new york county lawyer-september 2012

16
By Joseph J. Bambara, Esq. Communities of people who share inter- ests and/or activities, or who are interest- ed in exploring the interests and activities of others, are increasingly connecting with each other online via social network serv- ices (SNS). With over 900 million regis- tered users on Facebook, 300 million on Twitter, 200 million on Google+, and 120 million users on LinkedIn, people are spending more time on SNS today than ever before, therefore impacting how evi- dence is obtained and shaping eDiscovery. Communications made on Facebook and other SNS are increasingly being used as sources of evidence in the courts. Recent use of this evidence has spurred debate over the legality and ethics of harvesting such information. For example, Facebook’s “terms of use” specify that “the website is available for your person- al, noncommercial use only,” misleading some to believe that others may not use the site for conducting investigations. However, Facebook spokespeople have made it clear that Facebook is a public forum and all information published on the site should be presumed available to the general public. Legal experts agree that public information sources such as Facebook can be legally used in criminal or other investigations. If we agree that social networking sites may yield relevant information, the issue then is gaining access to that information. In EEOC v. Simply Storage Management, LLC, 270 F.R.D. 430 (S.D. Ind. 2010), the court stated that discovery of social net- working sites involves the application of basic discovery principles, just in a novel context. The Stored Communications Act (SCA), 18 U.S.C. § 2702(a)(1) and (2), prohibits Internet operators from “know- ingly divulging to any person or entity the contents of a communication while in electronic storage…” or “which is carried or maintained on that service.” Accor- dingly, the SCA provides that Internet operators must have the “lawful consent of the originator or an addressee or intended recipient” before revealing social networking information. There are several methods for obtaining social networking data; the method you choose will depend on the type of infor- mation sought. Basic subscriber informa- tion, including the user’s name and e-mail address, can be obtained with a subpoena. Note, subscriber information is not diffi- cult to obtain. Courts have consistently held that a person lacks a legitimate expectation of privacy when using such Internet-based programs. Crispin v. Christian Audiger, Inc., 717 F. Supp. 2d 965 (S.D. Cal. 2010) is an example of such a ruling. To obtain more information, section 2703 of the SCA affords what is referred to commonly as a 2703(d) order and requires specific facts that the data is relevant and material to the investigation. Without prior notice, a 2703(d) will return only non-content. For example, it will show you the recipient of the message, but not its content, for which you need a 2703(d) order with prior notice. Most social networking sites have privacy settings ranging from communications only accessible by a select group of individuals to communications shared with the public at large. Courts have looked to these priva- cy settings when determining whether post- By William Aronin, Esq. Increased freedom and security are just some of the benefits of incorporating cloud computing into your legal practice. Before doing so however, an attorney must understand what “cloud computing” means, and must weigh the benefits of the technology against its potential risks. There are a number of technical defini- tions of cloud computing, but the concept behind it is surprisingly simple. The “cloud” refers to the storage and access of data on remote servers, instead of on an individual’s own computer or local net- work. Almost everyone has used the cloud, even if they didn’t realize it; using Gmail, uploading pictures to Facebook, or sharing a video on YouTube are all exam- ples of common uses of cloud computing. For lawyers, especially those in small firms, cloud computing offers a number of benefits. Increased freedom is perhaps the single greatest aspect of the technology. Instead of being tied to a particular office or laptop, an attorney with a cloud setup can access relevant client information, as well as review and edit documents, from anywhere with an Internet connection. It also allows lawyers to work remotely, without any lost access or productivity. If utilized carefully, increased security can be another advantage of cloud computing. Most reputable cloud providers use high- level encryption standards, and the physical servers are often kept in highly secure facilities (Amazon’s S3 service, which is the platform that many cloud providers are built on, actually houses its servers in “undisclosed locations” with military-grade security). Additionally, because most cloud providers keep redundant copies of all uploaded data, your files are secure against mechanical failure and natural disaster. Scalability is another advantage of cloud computing. As law firms grow, those that rely on local servers can find it costly to upgrade their equipment every time more storage or processing power is needed. On the other hand, those firms relying on cloud solutions find that upgrading is easy. Adding new staff requires little more than creating a new linked account, and adding gigabytes of storage is fast and inexpensive. While we’ve discussed some of the bene- fits, there are still serious concerns with cloud computing that an attorney must be aware of before using it to store critical information. As with any issue touching upon client confidentiality and a lawyer’s use of third party contractors, an attorney must ensure that the use of a new technol- Social networking and eDiscovery: What’s Acceptable? (See Social Networking on Page 14) NEW YORK COUNTY LAWYER I N S I D E Social Networking & E-Discovery ......................1 The “CAR” Keys to Defensibility .....................2 Internet Marketing ...........2 Ethical E-Discovery .........3 Internet Access in NYC Courts .............................11 The Pitfalls of “Do-It Yourself” Sites ...............12 Annual Dinner ................................. 9 Attorneys’ Guide Order Form...........6 Book Review: Business & Commerical Litigation..................... 7 Book Review: Hello Kitty Must Die ......................14 CLE Programs ..................................4 Cloud Computing..............................1 Digital Training Center CLE Programs .........................................10 Ethical E-Discovery ..........................3 Ethics Hotline ...................................5 Events Calendar ................................9 Internet Access in NYC Courts ......11 Internet Marketing ............................2 Library Notes ..................................10 Message from Barbara Moses, President of the NYCLA Foundation ........................................6 Message from Stewart D. Aaron, President of NYCLA ........................3 NYCLA in the News ......................12 Public Service Awards Reception .....9 Recent Events Photos ...................... 8 Social Networking & E-Discovery...1 The “CAR” Keys to Defensibility ....2 The Pitfalls of “Do-It Yourself” Sites.................................................12 TA B L E O F C O N T E N T S September 2012 Visit us at www.nycla.org Volume 7 / Number 15 Cloud Computing – Why and How (See Cloud Computing on Page 15)

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As a modern day lawyer, it is not uncommon to take for granted all the technology we have at our fingertips. This issue of the New York County Lawyer addresses some of the issues that technology has brought to our profession on a variety of topics related to law and technology. Flip through and gain knowledge and feel better equipped to practice in your field using ever-changing technology to which the legal community has access today.

TRANSCRIPT

Page 1: New York County Lawyer-September 2012

By Joseph J. Bambara, Esq.

Communities of people who share inter-ests and/or activities, or who are interest-ed in exploring the interests and activitiesof others, are increasingly connecting witheach other online via social network serv-ices (SNS). With over 900 million regis-tered users on Facebook, 300 million onTwitter, 200 million on Google+, and 120million users on LinkedIn, people arespending more time on SNS today thanever before, therefore impacting how evi-dence is obtained and shaping eDiscovery.

Communications made on Facebook andother SNS are increasingly being used assources of evidence in the courts. Recentuse of this evidence has spurred debateover the legality and ethics of harvestingsuch information. For example,Facebook’s “terms of use” specify that“the website is available for your person-al, noncommercial use only,” misleadingsome to believe that others may not usethe site for conducting investigations.However, Facebook spokespeople havemade it clear that Facebook is a publicforum and all information published on

the site should be presumed available tothe general public. Legal experts agreethat public information sources such asFacebook can be legally used in criminalor other investigations.

If we agree that social networking sitesmay yield relevant information, the issuethen is gaining access to that information.In EEOC v. Simply Storage Management,LLC, 270 F.R.D. 430 (S.D. Ind. 2010), thecourt stated that discovery of social net-working sites involves the application ofbasic discovery principles, just in a novelcontext. The Stored Communications Act(SCA), 18 U.S.C. § 2702(a)(1) and (2),prohibits Internet operators from “know-ingly divulging to any person or entity thecontents of a communication while inelectronic storage…” or “which is carriedor maintained on that service.” Accor-dingly, the SCA provides that Internetoperators must have the “lawful consentof the originator or an addressee orintended recipient” before revealing socialnetworking information.

There are several methods for obtainingsocial networking data; the method you

choose will depend on the type of infor-mation sought. Basic subscriber informa-tion, including the user’s name and e-mailaddress, can be obtained with a subpoena.Note, subscriber information is not diffi-cult to obtain. Courts have consistentlyheld that a person lacks a legitimateexpectation of privacy when using suchInternet-based programs. Crispin v.Christian Audiger, Inc., 717 F. Supp. 2d965 (S.D. Cal. 2010) is an example ofsuch a ruling. To obtain more information,section 2703 of the SCA affords what isreferred to commonly as a 2703(d) orderand requires specific facts that the data isrelevant and material to the investigation.Without prior notice, a 2703(d) will returnonly non-content. For example, it willshow you the recipient of the message,but not its content, for which you need a2703(d) order with prior notice.

Most social networking sites have privacysettings ranging from communications onlyaccessible by a select group of individualsto communications shared with the publicat large. Courts have looked to these priva-cy settings when determining whether post-

By William Aronin, Esq.

Increased freedom and security are justsome of the benefits of incorporatingcloud computing into your legal practice.Before doing so however, an attorneymust understand what “cloud computing”means, and must weigh the benefits of thetechnology against its potential risks.

