Legal Tech Blog

What Heartbleed means for attorneys and third-party storage of client materials

Posted on: April 14th, 2014 by Matthew Clover

The Heartbleed bug, which surfaced at the beginning of last week, is one of the worst security breaches that the internet has had to deal with. It has been around for approximately two years, undetected by anyone except for, potentially, the NSA. The vulnerability allows attackers to grab usernames, passwords, and actual content, as well as impersonate services, and there is currently no way to detect whether it has been exploited or not. This vulnerability not only affects websites, but also hardware such as wifi routers and firewalls. So, what practical steps should be taken to protect any client materials stored at third party locations?

The first item on the list would be to assure your client that you are contacting the vendors involved. The next step would be to find out if any of the vendors you use were affected by the bug, and to learn as much as possible about what steps the vendor has taken and is taking to protect your client’s data. There are tests that can be done regarding whether websites have been patched, one of them can be found here. A list of hardware vendors to check can be found here. Even if the vendor assures you that the hardware has been patched, you will want to check your own hardware against the list. Once you have confirmation that all vendor services have been patched, the last item is to change your passwords for these services. Although it may be obvious to do so, keep the client informed throughout this process, find answers to any questions the client has, and maintain communication with the vendor so that you, and the client, can rest assured that reasonable steps have been taken to protect their data.

Google Glass Already Leaving its Mark on Legal Landscape

Posted on: April 10th, 2014 by Josh Ross

Google Glass—the wearable computer that allows users to, among many other things, take photos, shoot videos, send messages, find directions, and browse the web using voice commands—has been available to beta users, called “Glass Explorers,” for some time and is reportedly set for broader public release later this year.  Entry to the general market will undoubtedly give rise to questions about how the device, and its uses, will change the legal landscape (if at all) and how the device will differ from existing technologies as a target of discovery requests and related discovery obligations of litigants. Read more…

Managing E-Discovery Issues in Litigation – Deschutes County Bar Association

Posted on: April 7th, 2014 by Josh Ross and Angel Falconer

Join us for a lunchtime CLE in Bend, Oregon on Tuesday, April 29.

  • Topic: ”Managing E-Discovery Issues in Litigation”
  • Presenter: Josh Ross and Angelene Falconer of Stoll Berne, Portland
    Josh and Angelene regularly handle complex litigation matters. They will discuss strategies and highlight issues that frequently arise, and offer tips on managing e-discovery issues efficiently.
  • Venue: The Oxford Hotel, 10 Below
  • Time: Buffet opens at 11:45, CLE will be from 12 to 1
  • Cost: $25 for lunch and CLE if registered by 5pm on on April 24th. After that, cost is $30.
  • Credit: One General CLE credit pending

 

www.deschutesbar.org/

[Revised] Proposed Amendments to the Federal Rules of Civil Procedure

Posted on: April 4th, 2014 by Angel Falconer and Josh Ross

Now that the public comments period has closed for the Proposed Amendments to the Federal Rules of Civil Procedure, we thought it was time to do a more in-depth follow up to our post about Judge Scheindlin’s criticism of the proposed changes.  Rather than reading all of the thousands of written submissions (you can do that here) we did a breakdown of all of the speakers’ comments at the public hearings before the advisory committee and reviewed the materials that will be considered at their next meeting here in Portland, OR next week.  Read more…

Contractual Limits on E-Discovery

Posted on: April 1st, 2014 by Angel Falconer

This Law Technology News series explores the possibility of limiting e-discovery through agreement between the parties.  Part 1 discusses the potential benefits of these contracts and what provisions might be considered.  Part 2 cautions parties about the risks of diving into this uncharted territory, as the courts may find some provisions to be unenforceable.

