer with a deep technical background, Mr. Howe has over 25 years of experience in law and technology. He has been referred to in articles as one of the leading e-discovery lawyers in the country, providing legal/technology consulting and expert witness services to some of the largest law firms, corporate legal departments, and e-discovery vendors in the United States. Mr. Howe is a regular keynote speaker at legal and technology conferences and continuing legal education events across the United States and Canada and has spoken at over 50 software-programming conferences worldwide. In addition to speaking engagements, he has authored five books on law and technology. Mr. Howe is admitted to practice in Oregon and Washington.

Three Es for Family Law Practitioners: E-Discovery, Electronic Storage, and Ethics viii

Chapter 1

Top Ten Family Law E-Discovery TipsThomas P. howe

Howe & AssociatesLake Oswego, Oregon

Contents

Top Ten E-Discovery Tips . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–11. Family Law Lawyers Must Consider Electronic Evidence . . . . . . . . . . . . . . . . 1–22. In-House E-Discovery—Now Is the Time! . . . . . . . . . . . . . . . . . . . . . . . . . . 1–43. Preserve and Collect Defensively . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–94. Culling Electronic Data for Issues in the Case (Custody, Support, and Property

Division) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–145. Obtaining Social Network and “Cloud” Data . . . . . . . . . . . . . . . . . . . . . . 1–176. Using iPhone and Other Smart Phone Evidence . . . . . . . . . . . . . . . . . . . . . 1–197. Effective Search Strategies for Family Law Evidence . . . . . . . . . . . . . . . . . . 1–288. Effective Document Review in Family Law Cases . . . . . . . . . . . . . . . . . . . . 1–349. Producing Electronic Data to the Requesting Party . . . . . . . . . . . . . . . . . . . 1–4010. Effective Trial Presentation of Electronic Evidence. . . . . . . . . . . . . . . . . . . . 1–41

Presentation Slides . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–43

Chapter 1—Top Ten Family Law E-Discovery Tips

Three Es for Family Law Practitioners: E-Discovery, Electronic Storage, and Ethics 1–ii


Three Es for Family Law Practitioners: E-Discovery, Electronic Storage, and Ethics 1–1Top Ten Family Law E-Discovery Issues 1© Tom Howe - (503) 227-6660 - [email protected]

Top Ten Family Law E-Discovery Tips Oregon State Bar

PresenterTom Howe (503) 227-6660 [email protected] www.HoweLawFirm.com

About Tom Howe • E-Discovery Lawyer • Practicing Lawyer for over 25 years, and is licensed in Oregon and Washington. • Author of 4 books on law and technology. • Speaks at legal conferences throughout North America and technology conferences

around the world.

Today’s Schedule

9:00 – 10:30 Top 10 Family Law E-Discovery Issues

Download Session Materials • Everything you see on these slides is contained in a PDF file and all Word, Excel and

PDF sample documents. You have it all!

Please download a zip file with all the PowerPoint slides and samples for this session. Download Link: http://howelawfirm.com/Events.aspx

Links to Vendors • Web links to vendors, products, and services are provided as examples. • Do your own research to find the best vendors, products, and services to meet the specific

needs of your law firm.

Goals of CLE • Help lawyers understand the importance of e-discovery in family law cases for better

case outcomes. • Develop cost-effective and defensible strategies for dealing with computer and cell

phone.• Identify strategies to incrementally enhance in-house e-discovery capabilities.

CLE Examples • The CLE examples are from actual cases the presenter has been involved in either as an

attorney, e-discovery expert or consultant. • Of course, names and facts have been changed for confidentiality.



Top Ten Family Law E-Discovery Tips

1. FAMILY LAW LAWYERS MUST CONSIDER ELECTRONIC EVIDENCE • Evidence Matter! • Today, evidence is found on computers and cell phones, not paper. • UC Berkeley Study: Paper vs. Digital. 97% of all information is in digital format, and

most of it is never printed out. • Boston Marathon Bomber – the police were not reading papers.

o Videoso Cell Phones o Facebooko Twitter o Text Messages o Emails

Lawyers and Technology • Some lawyers are resistant to learning about new

technology.• You need a basic understanding of technology to

be an effective litigator.



E-Discovery Not Necessary

ORCP 43 – “electronically stored information” • ORCP 43 (updated 1/1/2012) specifically refers to “electronically stored information”

(added FRCP 2006). See ORCP Changes.pdf.

Preventing Malpractice Claims • Like medical malpractice, not doing anything is your greatest risk. • “I won’t do e-discovery if you don’t do e-discovery”. • Did you review emails on the computer? No. • Did you review documents on the computer? No. • Did you look at anything on the computer? No. • Did you review data on the cell phone? No. • Did you review the parties’ Facebook and social networks? No. • #3 Cause of Malpractice: Inadequate Discovery/Investigation.

Proportionality – ORCP 36(C) • ORCP 36(C) permits the court to limit discovery because of "undue burden or expense".

2. BRINGING E-DISCOVERY IN-HOUSE • Current Trend • Easier to Meet Discovery Deadlines • Greater Client Confidentiality • Greater Process Transparency



• Reduce Client Costs • Increase Law Firm Revenue (Profit Center)

Current Trend • Many law firms locally, and across the country, are doing e-discovery in-house! This is a

current trend. • E-Discovery can be a profit center and marketing differentiator for your law firm. • It’s a natural process in business and we have seen it many times before. Law firms have

embraced: o Copy Machines o Desktop Publishing o Scanning

In-House E-Discovery – NOW is the Time!

Easier to Meet Discovery Deadlines • With an organized team and the right systems, it is easier to meet discovery deadlines

with less stress.

Greater Client Confidentiality • Clients trust us with confidential information because we are bound by the rules of

professional conduct. • Yet, we tell clients we will turn over their cell phone and computer data to a third party

vendor.• Big clients fear media exposure. • Individual clients fear loss of privacy.

Greater Process Transparency • Some vendors say: “Our processes are secret and proprietary - but trust me.” • Too many vendors have a “black box”. You have no idea if or how it works.

Reduce Clients Costs • According to ORCP Rule 1, the civil procedure rules should be construed and

administered “to secure the just, speedy, and inexpensive determination of every action”.

Reduce Clients Costs • The vendor costs are stunningly inconsistent. • I have done many “blind RFPs” on behalf of law firms and corporate clients. I have never

seen an RFP where the highest bidder is not more than twice as expensive as the lowest bidder.

• Here is an example from an actual RFP (client information has been removed for confidentiality):

• Example: RFP Vendor Comparison Spreadsheet.xls



RFP Vendor Comparison Spreadsheet

Increases Law Firm Revenue (Profit Center) • Electronic data discovery software sales reached $1.4 billion worldwide in 2012 and will

reach $2.9 billion by 2017, predicts Gartner Inc.

Marketing Differentiator • Family Law firms have developed e-discovery capabilities in-house as a marketing

advantage.

Using E-Discovery Vendors



Incremental E-Discovery • Today, there are tools and technologies available for law firms to do e-discovery in-

house.• Start incrementally and grow capabilities over time to manage risk. • Build e-discovery experience while working on actual cases.

E-Discovery Practice Group (Large Firms) • Create an “E-Discovery Practice Group” at your firm to establish protocols and use as a

marketing differentiator. • Designate an “E-Discovery Counsel”.

Update Pleadings and Forms for E-Discovery • Update Fee Agreement for E-Discovery Services • Start with Client Questionnaires • Requests for Production • Interrogatories • Requests for Admissions • Deposition Questions

Client Intake Questionnaire • Desktop and Laptop Computers (home and work). • Computer Backup Storage Devices (e.g. hard drives). • Online Backup (e.g. Dropbox, iCloud). • Smart Phone, Phones, and Handheld Devices. • Electronic Tables (e.g. iPad, Droid). • Email Accounts. • Voicemail Accounts. • Online Banking and Online Investment Accounts (e.g. institution, account type, amount). • Social Media Accounts (e.g. Facebook, LinkedIn)

Update Requests for Production • Update your Requests for Production if it refers to “document” only.



• Make sure “document” is defined to include “electronically stored information”,including computer files, databases, voice mail, emails, text messages, social networks, online data, and more.

Update Requests for Production • Here is a partial example:

Update Interrogatories Forms • Similar to the deposition examples, update your federal court interrogatories to refer to

electronic data.

Update Deposition Questionnaires • List all computers, electronic devices, phones? • List all online banking and investment accounts? • List all social media accounts? • List all backup devices, intervals and backup copies? • List software used for financial data (e.g. Quicken, QuickBooks, and others)? • Identify any other person who has possession of recorded statements, e-mails, photos,

computer files, video tapes and/or audio tapes concerning any issue in the case.

Requests for Admissions • Enormously powerful as a discovery tool and useful for avoiding surprises at trial

resulting from not having properly laid the foundation for electronic evidence.

Requests for Admissions Purposes • To admit the electronic files are true and complete copies of the original electronic files

that were produced. • To overcome possible authenticity objections the opposing side might raise at trial

regarding your attempts to enter into evidence any digital copies made of original electronic files that opposing counsel produced to you during discovery.