There are a number of technical defini-tions of cloud computing, but the conceptbehind it is surprisingly simple. The“cloud” refers to the storage and access ofdata on remote servers, instead of on anindividual’s own computer or local net-work. Almost everyone has used thecloud, even if they didn’t realize it; usingGmail, uploading pictures to Facebook, orsharing a video on YouTube are all exam-ples of common uses of cloud computing.

For lawyers, especially those in smallfirms, cloud computing offers a number ofbenefits. Increased freedom is perhaps thesingle greatest aspect of the technology.Instead of being tied to a particular officeor laptop, an attorney with a cloud setupcan access relevant client information, as

well as review and edit documents, fromanywhere with an Internet connection. Italso allows lawyers to work remotely,without any lost access or productivity.

If utilized carefully, increased security canbe another advantage of cloud computing.Most reputable cloud providers use high-level encryption standards, and the physicalservers are often kept in highly secure

facilities (Amazon’s S3 service, which isthe platform that many cloud providers arebuilt on, actually houses its servers in“undisclosed locations” with military-gradesecurity). Additionally, because most cloudproviders keep redundant copies of alluploaded data, your files are secure againstmechanical failure and natural disaster.

Scalability is another advantage of cloudcomputing. As law firms grow, those thatrely on local servers can find it costly toupgrade their equipment every time morestorage or processing power is needed. Onthe other hand, those firms relying on cloudsolutions find that upgrading is easy.Adding new staff requires little more thancreating a new linked account, and addinggigabytes of storage is fast and inexpensive.

While we’ve discussed some of the bene-fits, there are still serious concerns withcloud computing that an attorney must beaware of before using it to store criticalinformation. As with any issue touchingupon client confidentiality and a lawyer’suse of third party contractors, an attorneymust ensure that the use of a new technol-

Social networking and eDiscovery:What’s Acceptable?

(See Social Networking on Page 14)

N E W Y O R K

COUNTY LAWYERI N S I D E

Social Networking &E-Discovery......................1

The “CAR” Keys toDefensibility .....................2

Internet Marketing ...........2

Ethical E-Discovery.........3

Internet Access in NYCCourts .............................11

The Pitfalls of “Do-ItYourself” Sites...............12

Annual Dinner ................................. 9Attorneys’ Guide Order Form...........6Book Review: Business &Commerical Litigation..................... 7Book Review:Hello Kitty Must Die ......................14CLE Programs ..................................4Cloud Computing..............................1Digital Training Center CLEPrograms .........................................10Ethical E-Discovery..........................3Ethics Hotline ...................................5Events Calendar ................................9Internet Access in NYC Courts ......11Internet Marketing ............................2Library Notes ..................................10Message from Barbara Moses,President of the NYCLAFoundation ........................................6Message from Stewart D. Aaron,President of NYCLA ........................3NYCLA in the News ......................12Public Service Awards Reception.....9Recent Events Photos ...................... 8Social Networking & E-Discovery...1The “CAR” Keys to Defensibility....2The Pitfalls of “Do-It Yourself”Sites.................................................12

T A B L E O FC O N T E N T S

September 2012 Visit us at www.nycla.org Volume 7 / Number 15

Cloud Computing – Why and How

(See Cloud Computing on Page 15)

Page 2: New York County Lawyer-September 2012

September 2012 / The New York County Lawyer2

By Dino E. Medina, Esq.

The purpose of pretrial discovery in theAmerican legal system is to promote thefull disclosure of facts relevant to a givendispute. To this end, the Federal Rulespermit a litigating party to seek all infor-mation that is reasonably calculated tolead to the discovery of admissible evi-dence.1 There was a time when discoveryrequests would yield only boxes of docu-ments from which to locate relevantmaterial. The societal shift from paperdocuments to electronically stored infor-mation (ESI) over the past ten years,however, has led to sharp increases indiscovery data volume, review time andcost. The following statistics illustratethis phenomenon:

• Statisticians estimate that only five toseven percent of all data is createdoutside of a computer system.2

• 73 percent of all production costs areattributable to review of ESI.3

• The cost to review one gigabyte ofESI is between $5,000 and $30,000.4

As discovery in the legal industry contin-ues to evolve in this electronic age,defensible methods to manage increaseddata volume, speed-up review time andcurb review cost have become essential.

Technology’s latest solution to these dis-covery issues is computer-assisted review(CAR). CAR is a process by which analyt-ics technology leverages the subject matterproficiency of human document reviewersto make conceptually-based coding deci-sions on all documents within a particularuniverse or “corpus.” Attorneys with sub-

ject matter expertise must first generate a“seed” or “training” set of documents(e.g., 500 docs), code it consistently usinga specified protocol and run an analyticsengine against the “seed” set to extrapo-late its coding to the remaining documentsin the corpus. Next, the analytics softwaregenerates a random sample from the cor-pus, which is then re-coded by the attor-neys with subject matter expertise. Oncere-coded, the analytics tool will againextrapolate the coding to the corpus.Third, an overturn report is run which,among other things, allows one to see thepercentage of computer coding decisionsoverturned by the attorneys with subjectmatter expertise. Several iterations of thisprocess are implemented until the comput-er’s coding is overturned by the attorneyswith subject matter expertise at a rate ofless than five percent. This process isproven to be significantly less costly andtime consuming than traditional manualdocument review.5

Given all of the recent hype surroundingCAR and the judicial acceptance of this“black box” technology in the Da SilvaMoore, Global Aerospace and KleenProducts cases, one might wonder: “canCAR really be as reliable (and therefore,legally defensible) as traditional manualreview in identifying relevant data?” Thisquestion has become one of primordialimportance to large-scale litigators taskedwith sorting through huge volumes of ESIto find responsive and privileged materialin an efficient and cost-effective manner.As will become evident, CAR technologycombined with a robust audit trail canprovide a defensible mechanism to meetone’s e-discovery obligations.

How does one achieve defensibility in the

context of CAR? The producing partymust build a detailed audit trail that satis-fies a two-pronged test. The first prongspeaks to the “reasonableness” of theCAR process; the selected method mustaccurately capture a reasonably sufficientnumber of the responsive, non-privilegedESI pursuant to a given document request,and any remaining unproduced ESI is pre-dominantly not relevant or privileged.6 Anaudit trail satisfying the first CAR defen-sibility prong entails reaching agreementwith one’s adversary as to the degree ofrecall and precision the CAR softwarewill utilize in gathering, analyzing andcoding discovery documents.

Recall is the number of potentially rele-vant documents the system retrieves rela-tive to the number of documents in theentire collection7 (e.g., as a result of akeyword search or concept-based search).Precision is the number of relevant docu-ments identified in relation to the numberof potentially relevant documents previ-ously retrieved. Recall is an indicator ofthe system’s effectiveness in findingpotentially relevant data, and precision isan indicator of the accuracy of the docu-ment coding process. Recall is a measureof completeness or quantity, whereas pre-cision is a measure of exactness or quali-ty. With too little recall, potentially rele-vant information will be overlooked; withtoo little precision, one’s “relevant” docu-ment set becomes riddled with non-rele-vant documents. The key to defensibilityis a memorialized negotiation and agree-ment on these issues; it would be difficultfor one’s adversary to claim productiondeficiencies in the face of a written recalland precision rate agreement.

Additionally important in satisfying the

first defensibility prong as it relates toCAR, is the ability to document theprocess of coding “seed” documents andsubsequent system “training” documents. Itis generally understood that the technologyused to identify relevant data is only asgood as those training it. Because most dif-ficulties in the CAR process stem fromhuman review errors, the “seed” and sub-sequent “training” phases must be com-pleted accurately and consistently by attor-neys with expertise in the particular subjectmatter. Without accurate and consistenthuman input, the CAR analytics engine isunable to produce reliable results. Attor-neys with subject matter expertise shoulddraft a protocol detailing the criteria foraccurately and consistently categorizingdocuments for defensibility purposes.

Finally, the statistical components under-lying the CAR process must be scientifi-cally sound and documented to satisfythe first defensibility prong. These statis-tical components include random sam-pling, confidence levels, and confidenceintervals. Random sampling is a means toobtain a truly representative sample ofdocuments, by enabling all documentswithin a corpus to have an equal chanceof being selected. Random sampling canbe used to select the initial “seed” set andmust be used to draw samples for each ofthe iterative training rounds.

A confidence level expresses the level ofcertainty one can expect that a sample setof documents is drawn randomly from thesystem and reflective of the types of doc-uments in a given population. A confi-dence interval is the margin of error—expressed as both positive and negativenumbers—that a selected sample is truly

The “CAR” Keys to Defensibility

By Fred Cohen, J.D.

When we give presentations to attorneys,we inevitably hear one or two say, “I getmost of my business through referrals, Idon’t need a good website (or a websiteat all for that matter).” What these attor-neys fail to realize is that a firm’s web-site is not only a business developmenttool but also a big part of the firm’soverall appearance and reputation. Evenfirms bursting at the seams with newclients need to have a great website.Here’s why:

Referrals will Google YouSure, the accountant down the street mayrefer all of his clients to you but, inmany cases, his endorsement alone is notenough to seal the deal. After hearingyour name, prospective clients willGoogle you. They’re looking for yourcredentials and your contact information,and if they’re not able to find any of thisinformation easily, the likelihood ofthem contacting you decreases.