Staying Secure While You Travel

Posted on: March 14th, 2014 by Matthew Clover

Free public WiFi is everywhere. At cafes, hotels, the airport, courts, and many other locales. Its convenience, and the lack of unlimited cellular data for many, mean many of us use it to connect while we are away from home.  Using free public WiFi increases your risk of a data breach, given how easy it is to download tools to snoop for information on these networks. Firesheep is one such tool, and is easy to use. Wireshark is another one; it takes a little more technical know how but also allows hackers to grab unencrypted data from unsuspecting victims. Luckily, there are some solutions out there that can help keep you secure when using free public WiFi. Read more…

Recovery of e-discovery expenses as “costs”

Posted on: February 26th, 2014 by Josh Ross

Most litigators (and clients) can confirm that costs of e-discovery and related services have skyrocketed in recent years.  In earlier blog posts, we’ve explained why “insourcing” litigation support services, including e-discovery services, can help reduce those costs.  Still, business litigation almost always requires collecting, managing, storing, and producing electronic data in response to requests from opposing parties.  While a 2008 amendment to 28 U.S.C. section 1920 makes clear that, generally, ESI is considered a cost of “making copies” and generally recoverable by a prevailing party, which specific costs are recoverable if your client prevails?  A couple recent decisions provide some guidance and food for thought. Read more…

Federal Judiciary Websites Temporarily Shut Down

Posted on: January 28th, 2014 by Josh Ross

PACER, the on-line service that gives public access to case and docket information for the federal court system, was temporarily shut down on Friday. An ABA Journal article posted yesterday, which can be read here, reported that the shutdown may have been the result of a cyber attack. That article reports that the FBI is evaluating the claim, while other sources suggest that the FBI has determined the outage was due to a technical glitch. While lawyers practicing in the federal system should be concerned about this, PACER is up and running again.

Trial Presentation Made Easy

Posted on: January 8th, 2014 by Steve Larson and Angel Falconer

The following article was published originally on December 19, 2013 in the American Bar Association Class Actions and Derivative Suits Litigation Committee Fall 2013, Vol. 24 No. 1 newsletter.

Jurors, trial judges, and arbitrators have grown to expect that lawyers will use technology in the courtroom to help present the evidence. As a result, lawyers must know how to manage the trial exhibits, demonstrative aids, and other visuals to be used at trial in an electronic environment.

With all of the new apps available for the iPad and other tablets, a lawyer can now do much more on his or her own. Complex cases like class actions, however, typically have a large number of trial exhibits, videotaped testimony, and fact patterns that involve hard-to-grasp issues that require more sophisticated demonstrative aids. In those cases, it can be invaluable to have an assistant who can rapidly find and display trial exhibits, visually connect a piece of testimony to a demonstrative exhibit, and pull up videotaped deposition testimony for impeachment.

Many capable, independent third parties offer their services to assist with trial presentation. An in-house paralegal experienced in current trial presentation software, however, provides several advantages over an outside consultant:

First, an in-house paralegal may be as familiar with the documents as the lawyer, if not more so. That familiarity makes the process of calling out or highlighting a specific part of a document very smooth. It also makes the process easier if the lawyer goes off-script during the course of his or her presentation. Jurors, judges, and arbitrators notice and appreciate that a lawyer and trial assistant work well together.

Second, an in-house paralegal has a more hands-on role pretrial than an outside consultant and therefore will be familiar with the witnesses, themes of the case, and what demonstrative aids are intended to emphasize. He or she will often be able to suggest a trial exhibit to use for cross-examination and may offer a layperson’s perspective on how the evidence is unfolding during trial.

Third, it is easier to practice opening statements and closing arguments when working with someone in-house. The lawyer will have the opportunity to practice different approaches before trial because in-house paralegals are in the office almost every day. And the paralegal’s feedback could lead to important changes to how and in what order visuals are used during opening statements and closing arguments.

It may seems like a huge undertaking to train a paralegal to use the necessary hardware and software, but a few simple steps can make it relatively painless.

Trial presentation software programs offer customized training solutions, including on-site training for lawyers and staff and thorough written materials. Then it’s just a matter of practice, practice, practice. Starting as early as possible with building the trial database and practicing with case evidence in the database will give the paralegal the opportunity to see what works, identify technical problems, make corrections and adjustments, or seek out more training in advance of trial.

Going through the practice sessions together multiple times will help the lawyer and paralegal learn the best ways to communicate with each other. A paralegal who knows the case may also be able to help the lawyer refine the message. Others who sit in on a practice session can provide additional feedback.