• To overcome hearsay objections.



• To establish relevance of the electronic files.

Requests for Admissions Example REQUEST 1: Admit that the electronic files on the [CD(s)/DVD(s)/hard drive(s)] submitted with these Requests for Admissions are true and complete copies of the original electronic files that were produced by you in the course of discovery in this case. If you deny this request as to one or more electronic files, please identify, along with your specific reasons for denial, the specific corresponding “Document ID” in the spreadsheet for each such file.

RESPONSE:

Update Letters and Emails to Clients • Example: Family law case, advise clients to protect data and change passwords on

accounts.• Advise clients to be careful when posting information on social media during the

pendency of the case. • Send preservation letter/email to the client.

Meet and Confer • The best strategy is to agree with the opposing counsel, either by stipulation or at the

meet and confer: • The locations, computers, devices, data, and file types and custodians to preserve, collect,

and review. • The method of production: native; paper; TIFF; PDF; and/or hosted. • Preparation is the key!

Arguing Discovery Motions • Some judges have limited knowledge of technology and even resist it. When arguing a

motion related to electronic evidence, be more of a teacher than a lawyer.

“Your Honor, allowing us access to relevant and non-privileged information on the other party’s computer is no different than allowing us access to relevant paper documents in their file cabinets.”

Lawyers Must Control the E-Discovery Process! • Do NOT turn e-discovery over to IT. Very few IT people are certified in computer

forensics and experienced with e-discovery.

Lawyers Must Control the Process! • Lawyers have specialties. I have never handled a criminal law case. • IT has specialties just like lawyers (installers, network administrator, database

administrator, system architects). • IT may not be certified in computer forensics, or know e-discovery best practices.



• The role of IT is to keep systems running with minimum risk NOT process e-discovery cases.

• IT will be a valuable resource for computer knowledge and support of e-discovery systems and processes.

• Few IT people are certified in computer forensics.

Cross-Training• Lawyers train paralegals, litigation support staff and IT in the fundamentals of e-

discovery law and procedure (e.g. matter, relevancy, spoliation). • IT trains the lawyers about the fundamentals of technology (e.g. email, backups, servers,

networks, etc).

3. PRESERVE AND COLLECT DEFENSIVELY • First Step – preserve and collect evidence! • Preserve data that is “reasonably anticipated to be relevant to litigation” to prevent

spoliation or destruction of data. • Preserve – act fast and early, including computers, smart phones, devices, and online

data.

Substantial Case Law – Image Home and Work Computers • See Case Law PDF File for cases to review. • Etzion v. Etzion – Image computer hidden assets. • Ranta v. Ranta – Discontinue laptop use and image computer. • Byrne v. Byrne - Wife given access to husband’s computer. • White v. White – Wife given access to husband’s emails and files on family computer. • Schreiber v. Schreiber – Court orders husband’s office computer be forensically

examined. • Rosenberg v. Rosenberg - Wife denied access to the business computer because her claim

of unreported business income was based on conjecture, not hard facts.

Substantial Case Law – Image Home and Work Computers • Estate in re: Maura – Court ordered law firm to turn over hard drive to examine

computer records documents associated with prenuptial agreement. However, the Court ordered respondent to pay the costs of the electronic discovery.

• R.C. v. B.W. – The Court finds that the Husband is not entitled to the computer discovery to contest attorney fees. He purports to prove that his wife’s attorney fees were inflated.

• See Family Law E-Discovery Case Law at: o www.FamilyLawE-Discovery.com



In-House E-Discovery Workflow

Cost of E-Discovery by Phase

Collection

Collection Overview • Collect data in a defensible manner and make sure there is a “chain of custody” for all

computers, devices, and electronic evidence. • If the collection is not done correctly, all other parts of the e-discovery process are under

attack: preservation, culling, processing, reviewing, and producing. Case law has many examples of expensive “do-overs”. An e-discovery mulligan is expensive.

Self-Collection Warnings • Do not let clients collect their own data.



o Fear of deleting data – spoliation. o They do not understand the concept of relevancy. o Better for you to review data (e.g. Facebook page).

• Searching in Outlook is not defensible. o You must collect before reviewing. o The search function in Outlook only searches the email message, not the attachments! o Searching and reviewing emails changes the metadata.

• Most IT people are not trained or certified in computer forensics. • You don’t want your employees on the stand.

Use Outside Independent Experts • Collection is one of the least-expensive part of e-discovery but poses the greatest risk.

Remote Collection – PCs, Macs, and Cell Phones




Remote Collection Unit



Remote Collection Advantages • Clients do not have to be without their computers and cell phones. • Clients pay a flat fee and save money! • Clients do not pay a forensic expert for travel. • Able to collect evidence wherever FedEx-UPS-USPS delivers. • Collection process is defensible. • Collection unit is fully encrypted. • No self-collection so fewer chances of spoliation claim and evidence tampering. • No Law Firm IT involvement or support issues.

Collection Copies • Evidentiary Copy – A pristine copy for later testimony and to prevent spoliation. • Review Copy – For lawyers to review for relevant evidence to support claims and

defenses.

Practice Tip – Collect and Hold • Many firms setup criteria for data collection. • The data is collected and preserved to safeguard the evidence and prevent spoliation

claims. • The evidence is only searched and reviewed if necessary. • Update your fee agreement to include e-discovery collection cost.

Practice Tip: Preview – Early Case Assessment • Do an initial “preview” of the data. Use a “virtual machine”, not original computer.

“Party on the data!”

What if you could Review the Actual Computer? • You could open all files because the programs are installed on the computer, even old

programs. • The programs run on the same operating system as the actual computer. • You can see all desktop items, layout, and configurations of the user. • All metadata is intact. • No risk of spoliation or damaging the computer.

Using a Virtual Machine • With a virtual machine, you can review the actual computer without being on the

computer. • You run an instance of the computer on your computer. • You could open all files because the programs are installed on the computer, even old

programs. • The programs run on the same operating system as the actual computer. • All metadata is intact. • The best way to learn is through a demo.



o See Desktop o Review Favorites o See Programs o See Data

4. CULLING ELECTRONIC DATA FOR ISSUES IN THE CASE (Custody, Support, and Property Division) • This is a critical phase. • Think Gandhi. • Use strategies to limit the scope of e-discovery and find the good stuff quickly.

Data Universe – Computers and Devices

E-Discovery Request Checklist • Example: E-Discovery Request Checklist.pdf.



Cull Computer System and Program Files • deNISTing – remove system and program files from the data collection.

Cull by Parties and Witnesses • Client Questionnaire – Ask the client for names of key witnesses. • Build a list of names from all information collected from computers, cell phones, and

other sources. Ask your client to review the list of names and indicate if they are important, or may testify for the opposing party.

Cull by Date

Importance of Email • Email is one of the most important types of data in litigation. • Over 144.8 billion emails are sent everyday.

Cull Spam

Top 10 Email “From”

Don’t Just Review the Inbox

Document Files

Map Files Types to Legal Issues in Case • Example: Family Law Case

o Custodyo Support (Spousal/Child) o Property Division o Business Valuation

• Family Law E-Discovery Website: o www.FamilyLawE-Discovery.com



Family Law File Types

Over 24,000 File Types • See my spreadsheet in the samples with over 24,000 file types: Computer File Types.xls • See categories: financial, photos, video, and sound.

Cull to Reduce Data Population



5. OBTAINING SOCIAL NETWORK AND “CLOUD” DATA

How to Get Online Data? • As a general rule, in civil cases, you cannot subpoena the third-party provider. • Request the opposing party to produce it because it is within their reasonable control. • Do you need to preserve your client’s Facebook account? • Is there helpful evidence in Facebook, Google+, Instagram, LinkedIn, YouTube, etc? • See Sisson v. Sisson in Case Law PDF - Facebook Custody case. • See Gallion v. Gallion – Swap Facebook accounts and passwords. • See B.M. v. D.M. in Case Law PDF – Wife loses alimony when Husband uses Facebook,

Myspace, and Blog entries and photo to show that ex-wife is not disabled and can work, as she is shown belly dancing.

Example: Facebook Evidence • There is often evidence on a Facebook account a case (e.g. copyright, custody). • See Facebook – Download Account.pdf in the samples. You can send this file to your

client or the opposing party with instructions for how to download Facebook information. • If you need information from the opposing party, request that they download the

Facebook account and send it to you (it is within their reasonable control). • On the top right menu, choose “Account Settings”:

Example: Facebook Evidence • Click “Download a copy of your Facebook data:



Example: Facebook Evidence • Click “Start My Archive”:

Example: Facebook Evidence • You will receive an email when the download is complete:



• Unzip file. • Double-click on “Index.html” to run the Facebook account:

6. USING IPHONE AND OTHER SMART PHONE EVIDENCE • Smart phones (e.g. iPhone, Android, BlackBerry) are targeted for litigation. • People save more and more valuable information on the phone: text messages, email,

calendar, files, photos, videos, and browser history.