Colleagues and Opposing Counselwill Google YouWhen your name comes up at a businessmeeting or when you are first introducedto your opposing counsel, they willGoogle you. First impressions are every-thing. By not having a website or havinga poorly developed, or horribly outdatedwebsite, your firm may appear less pro-

fessional. An effective online presencehelps to establish your expertise andcredibility.

Referral Sources Also Use GoogleBy this point in the article, you shouldknow everyone uses Google. Okay, maybenot everyone but a few hundred millionpeople last year. Prospective referralsources are also using the web to findlocal attorneys who they might referclients to. Without a website, it’s more dif-

ficult to connect with new referral sourcesthat can drive business to your firm.

Your Site Should Be a Real Resourcefor Your Current ClientsSo you’re not looking for new clients onthe web? That doesn’t mean that yourcurrent clients shouldn’t have access tofirm resources online. As competitionstiffens and technology advances, firmsare delivering more value to their clientsthrough online tools such as document

storage, article libraries, and interactivecalculators. By not offering these onlineresources, you may eventually loseclients to competitors who are.

Online Reputation ManagementEven if your firm is not fully embracingthe web, other businesses and individualsare utilizing its many benefits. Each daythere are new sites on the web devoted tolocal reviews so consumers can make thebest decision when hiring a serviceprovider. You have no control overwhether you firm is reviewed and moreimportantly what reviewers say aboutyour work. You do, however, have con-trol of the online presence that you cre-ate. A well-optimized site will help toensure that Google users are led to aplace that you’ve created with accurateinformation about you as an attorney andyour practice as a whole.

Not wanting to attract new clients is noexcuse for not having an effective web-site. Working with an experienced websitedeveloper with expertise in the legal arenais the best way to establish a web pres-ence that meets your firm’s objectives.

Fred J. Cohen, J.D., is the founder andPresident of Amicus Creative Media, anattorney web design and marketing com-pany (amicuscreative.com), and aNYCLA member benefit partner. He canbe contacted at 877-269-0076.

But I get all of my business through referrals...

(See CAR Discovery on Page 15)

Page 3: New York County Lawyer-September 2012

September 2012 / The New York County Lawyer 3

By Aaron Esty, Esq.

In 2008, the Sedona Conferencedescribed the state of e-discovery prac-tice in dire terms. The law and policythink tank lamented that compared withother types of discovery, e-discoverycosts more, burdens the courts moreheavily, and is more prone to becomingmired in unproductive motion practice.1The authors of the organization’s 2008Cooperation Proclamation proposed, asthe title suggests, that cooperation is thekey to reducing the problems posed by e-discovery. The document insisted thatcooperation is consistent with zealousadvocacy and maintained that an attorneycan be both a dedicated client advocateand an ethical adversary.

Perhaps anticipating some degree of eye-rolling, the Sedona Conference dismissedthe notion that proclaiming a movementtoward cooperation is somehow utopian.And, in fact, recent developments in thecourts testify to the practical enforceabil-ity of cooperation in discovery practice.Cooperation and transparency havemoved beyond admirable principles, ascourts address the particular problemsposed by e-discovery by incentivizingcooperation and penalizing uncoopera-tive conduct. In the process, the rules ofprofessional conduct play a role in pro-viding courts with standards by which tojudge cooperation and decide on appro-priate measures to be implemented inpolicing e-discovery to promote coopera-tion, decrease costs, and lessen the bur-den on the judicial system.

Some courts have taken a soft approachtoward encouraging cooperation betweenparties. At least one judge has adoptedthe tactic of requiring counsel to read theCooperation Proclamation at the outsetof litigation, perhaps hoping to persuadethe parties that mutual support can bene-fit everyone. A more tangible incentive to

cooperate has been instituted in therequirement that the producing party bearthe initial cost of retrieving, searching,and producing e-discovery. Then, in amove designed to police the conduct ofthe parties in discovery, courts may shiftcosts when appropriate based on factorssuch as how well the requesting partyformulated the initial requests towarddiscovering relevant information, theimportance of the issues relating therequests and the total costs of the discov-ery including the resources of the partiesand the parties’ respective ability andincentive to control costs.2

As courts and opposing counsel becomeincreasingly familiar with proper e-dis-covery procedures, failure to cooperateand operate transparently may become aless viable option. After all, anyone defi-cient in meeting discovery obligationsmay likely find their shortcomingsexposed later on when an opposing partytakes the opportunity to inquire in depo-sitions about the procedures undertakento preserve, search, and produce e-dis-covery.3 When prodding and incentiviz-ing fail, federal courts have the power tosanction lawyers for violations of rulesof professional conduct under their inher-ent powers. For example, a court mayimpose sanctions under its inherent pow-ers for a lawyer’s failure to preserveelectronic documents.4 Or if a partydemonstrates a lack of cooperation andefficiency, those shortcomings maybecome the deciding factor in determin-ing the extent of cost-shifting.5 At themore extreme end, a court may ordermonetary sanctions and even allowadverse inference instructions at trialwhere a party makes misrepresentationsabout the storage of electronic files andfails to adequately search for responsivedocuments.6

Moving beyond cooperation, it should beobvious that counsel must possess some

level of understanding of e-discovery inorder to even be capable of cooperatingeffectively. Therefore perhaps no rule ofprofessional responsibility applies moredirectly toward improving e-discoverythan the rule of competence. Competencein e-discovery concepts and proceduresalso allows parties to undertake e-discov-ery more efficiently by tailoring requeststo discover relevant information and helpa case. On the side of the producingparty, competence means designing andoverseeing an efficient, cost-effectiveand reliable document review and pro-duction process. Failure to competentlyreview an electronic product could resultin a violation of other ethical rules, suchas the duty to protect a client’s confiden-tial information when proprietary or priv-ileged information is inadvertently pro-duced. In another scenario, an attorneywho fails to recognize the moment whena litigation hold must be issued for acompany or organization anticipating liti-gation fails to competently protect theirclient’s interests as a spoliation findingcould result.

Standing in the way of attorney under-standing of e-discovery is the fact thatlaw schools largely shun the teaching ofthis unesteemed subject. Likewise, fewattorneys aspire to specialize in an uncel-ebrated field that tends to bring to mindlitigation support geeks and dispiritedcontract attorneys hunched in front ofcomputer screens clicking through emailafter email. But courts are taking the leadin telling the profession that the time hascome to get off its collective high horseand start learning about e-discovery.Judge Peck of the Southern Districtissued a thunderous warning that counselmust work with opposing counsel andclients to craft processes that preserveand produce e-discovery in an accurateand efficient manner regardless ofwhether one is a lawyer who “did not

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Photo CreditsNeil Abramowitz

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M E S S A G E F R O M S T E W A R T D . A A R O NP R E S I D E N T O F T H E N E W Y O R K C O U N T Y L A W Y E R S ’ A S S O C I A T I O N

Ethical E-Discovery RequiresCooperation and Competence

Dear Readers:

As a modern day lawyer, it is not uncom-mon to take for granted all the technologywe have at our fingertips. Of course, thepractice of law has not always been so tech-nologically advanced. When I first startedpracticing in 1983, electric typewriters werestill in use. It was a few years before wordprocessors and then computers becamewidely used. Most communications withclients and adversaries were made by tele-phone or by letter—either mailed or hand-delivered. Fax machines next became a partof everyday life, but utilized a special typeof paper that curled up. I still rememberwhen Federal Express came into being—what a breakthrough! And next came the e-mails and handheld devices that are socommon today. Now we are beginning touse emerging technologies, such as cloudcomputing. All of this technology has had aprofound impact on eDiscovery—and westill have much to learn about both the tech-nology and eDiscovery.

This issue of the New York CountyLawyer addresses some of the issues thattechnology has brought to our profession.

If you’re not already using a cloud com-puting service and want to gain someinsight on how such services work, Iinvite you to learn why and how lawyersare using cloud computing services fromour cover story on this topic.

Meanwhile, eDiscovery is a hot andbroad topic and in an effort to fill you in,you will find three stories devoted to dif-ferent aspects of this topic within thisissue including one of our cover stories,“Social Networking and eDiscovery:What’s Acceptable.” This story explorescases in which social media postingswere used as evidence or from which

lawyers tried to subpoena evidence. Onpage 2, you can read “The ‘CAR’ Keys toDefensibility” to gain insight into com-puter-assisted review and how it can helpyou in the discovery process.

All of the technological advances havemade lawyers more available, and alsomade us more responsive. But, theseadvances also have created an enormousamount of data that must be siftedthrough in many litigations. I hope afterreading this issue you will have acquiredsome knowledge and feel better equippedto practice in your field using ever-chang-ing technology to which the legal com-munity has access today.

Tweet me @NYCLAPres and share howyou are using technology and what youwould like to learn about it.

