All of us have become attached and even dependent on a variety of new tech toys. Necessity has dictated that we are equipped with at least a cell phone. Computers have become a mainstay of our offices. Internet capability is essential for e-mail and for Web-based research. But increasingly there is a price to be paid as standards and regulations clash with the use of these tools.
Recently, upon entering a courthouse I had to surrender my cell phone to the security officers. Why? My cell phone has a built-in camera, and with the statutes regulating no cameras in the courtroom, I went in but my phone did not. I’m sure the legislature in drafting the law had no idea that cameras could become so small as to be embedded within a cell phone and possessed the capability to transmit pictures as e-mail attachments from a device fitting in the palm of one hand. A far cry from the Canons, Nikons, and shoulder-mounted television cameras hovering as a “high profile” case is getting underway, these cameras can be secured and worn out-of-view clipped to a belt.
Cell phones, smart pagers, and PDAs also add the dimension of text messaging. Recently, an on-going trial had to be delayed for a time as it was discovered that two jurors had had a text messaging conversation from the jury box. The Judge was forced to examine, for the first time, whether the jury was tainted by conduct of empanelled jurors who may have violated the law. How the world has changed.
Lawyers, clients, jurors and court personnel have to be aware of the changing nature of technology and the use or abuse of that technology. We must be vigilant and prudent in not putting the system at risk by exposing breaches in confidentiality, privacy and security that threaten rights belonging both to the institution as well as the individual.
Does the potential for exposure always need to be regulated? Can we still take advantage of technology without sacrificing the noble standard we hold dear? These are legitimate questions and deserve careful dialogue between the bar and the courts. Order and decorum are preserved through thoughtful examination when tradition butts up against the future. And we must be willing participants in the process.
Electronic discovery, the search of an opposing party or non-party witnesses’ computers, electronic databases and/or other storage devices, is becoming commonplace in the legal arena. Rules 26(A)(1), 26(A)(2), 34, and 45 of the Federal Rules of Civil Procedure provide for court ordered and mandatory production of electronic records and databases. The Illinois State Courts have not yet adopted these rules regarding E-Discovery. However, given the pervasiveness of E-Discovery, we can reasonably expect such rules soon. This article provides some factors for an attorney to consider when selecting an outside vendor to conduct E-Discovery.
Implicit in this article is the caveat that E-Discovery data collection probably should not be done in-house by a law firm. This is to avoid a very real situation where the subject litigation implodes upon a law firm that collects the E-Discovery. Such a firm could be alleged to have committed spoliation of evidence, by inadvertently changing the data collected. In that scenario the firm might be made a co-defendant—a very messy situation, to say the least. Therefore, this article assumes a firm has decided use an outside vendor to collect the data in the E-Discovery project.
Factors to consider in the process of selecting an outside vendor and arriving at a vendor services agreement are:
1. Get it in writing: The terms regarding employing an outside vendor should be rendered into a written document—a vendor services agreement. One important clause would set venue for mediation or arbitration in a mutually convenient location. However, it would probably be unacceptable to have an arbitration location set by agreement in Boston when the subject litigation and law firm are located in Illinois.
2. Nature and frequency of communication. The vendor service agreement should also include language that spells out the project management process including the communication levels and the project status reports both in scope and frequency. If your client wants monthly or bi-weekly project status reports, that language should be in the vendor service agreement.
3. Expert witness experience. The vendor should be also interviewed and queried about how much experience the vendor has providing in-court expert testimony explaining the data collection process, data review and production. You do not want admission of critical documents into evidence to hinge on a vendor who has never been tested under the fire of cross-examination. Without adequate expert witness testimony regarding the integrity of the chain of custody and accurate collection, you will likely be unable to establish an adequate foundation to introduce the information collected by the vendor.
4. Ability to handle change. The vendor should be able to handle change in an E-Discovery project by being able to ramp up or ramp down the scope of the collection, review, or production aspects of a court mandated E-Discovery project. This is a very important element because one of the truisms in life also applies to the law: the only constant is change.
5. Sufficient capacity. Determine the vendor’s ability to get the job done under deadline under a worst case scenario where the scope might have to be increased dramatically. This element will probably pare down the number of vendors to consider.
6. Compatible billing processes. It is wise to have the outside vendors bill the client directly, but with an additional clause in the vendor agreement that provides the law firm is allowed to deal with the vendor even though the vendor is being paid directly by the client. The vendor services agreement should provide that the law firm approve any changes regarding the vendor services agreement as such changes might affect the nature and scope of the E-Discovery project that had been ordered by court. Additionally, be sure to spell out in the vendor agreement what elements of accounting will be required in any billing statements. The accounting elements required should be obtained from the client to avoid any problems with the client not understanding the vendor’s bill.