Importance of Text Messages

See Arrington v. Arrington in Case Law PDF – Alimony claim. See R.L. v J.L. in Case Law PDF – Custody claim.

Smart Phone Demo • Demo: iPhone PDF Report: Tom Howe iPhone PDF Report • Demo: iPhone Google Earth • Sample iPhone Reports are included in the materials.



iPhone PDF Report - Summary



iPhone PDF Report – Device Information



iPhone PDF Report - Contacts

iPhone PDF Report – Phone Calls



iPhone PDF Report – Text Messages

iPhone PDF Report – Calendar and Internet Bookmarks



iPhone PDF Report – Dictionary and WIFI



iPhone PDF Report - Photos

iPhone PDF Report – Video, Sound Files, and Documents



iPhone PDF Report – Applications and Timeline

iPhone – Google Earth Report




7. EFFECTIVE SEARCH STRATEGIES FOR FAMILY LAW EVIDENCE

Search Keywords



Search Words Based on Issues in Case • Develop a comprehensive list of search terms based on the issues in the case. • The following are a few examples for custody, support, property division, and business

valuation issues. • You can find a more comprehensive list of search terms at: www.FamilyLawE-

Discovery.com.

Child Custody - Family, Relatives, and Witness • Aunts and uncles • Brothers and sisters • Cousins• Ex-Spouses• Grandfathers and grandmothers • Nephews• Nieces • Stepparents• Teachers and tutors • Friends• New relationships of the parents

Child Custody - Expert Witnesses • Accountant, CPA • Actuary• Appraiser• Banker, Insurance Agent, or Financial Planner • Child Therapists • Clinical or Psychiatric Social Workers or Clinical Psychologists • Doctors or Physician Assistants • Mental Health Professionals • Private Investigators or Private Detectives • Psychiatrists or Psychologists or Counselor • School Psychologists, Social Workers, and Therapists • Vocational Counselor or Expert

Child Custody - Significant Quality Time with Children • Search emails, texts, photos, and documents. • Appropriate discipline and parenting skills. • Birthdays, holidays, and vacations. • Calendars of the parties. • Consistent routines and schedules of the children. • Cooperation between parents. • Evidence to establish who is the primary caretaker. • Home day-to-day scheduling.

http://www.familylawe-dsicovery.com

http://www.familylawe-dsicovery.com



• Interference of visitation by the other spouse. • Medical care. • Religious practices, training, and activities. • School activities, school work, sports events, and graduations.

Child Custody - Alcohol or Drug Abuse of Parents • Abuse of anti-anxiety, pain medication or other prescription drugs. • Arrests and criminal records. • Automobile or other accidents. • Discussions or statements about drug or alcohol problems. • Driving records. • Employment problems caused by substance abuse.

Child Custody - Domestic Violence, Abuse and Neglect • Arrests and criminal records. • Discussions or statements about abuse or neglect. • Serious Mental or Emotional Disorders. • Contact or treatment with a mental health professional. • Search online sex offenders databases (e.g. Dru Sjodin National Sex Offender Public

Website at www.nsopw.gov).

Child Support - Income• Alimony payments from previous marriage • Cost-of-living adjustments (COLA) • Disability Income • Employer compensated housing or vehicle • Employer lump-sum payments • Government Pension Statements and Summaries • Monthly Income Reports • Pay check automatic deductions • Stock Dividends • Tax refunds • Unemployment Income • W-2 Records and wage records

Child Support - Expenses• Babysitting and daycare expenses • Birthday and holiday gifts • Cell phones • Clothing• Dental and medical expenses • Education expenses • Food and groceries



• Health insurance • Hobbies• Household supplies • Internet expenses • Laundry and dry cleaning

Child Support – Expenses• Lessons (music, art, sports, language) • Public transportation (bus, train, taxi) • School books, lunches, supplies, and transportation • School uniforms and clothing • Special needs of children with disabilities • Sport expenses (clubs, school trips, uniforms and equipment) • Television cable fees • Utilities (electric, gas, water, garbage) • Vacations• Vehicle costs

Spousal Support• Similar to child support – check income and expenses. • Make sure to review financial software:

o Quickeno QuickBookso Expensro Gnu Cash o Wesabeo Money Trackin o MoneyDanceo AceMoneyo Yodleeo Banzaiway o and other financial software

Property Division • Bank account reports and statements • Business, Partnerships, and sole proprietorships. • Brokerage accounts reports and statements. • Collection (art, silver, stamp, and others) • Financial software (Quicken, QuickBooks, Expensr, Gnu Cash, Wesabe, Money Trackin,

MoneyDance, AceMoney, Yodlee, Banzaiway and other financial software. • Financial statements • Government pension summaries • Inheritances• Life insurance policies



• Net worth statements

Property Division • Property tax statements • Real estate property and appraisals • Refinance loan documents • Rental Property • Retirement plan, pension and account summaries • Royalties • Social Security statements • Spreadsheets related to investments and assets • Tax returns, refunds, and tax planning documents • Tax sheltered and deferred annuities • Trust documents • Wills and Trusts

Hidden Personal Assets • Assets put in the name of another (e.g. family or friend) • Delayed business opportunities until divorce is final • Delayed employment raises, stock options, or bonuses • Exaggerated personal or business debt • Hidden business income • Hidden cash • Hidden or undervaluing assets • Manipulated financial records • Unreported income

Business Valuation• Account payables and receivables • Balance sheets • Business appraisals • Business budgets • Business checking account data • Business continuation coverage • Business expense summaries • Business investment account data • Business leases • Business savings account data • Buy/Sell agreements • Chapter 7, 11 or 13 bankruptcy

Business Valuation • Chart of accounts



• Copyrights, Trademarks, or Patents • Corporate records • Depreciation on equipment • Equipment leasing • Excel spreadsheets • Income statements • Investment asset summaries • Oil and gas leases • Online banking statements • Partnership agreements • Sole proprietorship - 1040 Schedule “C”

Business - Fraudulent or Hidden Data • Delays in signing up new clients • Delays in doing work for clients • Discrepancies between account summaries and business books • Payables inflated to decrease the value the business • Payments (salaries or otherwise) to relatives or friends to lower profits • Purchases of expensive equipment, furnishings, and other assets to increase expenses and

lower profitability • Receivables written off to lower the value of the business • Revenue not deposited in business accounts or entered in the business books

Cross Reference Search List with Hit Count Report • Run the Search List against the actual words that exist on the computer and phone. • Review other names, events, or other important issues on the Hit Count Report.

Predictive Coding • Best for every large data populations (100,000+ documents) • See: Predictive Coding - Pros and Cons.pdf

Predictive Coding Cases • In re Actos (Pioglitazone) Products Liability Litigation, No. 6:11-md-2299, (W.D. La.

July 27, 2012)



• Da Silva Moore v. Publicis Groupe - Opinion and Order • Global Aerospace Inc. v. Landow Aviation, L.P. - Memorandum in Support of Motion fo

Protective Order Approving the Use of Predictive Coding • Federal Circuit Model E-Discovery Order for Patent Litigation (Eastern District of

Texas) - Order and Commentary.pdf

8. EFFECTIVE DOCUMENT REVIEW IN FAMILY LAW CASES • Review is the most expensive part of e-discovery! • Review for relevancy. • Review for privilege. • Review for hot docs. • Review for issues.

Family Law E-Discovery is Different! • Your clients cannot afford an extensive legal review like a commercial litigation case.

You need to use smart strategies to get to the good stuff quickly and cost effectively.

Review Software and Solutions Demo • There are many e-discovery review tools available, some inexpensive and others very

costly. • Review tools fall into two categories:

o Hosted Web Applications o Installed Windows Applications o PDF Reports



Web Application: Relativity

Web Application – Advantages and Disadvantages • Advantages

o Best when many reviewers are needed at multiple office locations. o Only the web browser is needed.

• Disadvantageso Expensive – subscription, per GB fees, and hosting fees. o Learning curve. o Slower than Windows application because of latency.



Windows Application: Simple Review Application

Windows Application • Advantages

o Faster and more responsive review application (than web-based applications). o Less expensive than web applications if you host your own data and purchase the software.

• Disadvantageso Law Firm IT support may be needed. o Not the best choice if you have many reviewers at different locations.



Review PDF Reports • Lawyers love PDFs and printed documents. • Lawyers specify search words and PDF files are

generated for review. • Individual PDF files are created for each search

term or phrase. • Lawyers can use the search feature in Adobe

PDF to find words within the document. • Relevant, Privileged, and Important documents

are summarized in PDF reports. • PDF – Simple and effective.

Review PDF Reports (by Search Term)



Open Native Document or Email Using Hyperlink

Document Coding During PDF Review



Mark Remaining Documents as “Reviewed”

PDF Review Advantages • There is no need to purchase, install, learn, or upgrade new software (no IT necessary). • Easy to review PDF documents for relevancy, privilege, issues, and facts. • Faster to review evidence in PDF reports compared to web or windows applications. • Easy to create trial and deposition exhibits of PDFs documents. • PDF reports can be viewed on iPhone, Android Phones, and iPads. • No need to pay expensive hosting fees for litigation data. • Native documents are organized in folders by group, which makes production easy.