Stewart D. AaronPresidentNewYork County Lawyers’Association

(See Ethical eDiscovery on Page 5)

NEW YORK

COUNTY LAWYER

Stewart D. AaronPresident

Sophia J GianacoplosExecutive Director

Toni ValentiDirector of Marketing andMembership Development

Ariella GreenbaumEditor

Senior Communications andSocial Media Manager

Page 4: New York County Lawyer-September 2012

This September the CLE Institute has adiverse curriculum of programs – fromtechnology to skill building to ethics tosubstantive areas of the law.

Featured CoursesA Lawyers Guide to Engaging LegalProfessionals and LeveragingTechnology to Meet Their EthicalObligations — Thursday, September 6,2012; 6 – 8:00 p.m., co-sponsored byNYCLA’s Ethics InstituteLawyers are faced with strict ethical standardsthat they must comply with. To ease their bur-den, lawyers turn to legal professionals, andmore and more are implementing technologi-cal solutions to help. Demonstrations of tech-nological advances that directly assist inmeeting attorneys’professional obligationswill be interspersed with the panel discussion.

Recent Cases Dealing with Cyberlaw:Stored Communications Act, Civil andGovernment Subpoenas, e-Discoveryand Best Practices – Wednesday,September 13, 2012; 5:30– 9 p.m., co-sponsored by NYCLA’s CyberlawCommitteeJoin us for a look at recent cases focusing onthe fast changing area of Cyberlaw, including• Privacy rights under the StoredCommunications Act, which addressesvoluntary and compelled disclosure of“stored wire and electronic communi-cations and transactional records” heldby third-party internet serviceproviders (ISPs),

• Civil and government subpoenas• e-Discovery methods and best prac-tices in the area

10 Pet Peeves of In-House Counsel:What In-House Counsel Wants OutsideCounsel to Know — Monday,September 24, 2012; 6:15 – 9 p.m., co-sponsored by NYCLA’s In-house/OutsideCounsel CommitteeJoin us for a networking reception to min-gle with panelists, Committee membersand attendees and a frank discussion ofwhat in-house counsel are really seekingfrom their outside lawyers.• Understand the 10 pet peeves of in-house counsel

• How outside lawyers can work collab-oratively with their outside counter-parts; and

• Why some lawyers and firms continual-ly get repeat engagements, while otherfirms don’t

Lawyers and Accountants – AnInterdisciplinary Dialogue: Issues andUnderstandingsFriday, September 28, 2012; 9 a.m.– 4p.m., co-sponsored by NYCLA’s EthicsInstituteWhen lawyers and accountants areinvolved in overlapping engagements,legal and accounting issues can becomeintertwined, leading to misunderstandingsabout the roles and responsibilities ofeach professional. During the multi-disci-pline program learn about:• The role of the accounting expert andconsultant

• Mixed accounting and legal issues• Corporate governance, audit commit-tees and auditor independence

• Accounting standards of the SECand FASB germane to both profes-sionals

• Professional malpractice and profes-sional liability insurance

• Keynote speaker: Claudius Modesti,Director of Enforcement, PAOB

SeptemberCourse List

2nd Annual Review of Fashion LawWednesday, September 5, 2012; 6-9 p.m.3 MCLE Credits: 3 Professional Practice;Transitional and Non-transitional(also NJ)

A Lawyers Guide to Engaging LegalProfessionals and LeveragingTechnology to Meet Their EthicalObligationsThursday, September 6, 2012; 6-8 p.m.2 MCLE Credits; 2 Ethics; Transitionaland Non-transitional (also NJ)

Stress Management for LawyersMonday, September 10,2012; 6:30-8:30 p.m.2 MCLE Credits; 2 Skills; Transitionaland Non-transitional (Also NJ)

New York City Energy Laws andRegulations Update 2012Wednesday, September 12, 2012; 9 a.m-12:30 p.m.3.5 MCLE Credits: 3.5 ProfessionalPractice; Transitional and Non-transitional

Bridge the Gap: Four Evening ProgramConsecutive Thursdays Sept. 13, 20, 27;Wednesday, Oct. 3, 2012; 5:30 p.m.-9 p.m.16 MCLE credits: 3 Ethics; 7 PP/LPM; 6Skills; Transitional and Non-transitional

Constitutional Interpretation and Race2012:AReview of Constitutional Decisionsand Their Impact onAsians, Blacks,NativeAmericans and Other RacesWednesday, September 19, 2012; 6-8:05 p.m.2.5 MCLE Credits; 1 Ethics; 1 PP;Transitional and Non-transitional (also NJ)

Recent Cases Dealing with Cyberlaw:Stored Communications Act, Civil andGovernment Subpoenas, e-Discoveryand Best PracticesWednesday, September 13, 2012; 5:30-9 p.m.4 MCLE Credits: 3 PP; 1 Skills (also NJ)

Myths of Lawyering DebunkedThursday, Sept. 20, 2012; 5:30-9 p.m.4 MCLE Credits: 1.5 Ethics; 1.5PP/LPM; 1 Skills; Transitional and Non-transitional (also NJ)

10 Pet Peeves of In-House Counsel:What In-House Counsel Wants TheirOutside Counsel to KnowMonday, September 24, 2012; 6:15-9 p.m.2 MCLE Credits: 2 PP; Transitional andNon-transitional (also NJ)

Overview of e-Discovery; From Lunchto ClientThursday, September 27, 2012; 5:30-9 p.m.4 MCLE Credits: 2 PP; 2 Skills

Lawyers and Accountants – AnInterdisciplinary Dialogue: Issues andUnderstandingsFriday, September 28, 2012; 9 a.m.-4 p.m.6 MCLE Credits: 2.5 Ethics; 2.5 PP; 1Skills; Transitional and Non-transitional

September 2012 / The New York County Lawyer4

Back to School at the CLE Institute

CLE INSTITUTE

SAVE THE DATEEffective Compliance Tools forCross-Border RegulationsMonday, October 15, 2012; 9 a.m.-7 p.m.

NYCLA’s CLE Institute nowan Accredited Provider in NewJerseyNew York County Lawyers’Association’s CLE Institute iscurrently certified as anAccredited Provider of continu-ing legal education in the StateNew Jersey. Courses qualifyingfor CLE credit in New Jerseywill be so designated on theNYCLAwebsite. Be sure toconsult www.nycla.org for pro-gram details and programlocations.Please note that TuitionAssistance is available for qual-ified attorneys for live programsoffered by the CLE Institute.Check our website atwww.nycla.org for more infor-mation and how to apply forTuition Assistance. Check ourwebsite for course details, fac-ulty, complete program descrip-tions and pricing.Be sure to check our website fora complete listing of programs.

Page 5: New York County Lawyer-September 2012

September 2012 / The New York County Lawyer 5

Ethics HotlineThe Committee on Professional Ethicsaccepts both written and telephoneinquiries on ethics matters and providesadvisory opinions. For additional infor-mation, call the members listed below.

September 1-15Malvina Nathanson212-608-6771

September 16-30Barry Temkin212-804-4221

October 1-15Ellen Yaroshefsky212-790-0386

October 16-31Greg LeDonne212-335-9152

Please Note: Assignments are subjectto change.

Questions to the Hotline are limited toan inquiring attorney’s prospective con-duct. The Hotline does not answerquestions regarding past conduct, theconduct of other attorneys, questionsthat are being litigated or before a dis-ciplinary committee or ethics commit-tee, or questions of law. This notationshall not be construed to contain allHotline guidelines. For a full discussionof Ethics Hotline guidelines, please seethe article below, “Guidelines onNYCLA’s Ethics Hotline,” published inthe September 2006 issue of New YorkCounty Lawyer.

come of age in the computer era.”7Presumably, younger attorneys haveeven less of an excuse.

Ethical rules will continue to figureinto the reasoning of some courts inpenalizing uncooperative conduct. Forinstance, one judge cited generally toattorney codes of conduct in rulingthat a party that responds to e-discov-ery production requests with nonspe-cific, boilerplate objections, waivesthose objections because the objectingparty could have voiced its concernsabout the burden or cost of therequests to the court or the requestingparty. 8 Had the producing party’sconcerns been reasonable, it shouldhave been knowledgeable enough toraise them. Such a penalty signals thatwhen a party fails to engage coopera-tively in the e-discovery process,whether due to ineptness or obsti-nance, a court interested in preservingits integrity will design an appropriatepenalty. And when a party is penal-ized, by extension, his/her inept orobstinate counsel is penalized as well.

Aaron Esty, Esq., a NYCLA memberand a graduate of the University ofVirginia School of Law, currentlyworks on federal human rights litiga-tion. He has also worked as a contractattorney and in litigation support.