Courtroom logistics are a critical part of trial presentation. Coordinate with courtroom personnel in advance to make sure that equipment and additional furniture can be accommodated (there might not be room at counsel’s table for your paralegal). Visit the courtroom to get a feel for the layout, including where to access electrical outlets, set up a projector or monitors, and place demonstrative aids. You should also figure out where the attorney can best engage the jury while being able to communicate with the paralegal. The technology available in courtrooms varies greatly; you may need to make arrangements with opposing counsel to share some of the technology, such as monitors or projectors. If possible, set up and test all equipment the day before trial to prevent disasters from happening later on.

There is no replacement for experience, but the more the lawyer and paralegal practice together, the more confident both will be in each other’s abilities.

Given the potential for better performance, increased satisfaction from the fact-finder, more peace of mind for the trial lawyer, and lower costs for the client, using an in-house paralegal for trial presentation is an alternative that should be considered.

© 2013 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Technology Assisted Review

Posted on: December 17th, 2013 by Angel Falconer

Last week a group of attorneys and paralegals from our litigation department took advantage of an opportunity to hear some advice from e-discovery pioneer U.S. Magistrate Judge Peck on “TAR” (Technology Assisted Review or Predictive Coding) during a live webinar exploring when to employ such technology.  Judge Peck himself became ensnared in an e-discovery sideshow for his February 2012 opinion in Da Silva Moore “that computer-assisted review is an acceptable way to search for relevant ESI in appropriate cases.” (That saga has finally come to an end.)

I jotted down a few good takeaways from Judge Peck:

  • TAR should not be held to a higher standard than traditional methods.  Keyword and linear, eyes on every page review are rife with their own challenges, and there can be no expectation of perfection.
  • Cooperation and Transparency. Peck mentioned that all the judges for one state’s entire judiciary recently signed onto The Sedona Conference Cooperation Proclamation, and he suggested that in addition to disclosing relevant “seed” documents (documents that are used to teach a computer’s algorithms how to determine what’s relevant), parties might consider logging and disclosing the non-responsive ones, too (without disclosing privileged documents, of course).
  • Peck recommended using analogies to educate a judge who might not be familiar with e-discovery and TAR.  He likened predictive coding technology to the spam filters on our emails, something we all rely on and benefit from in our daily lives.

 

About half of webinar attendees had already used TAR. The webinar was organized by an ediscovery vendor that provides TAR features in the databases it hosts for clients, so that figure is probably skewed. But with the amount of electronic data growing at a rate that’s hard to imagine (and outpacing the amount of storage available to capture it) the percentage of litigators using TAR is bound to increase as well.

Legal Disclaimer

The information contained in this blog does not constitute legal advice, and does not create an attorney-client relationship. We make no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained in or linked to this blog.

About this blog

The goal of this blog is to provide a forum for discussing issues related to technology used in law firm and case management, and share information about CLEs, legal opinions, articles and products that may interest Oregon practitioners in the area of e-discovery.

About the authors

  • Matthew Clover

  • Angel Falconer
  • Matthew Clover has been the IT Administrator at Stoll Berne since 2008. He supports attorneys, paralegals, and clients with the technology side of litigation. Matthew has a broad range of experience with legal industry technology, as well as more widely used technologies. He helps manage Stoll Berne's in-house e-discovery systems and has significant experience advising attorneys on the collection and management of electronic discovery and the use of trial software. Matthew also supports the firm's overall network, mobile, and applications infrastructure.
  • Josh Ross

  • Angel Falconer
  • Joshua Ross represents individuals and businesses in a broad range of commercial disputes, including unlawful trade practices, fraud, securities issues, class actions, and contract disputes. Josh is a member of the Oregon State Bar and the Washington State Bar, and is a Region 5 member of the OSB Board of Governors.
  • Angel Falconer

  • Angel Falconer
  • Angel Falconer is Stoll Berne's Litigation Support Manager. She supports attorneys and clients through the entire litigation process and has worked on cases involving the securities laws, complex commercial disputes, class actions, unfair competition and trade secrets. Angel has expertise directing large-scale discovery projects and helps manage Stoll Berne’s in-house e-discovery systems. Angel supervises electronic evidentiary presentations in arbitration hearings and in state and federal trial courts.
  • Steve Larson

  • Angel Falconer
  • Steve Larson has been representing investors, consumers and employees in class actions in Oregon for over 20 years. He is a shareholder at the law firm of Stoll Berne in Portland, Oregon.
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