Privilege Log • To claim privilege, a Privilege Log should be provided identifying each item and the

reason for the claim of privilege. • See: Privilege Log.xls



Voicemail• Voicemails can be even more damaging than emails. • Alec Baldwin, during a bitter custody case with Kim

Basinger over the custody of their daughter, Ireland, left a voice message for his 11-year-old daughter calling her a “rude, thoughtless little pig.”

• Voicemail file

9. PRODUCING ELECTRONIC DATA TO THE REQUESTING PARTY • Make sure to produce data in the format agreeable to the opposing party. Stipulate to the

form of production or seek agreement in the meet and confer. • Types of production:

o Papero TIFF / PDF o Native (the standard) o Hosted

Native Format Preserves the Metadata • Metadata is quite simply the characteristics or properties of a file.• Literally, metadata means “data about data.” • Metadata is simply any kind of information describing a set of data.

Why is Metadata Important? • Metadata is extra information saved with a file that is not part of the content of the file. • Let’s say you find an email that is very damaging to the other party. There are several

defenses you may anticipate such as “I did not get the email” or “I did get the email, but I never read it.” The metadata may help you uncover the truth.



Example: Outlook Email Metadata

10. EFFECTIVE TRIAL PRESENTATION OF ELECTRONIC EVIDENCE

Trial Presentation • Remember, you are doing this to win the case! • Do not show this; it is not effective! • Example: Internet Log File. • See Zepeda v. Zepeda in Case Law PDF – Must connect internet usage to the party

(internet usage important to an issue in the case but not tied to the wife).

Resources• Electronic Discovery Inventory and Request Checklist.pdf • Family Law E-Discovery Case Law.pdf • iPhone Report.pdf • Remote Collection of Cell Phones and Computers.pdf • Facebook - Download Account.pdf • Privilege Log.xls • Computer File Types.xls • RFP Vendor Comparison Spreadsheet.pdf • Oregon Rules of Civil Procedure (highlighted updates).pdf



• Sedona Principles - Document Production.pdf • Predictive Coding - Pros and Cons.pdf • Web Copier Software.xls

Take Action – Enhance Your E-Discovery Capabilities • Lawyers must control the e-discovery process and strategies. • Collect and preserve electronic evidence from computers and cell phones. • Cull data to get to the good stuff (by date, people, file types). • Utilize social network and online “cloud” data when needed. • Use PDF reports to find data stored on computers and cell phones. • Produce data to the other side in the agreed or proper format. • Start incrementally handling e-discovery in-house (profit center and a marketing

differentiator). • Most importantly, it is good lawyering!

Thanks for Attending!


Three Es for Family Law Practitioners: E-Discovery, Electronic Storage, and Ethics 1–43

About Tom Howe • E-Discovery Lawyer • Practicing Lawyer for over 25 years, and is licensed in Oregon and

Washington. • Author of 4 books on law and technology. • Speaks at legal conferences throughout North America and

technology conferences around the world.



Today’s Schedule

9:00 – 10:30 Top 10 Family Law E-Discovery Issues

Download Session Materials • Everything you see on these slides is contained in a PDF file and

all Word, Excel and PDF sample documents. You have it all!

Please download a zip file with all the PowerPoint slides and samples for this session. Download Link: http://howelawfirm.com/Events.aspx



Links to Vendors • Web links to vendors, products, and services are provided as

examples.• Do your own research to find the best vendors, products, and

services to meet the specific needs of your law firm.

Goals of CLE • Help lawyers understand the importance of e-discovery in family

law cases for better case outcomes. • Develop cost-effective and defensible strategies for dealing with

computer and cell phone. • Identify strategies to incrementally enhance in-house e-discovery

capabilities.



CLE Examples • The CLE examples are from actual cases the presenter has been

involved in either as an attorney, e-discovery expert or consultant. • Of course, names and facts have been changed for confidentiality.

Top Ten Family Law E-Discovery Tips



1. FAMILY LAW LAWYERS MUST CONSIDER ELECTRONIC EVIDENCE

• Evidence Matter! • Today, evidence is found on computers and cell phones, not paper. • UC Berkeley Study: Paper vs. Digital. 97% of all information is in

digital format, and most of it is never printed out. • Boston Marathon Bomber – the police were not reading papers.

o Videoso Cell Phones o Facebooko Twittero Text Messages o Emails

Lawyers and Technology • Some lawyers are resistant to

learning about new technology. • You need a basic understanding of

technology to be an effective litigator.



E-Discovery Not Necessary

ORCP 43 – “electronically stored information” • ORCP 43 (updated 1/1/2012) specifically refers to “electronically

stored information” (added FRCP 2006). See ORCP Changes.pdf.



Preventing Malpractice Claims • Like medical malpractice, not doing anything is your greatest risk. • “I won’t do e-discovery if you don’t do e-discovery”. • Did you review emails on the computer? No. • Did you review documents on the computer? No. • Did you look at anything on the computer? No. • Did you review data on the cell phone? No. • Did you review the parties’ Facebook and social networks? No. • #3 Cause of Malpractice: Inadequate Discovery/Investigation.

Proportionality – ORCP 36(C) • ORCP 36(C) permits the court to limit discovery because of

"undue burden or expense".



2. BRINGING E-DISCOVERY IN-HOUSE • Current Trend • Easier to Meet Discovery Deadlines • Greater Client Confidentiality • Greater Process Transparency • Reduce Client Costs • Increase Law Firm Revenue (Profit Center)

Current Trend • Many law firms locally, and across the country, are doing e-

discovery in-house! This is a current trend. • E-Discovery can be a profit center and marketing differentiator for

your law firm. • It’s a natural process in business and we have seen it many times

before. Law firms have embraced: o Copy Machines o Desktop Publishing o Scanning



In-House E-Discovery – NOW is the Time!

Easier to Meet Discovery Deadlines • With an organized team and the right systems, it is easier to meet

discovery deadlines with less stress.



Greater Client Confidentiality • Clients trust us with confidential information because we are

bound by the rules of professional conduct. • Yet, we tell clients we will turn over their cell phone and computer

data to a third party vendor. • Big clients fear media exposure. • Individual clients fear loss of privacy.

Greater Process Transparency • Some vendors say: “Our processes are secret and proprietary - but

trust me.”• Too many vendors have a “black box”. You have no idea if or

how it works.



Reduce Clients Costs • According to ORCP Rule 1, the civil procedure rules should be

construed and administered “to secure the just, speedy, and inexpensive determination of every action”.

Reduce Clients Costs • The vendor costs are stunningly inconsistent. • I have done many “blind RFPs” on behalf of law firms and

corporate clients. I have never seen an RFP where the highest bidder is not more than twice as expensive as the lowest bidder.

• Here is an example from an actual RFP (client information has been removed for confidentiality):

• Example: RFP Vendor Comparison Spreadsheet.xls



RFP Vendor Comparison Spreadsheet

Increases Law Firm Revenue (Profit Center) • Electronic data discovery software sales reached $1.4 billion

worldwide in 2012 and will reach $2.9 billion by 2017, predicts Gartner Inc.



Marketing Differentiator • Family Law firms have developed e-discovery capabilities in-

house as a marketing advantage.

Using E-Discovery Vendors



Incremental E-Discovery • Today, there are tools and technologies available for law firms to

do e-discovery in-house. • Start incrementally and grow capabilities over time to manage

risk.• Build e-discovery experience while working on actual cases.

E-Discovery Practice Group (Large Firms) • Create an “E-Discovery Practice Group” at your firm to establish

protocols and use as a marketing differentiator. • Designate an “E-Discovery Counsel”.



Update Pleadings and Forms for E-Discovery • Update Fee Agreement for E-Discovery Services • Start with Client Questionnaires • Requests for Production • Interrogatories• Requests for Admissions • Deposition Questions

Client Intake Questionnaire • Desktop and Laptop Computers (home and work). • Computer Backup Storage Devices (e.g. hard drives). • Online Backup (e.g. Dropbox, iCloud). • Smart Phone, Phones, and Handheld Devices. • Electronic Tables (e.g. iPad, Droid). • Email Accounts. • Voicemail Accounts. • Online Banking and Online Investment Accounts (e.g. institution,

account type, amount). • Social Media Accounts (e.g. Facebook, LinkedIn)



Update Requests for Production • Update your Requests for Production if it refers to “document”

only. • Make sure “document” is defined to include “electronically stored

information”, including computer files, databases, voice mail, emails, text messages, social networks, online data, and more.

Update Requests for Production • Here is a partial example:



Update Interrogatories Forms • Similar to the deposition examples, update your federal court

interrogatories to refer to electronic data.

Update Deposition Questionnaires • List all computers, electronic devices, phones? • List all online banking and investment accounts? • List all social media accounts? • List all backup devices, intervals and backup copies? • List software used for financial data (e.g. Quicken, QuickBooks,

and others)? • Identify any other person who has possession of recorded

statements, e-mails, photos, computer files, video tapes and/or audio tapes concerning any issue in the case.