Footnotes:1 The Sedona Conference Cooperation

Proclamation, (July 2008),https://thesedonaconference.org/cooperation-proclamation

2 US Bank NA v. GreenPoint Mtge.Funding, Inc., 2012 NY Slip Op1515 (N.Y. App. Div. Feb. 28. 2012).

3 See Wells v. Xpedx, No. 8:05-CV-2193-T-EAJ, 2007 WL 1200955(M.D.Fla. Apr. 23, 2007).

4 See Fed. Deposit Ins. Corp. v. Malik,No. 09-CV-4805 (E.D.N.Y. Mar. 26,2012).

5 DeGeer v. Gillis, No. 09 C 6974, 2010

WL 5096563 (N.D. Ill. Dec. 8, 2010).6 Peter Kiewit Sons’, Inc. v. WallStreet Equity Group, Inc., No.8:10CV365, 2012 WL 1852048 (D.Neb. May 18, 2012)

7 William A. Gross Const. Associates,Inc. v. American Mfrs. Mut. Ins. Co.,256 F.R.D. 134, 136 (S.D.N.Y.2009).

8 Mancia v. Mayflower Textile Servs.Co., No. 1:08-CV-00273, at *26-27(D.Md. Oct. 15, 2008)

Ethical eDiscovery(Continued From Page 3)

CLE INSTITUTE

Page 6: New York County Lawyer-September 2012

September 2012 / The New York County Lawyer6

Dear Friends:

When I was in law school, fax machineswere considered high tech and legalresearch involved paging through books.Today’s lawyer, of course, needs access tomultiple electronic databases, rangingfrom basic legal collections, such as thoseoffered by Lexis and Westlaw, to special-ized subscriptions like Bloomberg,Congressional Universe, and Legaltrac.While these services are powerful and con-venient, they are not cheap, particularly forsolo practitioners and lawyers at small lawfirms who may only need them occasion-ally. That’s where NYCLA comes in. Ourlibrary offers sophisticated electronicresearch capability to all NYCLA mem-bers—at no cost—through newly installed,state-of-the-art computers and ports. If youlack confidence in using these products,NYCLA offers frequent CLE coursesdesigned to bring you up to speed quickly,including ten separate programs inSeptember 2012 covering electronicresearch for both litigation and transaction-al purposes. Also on September’s CLE cal-endar: leveraging technology to meet yourethical obligations; privacy rights underthe Stored Communications Act; and e-fil-ing in the U.S. Bankruptcy Courts.

In addition to providing technology andtraining, NYCLA’s professional librarystaff can assist members with more eso-teric research projects, involving bothspecialized electronic databases and, inmany cases, NYCLA’s unmatched histor-ical collection. NYCLA’s librarians canalso help you gain access to no-cost elec-tronic databases from your home oroffice and train you in their use.

Unfortunately, your dues do not cover allof NYCLA’s programs and services. Wedepend on your contributions (made tothe NYCLA Foundation, which is recog-nized by the IRS as a 501(c)(3) organiza-tion) to carry out the programs that make

us proud to be members of NYCLA. Youcan make donations—in any amount youchoose—simply by going towww.nycla.org and clicking on “Givingto NYCLA.” Those of you who went tolaw school when I did (or who just likepens and paper) can also mail a check,payable to “NYCLA Foundation,” toNYCLA Foundation, 14 Vesey Street,NewYork, NY 10007. We are gratefulfor every contribution, and are pleased tosay “thank you” with a selection ofDVDs, books, prints, and other giftsdescribed on our web site. Since theNYCLA Foundation is recognized by theIRS as a 501(c)(3) organization, gifts aredeductible to the extent provided by law.

NYCLA needs both your support andyour ideas. Please do not hesitate to con-tact me with suggestions for fundraisingor related topics. You can reach me [email protected].

Sincerely,

Barbara MosesPresident of the NYCLA Foundation

M E S S A G E F R O M B A R B A R A M O S E SP R E S I D E N T O F T H E N Y C L A F O U N D A T I O N

Page 7: New York County Lawyer-September 2012

September 2012 / The New York County Lawyer 7

By Stewart D. Aaron, Esq.

The eleven-volume Third Edition ofBusiness and Commercial Litigation inFederal Courts, edited by Robert L.Haig, is impressive not only for its com-prehensiveness, but also for its depth ofcontent and analysis. The SecondEdition, which contained 96 chapterscomprising eight volumes, already wasregarded as a very thorough treatment ofthe procedural and substantive aspects offederal court practice. The Third Editionhas taken the treatise to yet another level,by the addition of 34 new chapters con-cerning topics that will be of interest tothe federal court practitioner.

Among the 34 new chapters is Chapter10, “Comparison with CommercialLitigation in State Courts,” which isauthored by Daniel Reidy. This chapterprovides helpful insights into the deci-sion, as a plaintiff, whether to file in stateor federal court, or as a defendant,whether to remove to federal court,assuming the requisite jurisdictional pred-icates are present. The chapter also con-tains a practice checklist of things to con-sider in deciding your choice of forum.

Chapter 69, “Regulatory Litigation with theSEC,” authored by Keith Miller, is a usefultool for federal court practitioners who are

not accustomed to litigation against theU.S. Securities and Exchange Commission(SEC). The chapter addresses strategicissues in litigating against the SEC and alsocontains a discussion of unique defensesthat exist in this type of litigation.

Ted Wells and Roberta Kaplan in Chapter113, “Interplay Between CommercialLitigation and Criminal Proceedings,”bring their vast experience to bear on aknotty topic faced by civil litigators whooften lack a suitable background in crimi-nal practice. Among other issues, theauthors address attorney-client privilegeconsiderations and the Fifth Amendment.They also provide a valuable case studyof what transpired in the parallel civiland criminal litigation related toWorldCom that provides a contextualframework for many of the issues dis-cussed in their chapter.

The chapters in the Third Edition areauthored by very experienced litigators,as well as 22 distinguished judges. Thesubstantive law chapters provide anexcellent start to any research project in aparticular area of law. The authors havedone extensive case law and otherresearch that provides the underpinningfor their cogent analyses.

The procedural chapters provide a unique

resource regarding the rules and practicesin the federal courts. Since the authorsare experienced practitioners and mem-bers of the judiciary, the procedures areput in proper context and are presentedwith an eye toward strategic issues thatneed to be addressed.

Any law library collection will beenhanced by a comprehensive treatisethat is authored by leading judges andlawyers, and that provides both aresearch tool and strategic guidance. TheThird Edition of Business andCommercial Litigation in Federal Courtsis just such a treatise.

Stewart Aaron, Esq., President of theNew York County Lawyers’Association,past chair of NYCLA’s Federal CourtsCommittee, is a partner in the law firm ofArnold & Porter LLP, where he serves ashead of its New York office. Mr. Aaronhandles commercial and corporate litiga-tion in state and federal courts, mostly inNew York and is a frequent CLE lecturerat NYCLA and elsewhere on litigation infederal court, and author of a chaptertitled “Ethical Issues in CommercialLitigation” in Commercial Litigation inNew York State Courts, Third Edition, theNew York state court counterpart to thefederal court treatise that is the subject ofthis book review.

Business and Commercial Litigation in Federal Courts, 3rd edition,edited by Robert L. Haig (published by West)

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Page 8: New York County Lawyer-September 2012

September 2012 / The New York County Lawyer8

At the Federal Courts Committee’s Summer Party on June 18 atBattery Gardens Restaurant in Battery Park, NYCLA Committeemembers celebrated the work the group accomplished over the pastyear and honored Thomas Marino, Partner at Dunnington, Bartholow& Miller LLP, with the Committee’s DavidY. Hinshaw Award for hisconspicuous contributions to the Committee.

RECENT EVENTSNYCLA Civil Court Practice Section DinnerHonors Judges and Court Personnel

At NYCLA’s Civil Court Practice Section Annual Dinner onWednesday, June 20 at SPQR, Hon. Fern A. Fisher (bottom row, cen-ter), Deputy Chief Administrative Judge for the NewYork City Courtspresented awards honoring Hon. Martin Schoenfeld (bottom row,left), Justice, Supreme Court Appellate Term, First Department; Hon.Pam Jackman-Brown (bottom row, second from left), Justice,Supreme Court, Queens County; Hon. Ernest Cavallo (bottom row,second from right),Judicial HearingOfficer; and CarolAlt (bottom row,right), Chief Clerk,Civil Court of theCity of NewYork.Fisher and the awardrecipients werejoined by AdrianZuckerman (stand-ing, left), Event Co-Chair; Barbara Moses (standing, second from left), NYCLAPresident-Elect; Robert D. Goldstein (standing, third from left), EventCo-Chair; Hon. Jean Schneider (third from right), Supervising Judge,Housing Court, NewYork County; Hon. David Cohen (standing, sec-ond from right), Civil Court Practice Section Chair; and RobertSilversmith (standing, right), Event Co-Chair.

Hon. Joan Madden, Supreme Court, NewYork County, shares her insights on how todeal with ethical issues in the field of lawwith summer associates and legal interns atNYCLA’s Lunch with a Judge program onJuly 24.

NYCLA President Stewart Aaronintroduces himself to interns fromJudge Ling-Cohan’s office duringNYCLA’s Lunch with a Judge net-working and educational programon July 31. (Left to right) Hon.Doris Ling-Cohan, SupremeCourt, NewYork County; FawnLee; Jessika Wong; and KatherineCoussa.

Summer associates andlegal interns discuss careeroptions with Hon. DorisLing-Cohan, SupremeCourt, NewYork Countyprior to the presentation atNYCLA’s Lunch with aJudge networking andeducational program onJuly 31.