7. Reliability. This is the most important factor. Court deadlines must be respected by all parties and vendors. If the deadline is violated, there is no guarantee the court will extend it. Accordingly, the vendor’s service agreement should include a deadline. Therefore, the careful practitioner may consider including language in the vendor’s service agreement that withholds final payment on project pending the vendor making deadline. Such language, of course, would be applicable subject to probable changes in the scope of the E-Discovery project. Amending the deadline date(s) to the vendor services agreement is recommended in the change of scope scenario.
The above factors are suggestions and not an end-all to one’s analysis employed to select a proper vendor and fashion a vendor services agreement for an E-Discovery project. However, the above factors are a good starting point and can form a strong backbone for an E-Discovery vendor services agreement.
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*Mark Moran is an associate with the litigation law firm of Reed, Armstrong, Gorman, Mudge & Morrissey, P.C. in Madison County, Illinois. He is a 1986 graduate of St. Louis University Law School with a Master of Science in Management of Computer Information Systems from University of Missouri-St. Louis. He is currently a candidate for an LLM in Information Technology Law at John Marshall Law School. He is a litigator.
Favorites is a new feature of the newsletter that highlights those programs, utilities, gizmos, gadgets, etc., that we love. Sure, we could probably live without these, but who would want to. If you have a favorite you want to tell others about, contact Bryan Sims at bsims@jgtattorneys.com. This installment of Favorites highlights two programs: Network Unplugged and Firefox.
Network Unplugged
If you use a laptop as your primary computer, you must have this program. With Network Unplugged you select the files from your server that you want access to when you are away from the office. The program synchronizes with your network and creates a virtual network on your laptop’s hard drive. Thus, when you are no longer connected to your network, you can still access those files. Plus, unlike the utility included with Windows, you access the files using the same directory structure as you would if you were still connected to the network.
Selecting the files that create your virtual network is easy. You simply create a project in the program and then drag and drop, folders or files into that project. If you want, you can select a top level folder and have all of the subfolders included. Otherwise, you can drill down one or more levels and select only those folders you want.
As an added bonus, you can also use Network Unplugged to create a backup copy of your local files. Simply create a project, select or create a network location to place your back up files, and then select the files you want backed up. Again, you can easily select these files by dragging and dropping them. The program will also make a back up copy of your Outlook .pst file.
You can exercise great control over the program in terms of when you want it to synchronize your files. For example, you have it automatically synchronize at a particular time. You can also set it to synchronize when you connect to the network and when you shut down. Further, you can set different synchronization schedules for each of your different projects.
When I first got my laptop. I loved the ability to carry it around. I hated the fact, though, that I was constantly copying network files to my hard drive so that I could work on them away from the office. I also ran into problems when I forgot to copy the most recent version of a document from my local drive to the network. Network Unplugged has solved this problem for me. I simply have the program synchronize the folders for all of the cases I am currently working on. When I want to work on a file, I simply work on it. It does not matter if I am in my office or on the beach. I know that I have the file with me and that, when I return to the office, one quick synchronization will ensure that the same version of the file exists on both my local drive and the network drive.
I have a fondness for programs that do one thing and do them well. Network Unplugged does one thing and does it exceptionally well. I would not use a laptop without also having this program.
Further information about Network Unplugged can be found at <http://www.mobiliti.com/>. A single user license costs $80. Mobiliti also allows you to download the program for a free 21-day trial period.
Firefox
When it comes to Firefox, I have only one thing to say: tabbed browsing. Sure, Firefox has lots of other great features. For example you can install extensions that allow you to automatically map a highlighted address, to use Bug Me Not, to display only the negative feedback for a eBay seller, to display the weather forecast, to more easily download files, to track overnight packages, or, literally, to customize your web browser in more than 700 other ways.
All of those features are extras that help make Firefox great. The single best thing about Firefox though is tabbed browsing. With tabbed browsing, it is very easy to switch back and forth between different web pages. I find this especially useful when doing research on Westlaw. I can open several cases at once, each in its own separate tab. I can then click on the various tabs, quickly and easily scanning the cases to see if they are helpful to me. I can quickly eliminate the cases that are obviously irrelevant or of no assistance by closing the tab that the case is in. In fact, the tabbed browsing has become so popular that Microsoft has included it in the beta version of Internet Explorer 7.
In addition to the wonders provided by tabbed browsing, Firefox also includes a pop up blocker that, in my experience, works very well. Another great feature is that it includes a search bar next to the address bar. This search bar contains several sites such as Google and Amazon. Additionally, you can add other sites as well. Thus I can easily search for something on Google, Internet Movie Database, Google Maps, eBay, or Amazon, without first navigating to one of those home pages.
In sum, Firefox is a fast, user friendly web browser that its virtually infinitely customizable. In addition to all of those great features, it is also absolutely free. You can download your free copy of Firefox at <www.mozilla.org>.