Requests for Admissions • Enormously powerful as a discovery tool and useful for avoiding

surprises at trial resulting from not having properly laid the foundation for electronic evidence.

Requests for Admissions Purposes • To admit the electronic files are true and complete copies of the

original electronic files that were produced. • To overcome possible authenticity objections the opposing side

might raise at trial regarding your attempts to enter into evidence any digital copies made of original electronic files that opposing counsel produced to you during discovery.

• To overcome hearsay objections. • To establish relevance of the electronic files.



Requests for Admissions Example

REQUEST 1: Admit that the electronic files on the [CD(s)/DVD(s)/hard drive(s)] submitted with these Requests for Admissions are true and complete copies of the original electronic files that were produced by you in the course of discovery in this case. If you deny this request as to one or more electronic files, please identify, along with your specific reasons for denial, the specific corresponding “Document ID” in the spreadsheet for each such file.

RESPONSE:

Update Letters and Emails to Clients • Example: Family law case, advise clients to protect data and

change passwords on accounts. • Advise clients to be careful when posting information on social

media during the pendency of the case. • Send preservation letter/email to the client.



Meet and Confer • The best strategy is to agree with the opposing counsel, either by

stipulation or at the meet and confer: • The locations, computers, devices, data, and file types and

custodians to preserve, collect, and review. • The method of production: native; paper; TIFF; PDF; and/or

hosted.• Preparation is the key!

Arguing Discovery Motions • Some judges have limited knowledge of technology and even

resist it. When arguing a motion related to electronic evidence, be more of a teacher than a lawyer.

“Your Honor, allowing us access to relevant and non-privileged information on the other party’s computer is no different than allowing us access to relevant paper documents in their file cabinets.”



Lawyers Must Control the E-Discovery Process! • Do NOT turn e-discovery over to IT. Very few IT people are

certified in computer forensics and experienced with e-discovery.

Lawyers Must Control the Process! • Lawyers have specialties. I have never handled a criminal law

case.• IT has specialties just like lawyers (installers, network

administrator, database administrator, system architects). • IT may not be certified in computer forensics, or know e-

discovery best practices. • The role of IT is to keep systems running with minimum risk NOT

process e-discovery cases. • IT will be a valuable resource for computer knowledge and

support of e-discovery systems and processes. • Few IT people are certified in computer forensics.



Cross-Training • Lawyers train paralegals, litigation support staff and IT in the

fundamentals of e-discovery law and procedure (e.g. matter, relevancy, spoliation).

• IT trains the lawyers about the fundamentals of technology (e.g. email, backups, servers, networks, etc).

3. PRESERVE AND COLLECT DEFENSIVELY • First Step – preserve and collect evidence! • Preserve data that is “reasonably anticipated to be relevant to

litigation” to prevent spoliation or destruction of data. • Preserve – act fast and early, including computers, smart phones,

devices, and online data.



Substantial Case Law – Image Home and Work Computers • See Case Law PDF File for cases to review. • Etzion v. Etzion – Image computer hidden assets. • Ranta v. Ranta – Discontinue laptop use and image computer. • Byrne v. Byrne - Wife given access to husband’s computer. • White v. White – Wife given access to husband’s emails and files

on family computer. • Schreiber v. Schreiber – Court orders husband’s office computer

be forensically examined. • Rosenberg v. Rosenberg - Wife denied access to the business

computer because her claim of unreported business income was based on conjecture, not hard facts.

Substantial Case Law – Image Home and Work Computers • Estate in re: Maura – Court ordered law firm to turn over hard

drive to examine computer records documents associated with prenuptial agreement. However, the Court ordered respondent to pay the costs of the electronic discovery.

• R.C. v. B.W. – The Court finds that the Husband is not entitled to the computer discovery to contest attorney fees. He purports to prove that his wife’s attorney fees were inflated.

• See Family Law E-Discovery Case Law at:o www.FamilyLawE-Discovery.com



In-House E-Discovery Workflow

Cost of E-Discovery by Phase



Collection

Collection Overview • Collect data in a defensible manner and make sure there is a

“chain of custody” for all computers, devices, and electronic evidence.

• If the collection is not done correctly, all other parts of the e-discovery process are under attack: preservation, culling, processing, reviewing, and producing. Case law has many examples of expensive “do-overs”. An e-discovery mulligan is expensive.



Self-Collection Warnings • Do not let clients collect their own data.

o Fear of deleting data – spoliation. o They do not understand the concept of relevancy. o Better for you to review data (e.g. Facebook page).

• Searching in Outlook is not defensible. o You must collect before reviewing. o The search function in Outlook only searches the email message, not the attachments! o Searching and reviewing emails changes the metadata.

• Most IT people are not trained or certified in computer forensics. • You don’t want your employees on the stand.

Use Outside Independent Experts • Collection is one of the least-expensive part of e-discovery but

poses the greatest risk.



Remote Collection Unit




Remote Collection Advantages • Clients do not have to be without their computers and cell phones. • Clients pay a flat fee and save money! • Clients do not pay a forensic expert for travel. • Able to collect evidence wherever FedEx-UPS-USPS delivers. • Collection process is defensible. • Collection unit is fully encrypted. • No self-collection so fewer chances of spoliation claim and

evidence tampering. • No Law Firm IT involvement or support issues.

Collection Copies • Evidentiary Copy – A pristine copy for later testimony and to

prevent spoliation. • Review Copy – For lawyers to review for relevant evidence to

support claims and defenses.



Practice Tip – Collect and Hold • Many firms setup criteria for data collection. • The data is collected and preserved to safeguard the evidence and

prevent spoliation claims.• The evidence is only searched and reviewed if necessary. • Update your fee agreement to include e-discovery collection cost.

Practice Tip: Preview – Early Case Assessment • Do an initial “preview” of the data. Use a “virtual machine”, not

original computer. “Party on the data!”



What if you could Review the Actual Computer? • You could open all files because the programs are installed on the

computer, even old programs. • The programs run on the same operating system as the actual

computer.• You can see all desktop items, layout, and configurations of the

user.• All metadata is intact. • No risk of spoliation or damaging the computer.

Virtual Machine Demo



Using a Virtual Machine • With a virtual machine, you can review the actual computer

without being on the computer. • You run an instance of the computer on your computer. • You could open all files because the programs are installed on the

computer, even old programs. • The programs run on the same operating system as the actual

computer.• All metadata is intact. • The best way to learn is through a demo.

o See Desktop o Review Favorites o See Programs o See Data

4. CULLING ELECTRONIC DATA FOR ISSUES IN THE CASE (Custody, Support, and Property Division)

• This is a critical phase. • Think Gandhi. • Use strategies to limit the scope of e-discovery and find the good

stuff quickly.



Data Universe – Computers and Devices

E-Discovery Request Checklist • Example: E-Discovery Request Checklist.pdf.



Cull Computer System and Program Files • deNISTing – remove system and program files from the data

collection.

Cull by Parties and Witnesses • Client Questionnaire – Ask the client for names of key witnesses. • Build a list of names from all information collected from

computers, cell phones, and other sources. Ask your client to review the list of names and indicate if they are important, or may testify for the opposing party.



Cull by Date

Importance of Email • Email is one of the most important types of data in litigation. • Over 144.8 billion emails are sent everyday.



Cull Spam

Top 10 Email “From”



Don’t Just Review the Inbox

Document Files



Map Files Types to Legal Issues in Case • Example: Family Law Case

o Custodyo Support (Spousal/Child) o Property Division o Business Valuation

• Family Law E-Discovery Website: o www.FamilyLawE-Discovery.com

Family Law File Types



Over 24,000 File Types • See my spreadsheet in the samples with over 24,000 file types:

Computer File Types.xls • See categories: financial, photos, video, and sound.

Cull to Reduce Data Population



5. OBTAINING SOCIAL NETWORK AND “CLOUD” DATA

How to Get Online Data? • As a general rule, in civil cases, you cannot subpoena the third-

party provider. • Request the opposing party to produce it because it is within their

reasonable control. • Do you need to preserve your client’s Facebook account? • Is there helpful evidence in Facebook, Google+, Instagram,

LinkedIn, YouTube, etc? • See Sisson v. Sisson in Case Law PDF - Facebook Custody case. • See Gallion v. Gallion – Swap Facebook accounts and passwords. • See B.M. v. D.M. in Case Law PDF – Wife loses alimony when

Husband uses Facebook, Myspace, and Blog entries and photo to show that ex-wife is not disabled and can work, as she is shown belly dancing.



Example: Facebook Evidence • There is often evidence on a Facebook account a case (e.g.

copyright, custody). • See Facebook – Download Account.pdf in the samples. You can

send this file to your client or the opposing party with instructions for how to download Facebook information.

• If you need information from the opposing party, request that they download the Facebook account and send it to you (it is within their reasonable control).