Hon. Loretta A. Preska, Chief Judge, United StatesDistrict Court, Southern District of New York (left),and Hon. Helen Freedman, Associate Justice,Supreme Court Appellate Division, First Department(right) pose together after discussing appropriatecourtroom behavior with a room full of summerassociates and legal interns at NYCLA’s “Lunchwith a Judge” networking and educational programon July 10.

Daniel K. Wiig (far left), Chair ofthe Young Lawyers’ Section; Hon.Richard F. Braun (second fromleft), Supreme Court, NewYorkCounty; and Lew Tesser, NYCLABoard of Directors Vice President(right) listen as Hon. Shirley WernerKornreich, Supreme Court, NewYork County, explains to summerassociates and legal interns in atten-dance how to prepare to try a caseat NYCLA’s Lunch with a Judgeprogram on July 17.

NYCLA Hosts Summer Series for Law StudentsFor the past two decades, NYCLA has held its annual “Lunch with a Judge” networking andeducational program to give summer associates and legal interns the opportunity to have facetime with some of the most prestigious judges in NewYork. This year, it was held everyTuesday in July, and featured topics that included: appropriate courtroom behavior, how to crossexamine a witness, ethical issues for young lawyers, and career paths.

Federal Courts CommitteeCelebrates at Summer Party

Marino (center, left), is congratulated byemployees from his firm, Eva Adaszko(right of Marino); Luke McGrath (left,front); Louis Teitel (left, center); AlbertLingelbach (left, back); Sam Blaustein(right, back);George Gowen (right, cen-ter); and Joseph Michaels (right, front).

David Hinshaw(left),former long-term sec-retary of NYCLA’sFederal CourtsCommittee for whomthe award is named,poses with Marino.

On June 28, 2012, a reception was held at Arnold & Porter’s NewYork office for the Hon. Harold Baer Jr. and Dr. Suzanne BaerMinority Judicial Internship Program. Established in 1989, the pro-gram serves to provide law students with an opportunity to spendeight weeksworking with ajudge that theywere speciallymatched with.To celebratethe success ofthe program,current andformer internsalong withNYCLA lead-ership attendedthe reception.

Back row left to right: Hon. Debra James, participating judge; formerintern Queenie Paniagua; Co-chair of the Committee on Minoritiesand LawAsha Smith; Program co-founders, Hon. Harold Baer andDr. Suzanne Baer; NYCLA President Stewart D. Aaron; and formerintern Kevann Gardner. Front row, left to right: interns KristenRamos; Junie Chang; Maria Dyson; Carolyn Fahury; and BedelTiscaveno; along withformer intern Francisco Pardo.

Past and Present Interns Meet and Greet

Page 9: New York County Lawyer-September 2012

September 2012 / The New York County Lawyer 9

UPCOMING EVENTS

Events CalendarAll events, unless otherwise noted, will beheld at NYCLA Home of Law, 14 VeseyStreet. Visit the Association’s website,nycla.org for more details, schedulechanges and additions, and to R.S.V.P. forevents, which are subject to change.

SeptemberSecond Annual Law Student Receptionand Mentor for a Day AuctionWednesday, September 5 - 6:30 p.m.Join the Young Lawyers’ Section for anevening of food, drink, networking, andfun! Law students, “bid” auction-style(with fake money) on a mentor for thechance to “shadow” a lawyer or a judgefor a day and make a valuable connection,at no cost to you. An opportunity that nolaw student should miss! Take advantageof complimentary event registration now.

Public Service Awards and ReceptionWednesday, September 12 – 6 p.m.Since 1990, NYCLA’s Committee onPublic Service Awards has annually pre-

sented its Public Service Awards to honorlawyers in the public sector who have dis-tinguished themselves as role models,innovators and problem solvers of com-plex legal issues. The Awards recognizethe efforts of lawyers who dedicate them-selves to public service, but whoseachievements are not often publiclyacknowledged.

Legal Counseling Project-Part IWednesday, September 12, 2012 – 6 p.m.NYCLA members in good standing canvolunteer to provide counseling to clientsseeking advice in the areas of family law,consumer bankruptcy law, landlord/ten-ant law, and employment law at ourLegal Counseling Project evening clinics.No representation of any kind is under-taken. You may be asked to review docu-ments, answer questions, discuss areas ofconcern that the client should be awareof when entering into certain agreements,point out various methods whereby theclient can correct a problem or seekappropriate assistance and direction.

Mentors, who are experts in the fourareas, are available by phone on eachclinic night to assist the volunteer attor-neys. You must be admitted to the NewYork bar for at least two years, have oneyear of legal practice experience andattend both training sessions-Wednesday,September 12 and Wednesday, September19. You will be covered under NYCLA’smalpractice insurance policy. You mustcommit to counsel clients one night permonth from October 2012 through June2013. Six (6) CLE credits will be award-ed upon completion of the commitment.To register or for further information, callLois Davis, director of Pro BonoPrograms, at 212-267-6646, ext. 217 oremail [email protected].

In Chambers with Hon. KarlaMoskowitzThursday, September 27 - 12:30-1:30 p.m.The Young Lawyers’ Section presents, “InChambers” with Hon. Karla Moskowitz,Associate Justice, Appellate Division,First Department

OctoberNanette Dembitz Lecture: The Close toHome InitiativeThursday, October 4 - 6 p.m.Join NYCLA’s Family Court and ChildWelfare Committee for the annualNanette Dembitz Lecture, “The Close toHome Initiative and its Effects on NewYork City’s Juvenile Justice System.”Speakers: Ronald Richter, Commissionerof the Administration for Children’sServices; Vincent N. Schiraldi,Commissioner of the NYC Department ofProbation; Honorable Monica Drinane,Supervising Judge of Bronx CountyFamily Court; Tamara Steckler, Attorney-in-Charge, The Legal Aid Society -Juvenile Rights Practice; MichaelCorriero, Executive Director and Founderof the NewYork Center for JuvenileJustice.Moderator: Stephanie Gendell,Associate Executive Director for Policyand Public Affairs, Citizens Committeefor Children.

NYCLA Honors Public Sector AttorneysUnited States Attorney for S.D.N.Y. to Keynote Public Service Awards Reception

OnWednesday, September 12 at 6 p.m.,the NewYork County Lawyers’Association(NYCLA) will hold its 22ndAnnualPublic Service Awards Reception.Chaired by former NYCLAPresident,Catherine A. Christian, and held at theHome of Law, 14 Vesey Street, the AwardsReception will honor public sector attorneysand will feature keynote remarks by PreetBharara, United States Attorney for theSouthern District of NewYork.

Nominated by President Barack Obamaand unanimously confirmed by the U.S.Senate in 2009, as U.S. Attorney, Mr.Bharara oversees the investigation and lit-igation of all criminal and civil casesbrought on behalf of the United States inthe Southern District of New York. Hesupervises an office of more than 220Assistant U.S. Attorneys, who handle ahigh volume of cases that include domes-tic and international terrorism, narcoticsand arms trafficking, white collar crime,

public corruption, gang violence, organ-ized crime, and civil rights violations.

Since 1990, NYCLA has annually present-ed its Public Service Awards to honorlawyers in the public sector who have dis-tinguished themselves as role models, inno-vators, and problem solvers of complexlegal issues. The Awards recognize theefforts of lawyers who dedicate themselvesto public service, but whose achievementsare not often publicly acknowledged.

The 2012 award recipients:

• Jane Azia, Bureau Chief, Bureau ofConsumer Frauds and Protection, Officeof the New York State Attorney General

• Carolyn Coffey, Supervising Attorney,Consumer Rights Project, MFY LegalServices

• Kevin Egan, Principal Legal Adviser,

Statewide Electronic Filing Program,Supreme Court, Civil Branch, NewYork County

• Abigail Everett, Senior SupervisingAttorney, Center for Appellate Litigation

• Elie Honig, Assistant United StatesAttorney, Criminal Division, U.S.Attorney’s Office, SouthernDistrict of New York

• Jessica Rose, Director, Community andEconomic Development Unit, BrooklynLegal Services Corporation A, LegalServices NYC

• Gail Rubin, Division Chief,Affirmative Litigation Division, NewYork City Law Department

Also at the Awards Reception, NYCLA’sCriminal Justice Section, chaired by KeithPreet Bharara, United States Attorney for

the Southern District of New York (See Public Sector Attorneys on page 13)

(See Events Calendar on page 13)

Page 10: New York County Lawyer-September 2012

September 2012 / The New York County Lawyer10

Veterans deserve our thanks and supportfor serving our country and this includesour support as members of the legal pro-fession. Don’t wait for Veterans Day tooffer your assistance—check out thebelow websites to read how you can helpveterans using your legal expertise.

Veterans Law Resourceshttp://www.veteranslawlibrary.com/brief_overview.htmlA comprehensive collection of materialsrelating to the Veterans BenefitsAdjudication process.

Veterans Law Reviewhttp://www.bva.va.gov/VLR.asp

U.S. Department of Veterans Affairshttp://www.va.gov/

National Veterans Legal ServicesProgramhttp://www.nvlsp.orgThe National Veterans Legal ServicesProgram (NVLSP) has been the voice ofveterans’ rights for more than 25 years.NVLSP is an independent, nonprofit,

charitable organization acting to ensurethat the U.S. government honors the pactmade with our 25 million veterans. Itserves these forgotten men and womenthrough advocacy and training, education,publications, and pro bono litigation.NVLSP also recruits, trains, and assiststhousands of volunteer lawyers and veter-ans’ advocates.