• On the top right menu, choose “Account Settings”:

Example: Facebook Evidence • Click “Download a copy of your Facebook data:



Example: Facebook Evidence • Click “Start My Archive”:

Example: Facebook Evidence • You will receive an email when the download is complete:

• Unzip file. • Double-click on “Index.html” to run the Facebook account:



6. USING IPHONE AND OTHER SMART PHONE EVIDENCE • Smart phones (e.g. iPhone, Android, BlackBerry) are targeted for

litigation.• People save more and more valuable information on the phone:

text messages, email, calendar, files, photos, videos, and browser history.

Importance of Text Messages

See Arrington v. Arrington in Case Law PDF – Alimony claim. See R.L. v J.L. in Case Law PDF – Custody claim.



Smart Phone Demo • Demo: iPhone PDF Report: Tom Howe iPhone PDF Report • Demo: iPhone Google Earth • Sample iPhone Reports are included in the materials.

iPhone PDF Report - Summary



iPhone PDF Report – Device Information

iPhone PDF Report - Contacts



iPhone PDF Report – Phone Calls

iPhone PDF Report – Text Messages



iPhone PDF Report – Calendar and Internet Bookmarks

iPhone PDF Report – Dictionary and WIFI



iPhone PDF Report - Photos

iPhone PDF Report – Video, Sound Files, and Documents



iPhone PDF Report – Applications and Timeline




7. EFFECTIVE SEARCH STRATEGIES FOR FAMILY LAW EVIDENCE

Search Keywords



Search Words Based on Issues in Case • Develop a comprehensive list of search terms based on the issues

in the case. • The following are a few examples for custody, support, property

division, and business valuation issues. • You can find a more comprehensive list of search terms at:

www.FamilyLawE-Discovery.com.

Child Custody - Family, Relatives, and Witness • Aunts and uncles • Brothers and sisters • Cousins• Ex-Spouses• Grandfathers and grandmothers • Nephews• Nieces• Stepparents• Teachers and tutors • Friends• New relationships of the parents



Child Custody - Expert Witnesses • Accountant, CPA • Actuary• Appraiser• Banker, Insurance Agent, or Financial Planner • Child Therapists • Clinical or Psychiatric Social Workers or Clinical Psychologists • Doctors or Physician Assistants • Mental Health Professionals • Private Investigators or Private Detectives • Psychiatrists or Psychologists or Counselor • School Psychologists, Social Workers, and Therapists • Vocational Counselor or Expert

Child Custody - Significant Quality Time with Children • Search emails, texts, photos, and documents. • Appropriate discipline and parenting skills. • Birthdays, holidays, and vacations. • Calendars of the parties. • Consistent routines and schedules of the children. • Cooperation between parents. • Evidence to establish who is the primary caretaker. • Home day-to-day scheduling. • Interference of visitation by the other spouse. • Medical care. • Religious practices, training, and activities. • School activities, school work, sports events, and graduations.



Child Custody - Alcohol or Drug Abuse of Parents • Abuse of anti-anxiety, pain medication or other prescription drugs. • Arrests and criminal records. • Automobile or other accidents. • Discussions or statements about drug or alcohol problems. • Driving records. • Employment problems caused by substance abuse.

Child Custody - Domestic Violence, Abuse and Neglect • Arrests and criminal records. • Discussions or statements about abuse or neglect. • Serious Mental or Emotional Disorders. • Contact or treatment with a mental health professional. • Search online sex offenders databases (e.g. Dru Sjodin National

Sex Offender Public Website at www.nsopw.gov).



Child Support - Income • Alimony payments from previous marriage • Cost-of-living adjustments (COLA) • Disability Income • Employer compensated housing or vehicle • Employer lump-sum payments • Government Pension Statements and Summaries • Monthly Income Reports • Pay check automatic deductions • Stock Dividends • Tax refunds • Unemployment Income • W-2 Records and wage records

Child Support - Expenses • Babysitting and daycare expenses • Birthday and holiday gifts • Cell phones • Clothing• Dental and medical expenses • Education expenses • Food and groceries • Health insurance • Hobbies• Household supplies • Internet expenses • Laundry and dry cleaning



Child Support – Expenses • Lessons (music, art, sports, language) • Public transportation (bus, train, taxi) • School books, lunches, supplies, and transportation • School uniforms and clothing • Special needs of children with disabilities • Sport expenses (clubs, school trips, uniforms and equipment) • Television cable fees • Utilities (electric, gas, water, garbage) • Vacations• Vehicle costs

Spousal Support • Similar to child support – check income and expenses. • Make sure to review financial software:

o Quickeno QuickBookso Expensro Gnu Cash o Wesabeo Money Trackin o MoneyDanceo AceMoneyo Yodleeo Banzaiwayo and other financial software



Property Division • Bank account reports and statements • Business, Partnerships, and sole proprietorships. • Brokerage accounts reports and statements. • Collection (art, silver, stamp, and others) • Financial software (Quicken, QuickBooks, Expensr, Gnu Cash,

Wesabe, Money Trackin, MoneyDance, AceMoney, Yodlee, Banzaiway and other financial software.

• Financial statements • Government pension summaries • Inheritances• Life insurance policies • Net worth statements

Property Division • Property tax statements • Real estate property and appraisals • Refinance loan documents • Rental Property • Retirement plan, pension and account summaries • Royalties• Social Security statements • Spreadsheets related to investments and assets • Tax returns, refunds, and tax planning documents • Tax sheltered and deferred annuities • Trust documents • Wills and Trusts



Hidden Personal Assets • Assets put in the name of another (e.g. family or friend) • Delayed business opportunities until divorce is final • Delayed employment raises, stock options, or bonuses • Exaggerated personal or business debt • Hidden business income • Hidden cash • Hidden or undervaluing assets • Manipulated financial records • Unreported income

Business Valuation • Account payables and receivables • Balance sheets • Business appraisals • Business budgets • Business checking account data • Business continuation coverage • Business expense summaries • Business investment account data • Business leases • Business savings account data • Buy/Sell agreements • Chapter 7, 11 or 13 bankruptcy



Business Valuation • Chart of accounts • Copyrights, Trademarks, or Patents • Corporate records • Depreciation on equipment • Equipment leasing • Excel spreadsheets • Income statements • Investment asset summaries • Oil and gas leases • Online banking statements • Partnership agreements • Sole proprietorship - 1040 Schedule “C”

Business - Fraudulent or Hidden Data • Delays in signing up new clients • Delays in doing work for clients • Discrepancies between account summaries and business books • Payables inflated to decrease the value the business • Payments (salaries or otherwise) to relatives or friends to lower

profits• Purchases of expensive equipment, furnishings, and other assets to

increase expenses and lower profitability • Receivables written off to lower the value of the business • Revenue not deposited in business accounts or entered in the

business books



Cross Reference Search List with Hit Count Report • Run the Search List against the actual words that exist on the

computer and phone. • Review other names, events, or other important issues on the Hit

Count Report.

Predictive Coding • Best for every large data populations (100,000+ documents) • See: Predictive Coding - Pros and Cons.pdf



Predictive Coding Cases • In re Actos (Pioglitazone) Products Liability Litigation, No. 6:11-

md-2299, (W.D. La. July 27, 2012) • Da Silva Moore v. Publicis Groupe - Opinion and Order • Global Aerospace Inc. v. Landow Aviation, L.P. - Memorandum

in Support of Motion fo Protective Order Approving the Use of Predictive Coding

• Federal Circuit Model E-Discovery Order for Patent Litigation (Eastern District of Texas) - Order and Commentary.pdf

8. EFFECTIVE DOCUMENT REVIEW IN FAMILY LAW CASES

• Review is the most expensive part of e-discovery! • Review for relevancy. • Review for privilege. • Review for hot docs. • Review for issues.



Family Law E-Discovery is Different! • Your clients cannot afford an extensive legal review like a

commercial litigation case. You need to use smart strategies to get to the good stuff quickly and cost effectively.

Review Software and Solutions Demo • There are many e-discovery review tools available, some

inexpensive and others very costly. • Review tools fall into two categories:

o Hosted Web Applications o Installed Windows Applications o PDF Reports



Web Application: Relativity

Web Application – Advantages and Disadvantages • Advantages

o Best when many reviewers are needed at multiple office locations.o Only the web browser is needed.

• Disadvantageso Expensive – subscription, per GB fees, and hosting fees. o Learning curve. o Slower than Windows application because of latency.



Windows Application: Simple Review Application

Windows Application • Advantages

o Faster and more responsive review application (than web-based applications). o Less expensive than web applications if you host your own data and purchase the software.

• Disadvantageso Law Firm IT support may be needed. o Not the best choice if you have many reviewers at different locations.



Review PDF Reports • Lawyers love PDFs and printed

documents. • Lawyers specify search words and PDF

files are generated for review. • Individual PDF files are created for

each search term or phrase. • Lawyers can use the search feature in

Adobe PDF to find words within the document.

• Relevant, Privileged, and Important documents are summarized in PDF reports.

• PDF – Simple and effective.

Review PDF Reports (by Search Term)



Open Native Document or Email Using Hyperlink

Document Coding During PDF Review



Mark Remaining Documents as “Reviewed”

PDF Review Advantages • There is no need to purchase, install, learn, or upgrade new

software (no IT necessary). • Easy to review PDF documents for relevancy, privilege, issues,

and facts. • Faster to review evidence in PDF reports compared to web or

windows applications. • Easy to create trial and deposition exhibits of PDFs documents. • PDF reports can be viewed on iPhone, Android Phones, and iPads. • No need to pay expensive hosting fees for litigation data. • Native documents are organized in folders by group, which makes

production easy.



Privilege Log • To claim privilege, a Privilege Log should be provided identifying

each item and the reason for the claim of privilege. • See: Privilege Log.xls

Voicemail • Voicemails can be even more damaging than

emails.• Alec Baldwin, during a bitter custody case

with Kim Basinger over the custody of their daughter, Ireland, left a voice message for his 11-year-old daughter calling her a “rude, thoughtless little pig.”

• Voicemail file



9. PRODUCING ELECTRONIC DATA TO THE REQUESTING PARTY

• Make sure to produce data in the format agreeable to the opposing party. Stipulate to the form of production or seek agreement in the meet and confer.

• Types of production: o Papero TIFF / PDF o Native (the standard) o Hosted

Native Format Preserves the Metadata • Metadata is quite simply the characteristics or properties of a file.• Literally, metadata means “data about data.” • Metadata is simply any kind of information describing a set of

data.



Why is Metadata Important? • Metadata is extra information saved with a file that is not part of

the content of the file. • Let’s say you find an email that is very damaging to the other

party. There are several defenses you may anticipate such as “I did not get the email” or “I did get the email, but I never read it.” The metadata may help you uncover the truth.

Example: Outlook Email Metadata



10. EFFECTIVE TRIAL PRESENTATION OF ELECTRONIC EVIDENCE

Trial Presentation • Remember, you are doing this to win the case!



Example: Internet Log File • Do not show this; it is not effective!

Example: Internet Log File • Be Visual!



Example: Internet Log File • Use SnagIt for screenshots – www.techsmith.com/snagit.html

• See Zepeda v. Zepeda in Case Law PDF – Must connect internet usage to the party (internet usage important to an issue in the case but not tied to the wife).

Resources



Resources• Electronic Discovery Inventory and Request Checklist.pdf • Family Law E-Discovery Case Law.pdf • iPhone Report.pdf • Remote Collection of Cell Phones and Computers.pdf • Facebook - Download Account.pdf • Privilege Log.xls • Computer File Types.xls • RFP Vendor Comparison Spreadsheet.pdf • Oregon Rules of Civil Procedure (highlighted updates).pdf • Sedona Principles - Document Production.pdf • Predictive Coding - Pros and Cons.pdf • Web Copier Software.xls

Take Action



Take Action – Enhance Your E-Discovery Capabilities • Lawyers must control the e-discovery process and strategies. • Collect and preserve electronic evidence from computers and cell

phones.• Cull data to get to the good stuff (by date, people, file types). • Utilize social network and online “cloud” data when needed. • Use PDF reports to find data stored on computers and cell phones. • Produce data to the other side in the agreed or proper format. • Start incrementally handling e-discovery in-house (profit center

and a marketing differentiator). • Most importantly, it is good lawyering!

Thanks for Attending!

Chapter 2

Head in the Clouds? Managing Ethics Issues in E-Discovery—Presentation Slides

DaviD J. elkanich

Holland & KnightPortland, Oregon

Chapter 2—Head in the Clouds? Managing Ethics Issues in E-Discovery—Presentation Slides

Three Es for Family Law Practitioners: E-Discovery, Electronic Storage, and Ethics 2–ii



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H d i th Cl d ?Head in the Clouds? Managing Ethics Issues in E-Discovery

Oregon State BarTigard, OregonMarch 14, 2014

Copyright © 2014 Holland & Knight LLP. All Rights Reserved

David J. Elkanich(503) 517-2928

[email protected]: @DavidElkanich

Today’s DiscussionE-Discovery – Overview and Why it is so Important

Obligations in E-DiscoveryObligations in E-DiscoveryPreserving Data in the CloudUsing (and Minimizing) Social Media EvidenceUnderstanding New OSB Ethics Op on MetadataSupervising Non-Lawyer and Third-Party Vendors

Questions!

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How E-Discovery Issues Typically Arise?

Motions to Compel and Motions for Sanctions

Pricewaterhousecoopers LLP – Penalty for delaying and resisting discovery orders = $345m

J.P. Morgan Securities, Inc. – Penalty for losing e-mails demanded by government regulators = $2.1m

Morgan Stanley – Penalty for bungling e-discovery collection = adverse inference of guilt and default gjudgment + $1.45b

UBS Warburg - Penalty for deletion of e-mails despite a court order to preserve = adverse inference instruction + $29.3m

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Primary Sources of Risk

TECHNOLOGY LEGAL RULES ETHICS RULES PROFESSIONALISM

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Primary Ethics Rules at Issue

Rule 1.1 – Competence Rule 1.3 – Diligence Rule 1 4 CommunicationRule 1.4 – CommunicationRule 1.6 – Confidentiality Rule 3.2 – Expediting Litigation Rule 3.3 – Candor Toward the Tribunal Rule 3.4 – Fairness to Opposing Party and Counsel Rule 4.2 – Communications with Represented PartiesRule 4.3 – Communications with Unrepresented PartiesRule 4.4 – Respect for the Rights of Third PartiesRule 4.4 Respect for the Rights of Third PartiesRule 5.1 – Responsibilities of Partners, Managers and Supervisory LawyersRule 5.3 – Responsibilities Regarding Nonlawyer MisconductRule 8.4 – Conduct Involving Dishonest, Deceit, Fraud, Misrepresentation

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Break the Rules Down:

Client Lawyer

• 1.1• 1.3• 1.4• 1.6

Advocate• 3.2• 3.3• 3.4

Dealing with

Others

• 4.2• 4.3• 4 4Others 4.4• 8.4

Supervision• 5.1• 5.3

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Client- Lawyer Relationship

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CompetenceRPC 1.1: A lawyer shall provide competent representation

to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

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Competent in E-Discovery?Know the technologyHave basic knowledge OR hire great IT support

Know the applicable procedural rules

The Basics: preserve, collect and produce ESIIssue litigation hold directives and follow-upDevelop defensible E-Discovery collection andDevelop defensible E Discovery collection and

production practices = specially tailor protocolsMonitor client compliance (See FRPC 37(e))Deal with Metadata (let’s discuss later)

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Yes, You Must Be CompetentIgnorance of E-Discovery

is expensiveClients at strategic

disadvantageLeads to mistakes,

costly, delaysSanctions and other

consequences AND

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q

Yes, the other person is doing it



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Maintaining Competence ABA Cmt [8]: Lawyer must “maintain” competence by keeping abreast of changes in the law and its practice including the benefits and riskslaw and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education.

Standard of care issues in the digital worldOppositional researchOppositional researchPrivacy settingsApplicable law (Stored Communications Act,

etc…)11

Act DiligentlyRPC 1.3: A lawyer shall not neglect a legal matter

entrusted to the lawyer.

You need to act timelyDon’t delay or procrastinateTimely issue your litigation holdPrepare for a meaningful discussion at Rule 16 Conf.Timely seek ESI from other side

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Litigant has a duty to preserveLitigant has a duty to preserve evidence "it knows or reasonably should know is relevant" to the litigation "[a]s soon as a potential claim is identified"claim is identifiedIn re Napster, Inc. Copyright Litigation, 462 F. Supp. 2d 1060, 1067 (N.D. Cal. 2006)

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Duty of ConfidentialityOregon RPC 1.6(a): lawyer shall not reveal information

relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

NEW RULE: RPC 1.6(c): A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information , ,relating to the representation of a client.

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But What Are Reasonable Efforts?It depends ... Cmt [18]: Lawyers should consider:[ ] ythe sensitivity of the information, the likelihood of disclosure if additional safeguards are

not employed;the cost of employing additional safeguards;the difficulty of implementing the safeguards; and the extent to which the safeguards adversely affect the

lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use).

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Communicate with ClientRPC 1.4(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information

RPC 1.4(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Talk to your clients How do they want to proceed?Talk to your clients. How do they want to proceed?What do they want to pay for?How adversarial do they want to be?

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In Practice: Cloud ComputingDeliver, store and manage data offsite

Considerations:Considerations:Where is your data and is it protected?Who owns and has access?Long-term plan for retention of documents?

OSB Ethics Op. 2011-188: Take r/s steps to ensure theOSB Ethics Op. 2011 188: Take r/s steps to ensure the storage company will reliably secure client data and keep information confidential.Industry standards?Reevaluate protective measures as technology changes

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Acting as Advocate

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Act Expediently, If Reasonable…RPC 3.2: A lawyer shall make reasonable efforts to

expedite litigation.