Lawyers Serving Warriors: A Projectof the National Veterans Legal ServicesProgramhttp://www.lawyersservingwarriors.com/Free Representation to veterans with disabili-ty issues from all eras.

The Veterans Consortium Pro BonoProgram: Providing Representation toVeterans at the U.S. Court Appeals forVeterans Claimshttp://www.vetsprobono.org/Did you know that every veteran or survivorwho has taken an appeal to the U.S. Court ofAppeals forVeteran Claims, who has a legallycredible claim, and who wishes to be repre-sented by counsel, shall have competent rep-resentation? This program supports this right

by providing pro bono services to veterans.

Court of Appeals for Veterans ClaimsBar Associationhttp://www.cavcbar.net/The Court of Appeals for Veterans ClaimsBar Association was created to improveand facilitate the administration of justicein the United States Court of Appeals forVeterans Claims. Its goal is to provideinformation and services to the communi-ty for those individuals interested in facili-tating justice for veterans. It publishes theVeterans Law Journal http://www.cavc-bar.net/html/jour-nals.html

ABA Law Student Division. NationalVeterans Initiativehttp://www.americanbar.org/groups/law_students/initatives_awards/vets.htmlDuty Bound is a National VeteransService initiative of the ABA LawStudent Division. It connects law studentswith attorneys who provide free legalassistance on behalf of veterans and theirqualifying family members who have anappeal pending at the U.S. Court ofAppeals for Veterans Claims.

Veterans Legal Assistance ClinicThomas Jefferson School of Lawhttp://www.tjsl.edu/clinics/veterans-clinicThis is an example of a Law SchoolClinic offered at Thomas JeffersonSchool of Law in San Diego. There areno similar clinics in NewYork or in NewJersey at the present time.

American Association of Law Libraries– State, Court, County Law Libraries -SIS Handouthttp://www.aallnet.org/sis/sccll/docs/aall-handout.doc“Quick & Dirty Guide to Veterans’ Law”by Bernard J. Sussman, JD, MLS

New Book

Stichman, Barton and Ronald Abrams,Veterans Benefits Manual, 11th Edition,2011.Lexis Nexis: Charlottesville, VA.

Please send an email [email protected] if you would likemore information about this book.

LIBRARY NOTES

Digital Training Center CLE ProgramsUnless otherwise noted, courses are free

and open to the public

SeptemberWestlaw: BasicSeptember 12 – 10-11 a.m.1 MCLE Credit: 1 Skills; Transitional

Westlaw: Litigation Materials ResearchSeptember 12 - 11:30 a.m.-12:30 p.m.1 MCLE Credit: 1 Skills; Transitional

Using Bloomberglaw.com for LitigationSeptember 13 - 10-10:50 a.m.1 MCLE Credit: 1 Skills; TransitionalNY and NJ

Using Bloomberglaw.com for aCorporate Transactional PracticeSeptember 13 - 11:05 - 11:55 a.m.1 MCLE Credit: 1 Skills; TransitionalNY and NJ

Lexis: ISeptember 19 – 10:30 – 11:30 a.m.1 MCLE Credit: 1 Skills; TransitionalLexis: IISeptember 19 – 12-1 p.m.1 MCLE Credit: 1 Skills; Transitional

Lexis: Shepard’s Citation ServicesSeptember 19 - 1:30 - 2:30 p.m.1 MCLE Credit: 1 Skills; Transitional

Westlaw: IntermediateSeptember 25 - 1:30 - 2:30 p.m.1 MCLE Credit: 1 Skills; Transitional

Westlaw: Immigration LawSeptember 25 – 3 - 4 p.m.1 MCLE Credit: 1 Skills; Transitional

U.S. Bankruptcy Court Electronic CaseFiling SystemSeptember 26 – 10 a.m.-12:30 p.m.2.5 MCLE Credits: 2.5 Skills;Transitional, NY and NJMember: $65 Non-member: $85Non-legal Staff: $35

OctoberWestlaw: AdvancedOctober 10 – 10-11 a.m.1 MCLE Credit: 1 Skills; Transitional

Westlaw: Employment LawOctober 10 - 11:30 a.m.-12:30 p.m.1 MCLE Credit: 1 Skills; Transitional

Lexis: IOctober 11 – 11:00 a.m. – 12:90 p.m.1 MCLE Credit: 1 Skills; Transitional

Lexis: Research UpdateOctober 11 – 12:30 – 1:30 p.m.1 MCLE Credit: 1 Skills; Transitional

Lexis Expert Witness SearchingOctober 11 - 2:00 - 3:00 p.m.1 MCLE Credit: 1 Skills; Transitional

Using Bloomberglaw.com for LitigationOctober 18 – 10-10:50 a.m.1 MCLE Credit: 1 Skills; TransitionalNY and NJ

Using Bloomberglaw.com for aCorporate Transactional PracticeOctober 18 - 11:05 - 11:55 a.m.1 MCLE Credit: 1 Skills; TransitionalNY and NJ

U.S. Bankruptcy Court Electronic CaseFiling SystemOctober 24 – 10 a.m.-12:30 p.m.2.5 MCLE Credits: 2.5 Skills;Transitional, NY and NJMember: $65 Non-member: $85Non-legal Staff: $35

Westlaw: BasicOctober 30 - 1:30 - 2:30 p.m.1 MCLE Credit: 1 Skills; Transitional

Westlaw: Criminal LawOctober 30 – 3 - 4 p.m.1 MCLE Credit: 1 Skills; Transitional

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September 2012 / The New York County Lawyer 11

By Alexander Goldman

Federal Court system

There is no Internet access in Federalcourts in New York City. Rule 53 of theFederal Rules of Criminal Procedure(available at http://www.law.cornell.edu/rules/frcrmp/rule_53) is understood bymany courts to prohibit such access inthe courtroom. The rule states, “Exceptas otherwise provided by a statute orthese rules, the court must not permit thetaking of photographs in the courtroomduring judicial proceedings or the broad-casting of judicial proceedings from thecourtroom.”

The 2002 committee notes to the ruleshow that although the word “radio” wasdeleted from the rule, audio-only broad-casting is also prohibited. The notes citeUnited States v. McVeigh, 931 F. Supp.753 (D. Colo. 1996), prohibiting therelease of tape recordings of proceed-ings. The defendant in McVeigh is betterknown as the “Oklahoma City bomber”for his fertilizer bomb attack on a federalbuilding. The press wanted recordings ofthe famous proceedings for its own use.The court initially permitted this, byextending the speaker system to a pressroom where the media could obtainrecordings. The court later barred thepractice, ruling, “[u]pon reflection, it isthis court’s conclusion that the readyaccess to the sound recordings hasresulted in the functional equivalent of abroadcast of the court proceedings inviolation of Rule 53.” McVeigh, 931 F.Supp. at 755.

The Southern District here in New Yorkhas interpreted the rule as prohibitingInternet access in the court room, accord-ing to Stephanie Cirkovich, PublicInformation Officer for the United StatesDistrict Court for the Southern District.The Eastern District appears to haveinterpreted Rule 53 in the same way, asthe local rules show (the Local Rules ofthe United States District Courts for theSouthern and Eastern Districts of NewYork are available at http://www.nyed.us-courts.gov/sites/default/files/local_rules/localrules.pdf. Local Civil Rule 1.8 barsrecording of any kind – unless the courtspecifically rules otherwise by adminis-trative order. The rule states, “Unlessauthorized to do so by an administrativeorder of each respective Court, no oneother than Court officials engaged in theconduct of Court business shall bringany camera, transmitter, receiver, record-ing device, cellular telephone, computeror other electronic device into any court-house.” The notes to the rule say thatsome courts may allow recordingdevices if, by custom, they have allowedthem in the past.

Unified New York State Court System

It should be no surprise that there is noInternet access in courtrooms of theUnified New York State Court System.

Even media coverage of judicial pro-ceedings is permitted only under the spe-cific and restrictive procedures describedin Part 131 of the Rules of the ChiefAdministrative Judge of the New YorkState Unified Court System (the rule isavailable at http://www.nycourts.gov/rules/chiefadmin/131.shtml). It controlsmedia coverage by requiring the press toapply for permission to cover the pro-ceedings, by permitting no more thantwo cameras at any time, by allowingcertain witnesses (such as minors) toobject to coverage, and through otherrestrictions.

Should There Be Internet Access inNew York City Courtrooms?

The rules on Internet access in the court-room vary by state. While the rules for-bid Internet access in New York court-rooms, local rules in other states permitsuch access in the courtroom. Somecommentators see Internet access as ameans to level the playing field in litiga-tion between solo practitioners on oneside and better financed larger law firmson the other side. “[A]dvances in tech-nology have made it easier for solo prac-titioners to present their cases in a waythat costs less money, allowing attorneysto devote more resources to what mattersmost: getting the best result for theirclients,” writes The Honorable LenoreR. Gelfman, Administrative Judge forthe Howard County Circuit Court inMaryland, in an article co-authored byher law clerks Darren Weiss and CarolynMech. 45 Maryland Bar Journal 43(May/June, 2012). If there is Internetaccess in the courtroom, the articlenotes, then practitioners can use digitalsources and can carry less paper.