RPC 3.4: A lawyer shall not:(a) knowingly and unlawfully obstruct another party's

access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such actanother person to do any such act

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Don’t Spoliate. Don’t Spoliate. Don’t…

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Don’t Make Frivolous RequestsRPC 3.4: A lawyer shall not:(d) in pretrial procedure, knowingly make a frivolous discovery request or fail to make reasonably diligent effortdiscovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party.

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Dealing with Others

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Don’t Embarrass, Delay or HarassRPC 4.4(a): In representing a client or the lawyer’s own

interests, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, harass or burden a third person, or knowingly use methods of obtaining evidence that violate the legal rights of such a person

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Inadvertent Production in DiscoveryConsider clawback agreement or protective order

Danger in e-discovery context – sheer volume of ESI andDanger in e discovery context sheer volume of ESI and short window of time to produce to the opposing party

Technology improving –keyword (person, date, event) searches to reduce the set of potentially relevant ESI that needs a live human to review prior to productionT h l t l l k t d th t f ESI diTechnology tools – look to reduce the set of ESI needing

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Inadvertent Disclosure . . . Oregon RPC 4.4(b):

A lawyer who receives a document or electronicallyA lawyer who receives a document or electronically stored information relating to the representation of the lawyer's client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender.

The “almost” new rule changeThe almost new rule change . . .



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Federal Rule of Evidence 502Addresses waivers by disclosure of attorney-client and

work-product protections. No wavier if:Disclosure inadvertentSender took reasonable steps to prevent disclosurePromptly took reasonable steps to fix once discovered

Applies in subsequent court proceedings

Limited subject matter waiver only

No similar rule in Oregon state court; yes in Washington

MetadataWhat is it?

Data about dataInformation embedded in electronic documentsInformation within software programs which is not readily

visible but which is accessibleData identifying the document’s origin, destination, edit

history, deleted text, author, etc…

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Two Sides of Metadata

EvidenceESI – Produce In Practice

Metadata - Mining

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Are We Making Too Big A Deal About ESI?



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ESI and the Federal RulesShould disclose information about e-information in initial

disclosures (FRCP 26(a)(1)(B))Need not initially produce e-data not reasonablyNeed not initially produce e-data not reasonably

accessible due to burden or cost (FRCP 26(b)(2)(B))

Discuss any issues relating to preservation of ESI (FRCP 26(f))

Address issues relating to claims of privilege or work d t t ti d d i f ti (FRCP 26(f))product protection on produced information (FRCP 26(f))

Metadata

In Practice: Mining for Electronic Information / DiscoveryInformation / Discovery



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New Ethics Opinion No. 2011-187Protect Client information. RPC 1.6(a) (c)Provide Competent Representation. RPC 1.1S “ ”Sender should take “reasonable care”Examples:Updates/patchesScrubbersNon-malleable documentsProtective orderAnd…

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New Ethics Opinion No. 2011-187Receiving Lawyer Obligations:“Given the sending lawyer’s duty to exercise reasonable

care in regards to metadata, the receiving lawyer couldcare in regards to metadata, the receiving lawyer could reasonably conclude that the metadata was intentionally left in. In that situation, there is no duty under Oregon RPC 4.4(b) to notify the sender of the presence of metadata.”But “no” if you may reasonably conclude metadata

inadvertently sent (e.g., yellow tabs v. redline)y ( g , y )

And “no” to special tools/software

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Other Sources of E-Discovery / InfoFacebook: 1.26B users350M photos uploaded; 10B messages sent daily

Twitter: Almost 646M users9,100 tweets a second; 500M avg tweets a day

YouTube: 1B unique visitors per month100 hours uploaded video a minute100 hours uploaded video a minute

Instagram: 150M monthly active users55M photos per day

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New Ethics Opinion: Will You Be My Friend?Lawyer wishes to investigate an opposing party, a witness,

or a juror by accessing the person’s social networking website. While viewing the publicly available information on the website, Lawyer learns that there is additional information that the person has kept from public view through privacy settings and that is available by submitting a request through the person’s website.

Questions:QReview publicly available info?Request access to non-public info?Use non-identifying username or alias?

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OSB Ethics Op. No. 2013-187Review publicly available info? Yes.Oregon RPC 4.2 inapplicable to public information

Request access to non-public info?If represented, then no under RPC 4.2If not represented, yes but be mindful of RPC 4.3

Use non-identifying username or aliasUse non identifying username or alias No, qualified. RPC 8.4(a)(3)

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What About Deleting Social Media?Lester v. Allied Concrete Co.Discovery request for FBP Lawyer advised client toP Lawyer advised client to

“clean up” the FB page because “we do NOT want blow ups of other pics at trial so please, please clean up your facebook and myspace.” She also y padvised there were “other pics that should be deleted.”Deactivated Account

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Deleting Social MediaWhat happened?

542k Sanction in Attorneys Fees against Lawyer542k Sanction in Attorneys Fees against LawyerAND…… 5 year suspension by Virginia State Bar

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But What Can You Advise?New York 745 (2013), Lawyer may advise clients:What they should/shouldn’t post on social mediaWhat existing posting they may or may not removeWhat existing posting they may or may not removeParticular implications of social media posts as it may be

used against them in litigation

Caveats:Can’t help create false evidenceDodges issue of Spoliation BUT lawyers should be very

careful here – may have obligation to advise to preserve and maintain social media account/postsSee subst. law

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Obtaining Emails and Social NetworksHypo: spouse blissfully happy and share everything, including passwords to email and social networks. Unfortunately, the bliss ends and the two spouses separate. Neither explicitly informs the other not to use the passwords and neither changes their passwords.

Question: May one spouse use the other’s passwords to review their email and social network?

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Beware the Stored Communications ActSCA prohibits a person from intentionally accessing without authorization a facility through which an electronic communication service is provided, or intentionally exceeding an authorization to access that facility

What does this mean?Can’t access spouse’s email without permission If password given for a certain purpose, cannot use for

other purposesother purposesInstalling keystroking software likely unauthorized

May apply to social networks such as FB and Twitter

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One Last Source of Email Discovery86% of employees use work email for personal purposes

YES: Stengart v Loving Care Agency Inc 990 A 2d 650YES: Stengart v. Loving Care Agency, Inc., 990 A.2d 650 (N.J. 2010): Employee had objectively reasonable expectation of privacy in pre-suit e-mail messages with her attorneys sent on company owned and monitored system notwithstanding company policy to the contrary.

NO: Scott v Beth Israel Medical Center 847 N Y S 2d 436NO: Scott v. Beth Israel Medical Center, 847 N.Y.S.2d 436 (N.Y.Sup. 2007): Employee’s communications with attorney on company-owned system were not privileged; company policy clearly stated employees had no privacy, and plaintiff was clearly on notice of the policy.

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Supervision

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Supervising WITHIN the Law FirmRPC 5.1 (supervisors): responsible if orders or ratifies

conduct, and/or knows of conduct at time consequences can be avoided or mitigated

RPC 5.2 (subordinate lawyers): the rules are rules but you can go to a supervisor to resolve “arguable question of professional duty”

Model 5 3 (nonlawyers): shall make “reasonable efforts” toModel 5.3 (nonlawyers): shall make reasonable efforts to ensure person’s conduct is compatible with lawyer’s obligations

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Supervision OUTSIDE the Law FirmLawyer ultimately responsibility for e-discovery process

Use of third-party vendorsUse of third-party vendorsKnow your vendorKnow their procedures/toolsE.g., Computer Assisted ReviewConduct quality control checks, if possibleProvide privileged information in bubble wrapProvide privileged information in bubble wrap

Be wary of vendor advisorsOnly lawyer can determine privilege or relevanceCould constitute UPL

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Vendor Glitches Do happen…Producing Defendant hired a vendor and contract lawyers to ensure a robust privilege screening process in a large production (1.2 million documents). Due to a vendor’s “software glitch,” a number of privileged emails were sent to Plaintiff. Defendant counsel was not aware of disclosure until deposition.Datel Holdings Ltd v. Microsoft Corp., 2011 WL 866993

(N.D. Cal. 2011)

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P f i li dProfessionalism and Cooperation

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Cooperation and Professionalism

Lawyers have twin duties of loyalty: While they are retained to be zealous advocates for their clients, theyretained to be zealous advocates for their clients, they bear a professional obligation to conduct discovery in a diligent and candid manner. Their combined duty is to strive in the best interests of their clients to achieve the best results at a reasonable cost, with integrity and candor as officers of the court. Cooperation does not conflict with the advancement of their clients’ interests—it enhances it. Only when lawyers confuse advocacy with adversarial conduct are these twin duties in conflict.

Judge Nolan in Kleen Products, LLC, et al. v. Packaging Corp. of Amer., et al., Case: 1:10-cv-05711, Document #412 (ND, Ill., Sept. 28, 2012) (quoting The Sedona Conference® Cooperation Proclamation, 10 Sedona Conf. J. 331, 331 (2009)).

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Thank you!

Question?

David ElkanichDavid Elkanich(503) 517-2928

[email protected]

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