While using the Internet to access Lexisand Nexis is not controversial, using it

to access social media during voir direin order to evaluate potential jurors is anongoing controversy across the UnitedStates. In a recent case in New Jersey, alower court barred one attorney fromusing the Internet during voire dire whenhis opponent said that the use of theInternet constituted an unfair advantage.Upon review, Appellate Division ruledthat the attorney who had brought hislaptop should be allowed to use it: “[t]he‘playing field’ was, in fact, already‘level’ because [I]nternet access wasopen to both counsel, even if only one ofthem chose to utilize it.” Carino v.Muenzen, No. L-0028-07, 2010 WL3448071 (N.J. Super. Ct. App. Div. Aug.30, 2010), cert. denied, 205 N.J. 100(2011), cited in “Juror Investigation: IsIn-Courtroom Internet Research GoingToo Far?,” 7 Wash. J. L. Tech. & Arts93, 99 (Fall, 2011). There is an exten-sive, ongoing debate on this issue, toodetailed to summarize here. Extremesuggestions include the use of “scientificjury techniques,” in-depth polling ofjurors that can predict their decisionswith the accuracy of an election pollster,which would eliminate the need forinvestigating jurors by using socialmedia. Collin P. Wedel, Note, TwelveAngry (And Stereotyped) Jurors: HowCourts can Use Scientific Jury Selectionto End Discriminatory PeremptoryChallenges, 7 Stan. J. Civ. Rts. & Civ.Liberties 293 (October, 2011).

Does social media use by jurors threatenthe legal process? Internet access canbreak four categories of rules: “(1) rulesthat prohibit juror information gathering,(2) rules that forbid jurors from makingconclusions of law, (3) rules that governthe secrecy and integrity of the delibera-tion process, and (4) rules that forbidimproper contact between jurors andoutside parties.” Caren Myers Morrison

(former Assistant U.S. Attorney,E.D.N.Y. 2001-06, currently AssistantProfessor at the Georgia State UniversityCollege of Law), Jury 2.0, 62 HastingsL.J. 1579, 1583 (July, 2011). The bestanswer may be a jury instruction thatexplains why it’s important that juriesnot use the Internet to converse with andobtain information from sources outsidethe courtroom:

We go to some great lengths tomake sure that all of the informa-tion or input you get about thiscase comes from people who walkinto this courtroom, swear to tellthe truth, sit in this chair, and saywhat they have to say in front ofthe prosecutor, in front of thedefendant, and in front of all ofyou. And we do that because that’sthe fair way to do it. If you getinformation, even comments,input from somebody else wherethe defendant can’t hear, or theprosecutor can’t hear what you’rehearing, or your fellow jurors,that’s not fair. That is not a fairway to decide a criminal charge inthis country. What’s fair is for youto decide this case only on whathappens inside this courtroom.

Video: Hon. Donald E. Shelton, “NoGoogling, No Texting” Jury InstructionVideo, Nat’l Ctr. for State Cts. (Sept.13, 2010, 11:42:45),http://www.ncsc.org/topics/jury/jury-selection-trial-and-deliberations/resource-guide.aspx (scroll down to“Jury Instructions” subheading) (lastvisited July 4, 2011), cited in Jury 2.0,62 Hastings L.J. at 1627-28. The judgetells jurors not to use the Internet andthen says:

So I have two ways I can do this. Ican lock you up—it’s calledsequestering, it’s a fancy word forlocking you up—during the courseof the trial, or I can have youpromise me that you will strictlyabide by my instructions duringthe trial, and not do any investiga-tions, not have any communica-tions about the case . . . . Willeach of you promise me that youwill follow those instructions?

Id. at 1628.

In conclusion, there are a number ofgood reasons why Internet is barred inthe courtrooms of New York City andtherefore it seems that Internet access inthe courtrooms will not be allowed inthe near future.

Alexander Goldman, a NYCLA andCyberspace Law Committee member, isa 2L at Brooklyn Law School. A formerInternet trade journalist, he is studyingthe law of contracts, corporations,telecommunications, and governmentregulation.

Internet Access in New York City Courts

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September 2012 / The New York County Lawyer12

The Pitfalls of Legal “Do-It Yourself” SitesBy Genan F. Zilka, Esq.

A friend wishing to start a businessapproached me several months ago, askingfor some legal advice. I advised her to thebest of my ability and offered to provideher with contacts for other lawyers whomight be able to help. “It’s okay,” she said.“I don’t think I’m going to hire a lawyer -I’ll just go to Nolo.com.” I’d never heardof Nolo.com. When I looked at theNolo.com website, I was disturbed by theoffers for “free legal information” on thesite’s homepage not only because of a fearthat such legal services might make livelawyers obsolete, but also because of aconcern for what would happen to non-lawyers who use these websites.

The focus of this article will be onLegalZoom.com and Nolo.com, simplybecause they are well known and pro-vide similar, but different, services.LegalZoom.com focuses primarily on pro-viding assistance with creating legal docu-ments and filing them with the appropriategovernment office (if necessary). AlthoughLegalZoom.com also provides “legalplans” where a customer can consult anattorney in a limited capacity for a flatmonthly fee, the focus of the website is toprovide assistance with legal documents.

Nolo.com began as a legal do it yourselfpublisher in 1971, and has since expandedto providing legal guidance to consumers.In addition to columns answering legal

questions, Nolo.com also provides soft-ware and online programs that assist con-sumers with filling out and filing legalforms. Nolo.com also provides a directoryof lawyers.

The growing popularity of these websiteshas led to concerns about not only aboutthe current path of the legal industry, butalso the effect these websites will haveon the consumer who chooses them, opt-ing to act as their own lawyers instead ofactually hiring a lawyer.

Both LegalZoom.com and Nolo.com havebeen the subject of lawsuits accusing themof the unlicensed practice of law.LegalZoom.com has been accused of theunlicensed practice of law in at least thestates of Ohio and Missouri, although inOhio, the action was dismissed after the sitebrought a motion to dismiss, and inMissouri, summary judgment was grantedin favor of it. Nolo.com was the subject of ahearing about the unlicensed practice of lawin Texas in 1998.1 The Texas legislaturethen amended Section 81.101 of the TexasGovernment Code to specifically state thatservices like Nolo.com were not consideredto be the unlicensed practice of law so longas the “products clearly and conspicuouslystate that the products are not a substitutefor the advice of an attorney.”2

LegalZoom.com was formed in part byRobert Shapiro, a noted attorney, in 1999 toprovide an “easy-to-use, online service that

helped people create their own legal docu-ments.”3 Documents are location specific,so a person seeking to form an LLC inNewYork will fill out a form that willcomply with NewYork law.

LegalZoom.com also offers services per-taining to wills, trusts, divorces, bankruptcyand the like. In addition to the legal docu-ment services, LegalZoom.com provides, itoffers articles about legal issues such as“What is an LLC,” “How to start theDivorce Process,” and “How to get copy-rights.” A disclaimer at the bottom of thehomepage states specifically that it is not alaw firm, and cannot “provide legal adviceand can only provide self-help services atyour specific direction; LegalZoom.comcannot provide any kind of advice, explana-tion, opinion, or recommendation to a con-sumer about possible legal rights, remedies,defenses, options, selection of forms orstrategies.” In addition to this, sinceLegalZoom.com does not represent that itis a law firm, it cannot notify a consumerthat he or she is doing something legallyinaccurate. ANew York Times article from2002 notes that the employees ofLegalZoom.com who review the final prod-uct are not attorneys and therefore mostlyreview the completed documents forspelling errors and inaccuracies, whileremaining silent about possible legalissues.4 Leaving such legal questions blankcan lead to later lawsuits or invalidations.In addition to this, other articles havetouched on potential problems that con-

sumers of LegalZoom.com may have. Forexample, although it may save moneyupfront, another New York Times articlepresents examples of people being forcedto litigate as a result of wills createdthrough these services, or other situationswhere heirs lost significant sums of moneyto taxes.5

Like LegalZoom.com, Nolo.com permitsconsumers to fill out and submit legalforms on the web, and create legal docu-ments, like wills. Unlike LegalZoom.com,though, Nolo.com does not represent that itchecks the completed forms for accuracy.Instead, Nolo.com simply offers step-by-step guidelines to facilitate completingthese forms. Nolo.com also touts its “FreeLegal Information and Solutions.”6 LikeWebMD, Nolo.com permits consumers to“self diagnose” their legal issues. WhileNolo.com refers consumer to attorneys whocan handle these legal issues, Nolo.comalso supplies enough information to make itthat a person reading one of these websitesbelieve that he or she may handle the legalissues themselves. For example, Nolo.compresents steps for filing for bankruptcy,which make the entire process seem simpleand something anyone could handle.Although a person does not need to hire alawyer to represent them in these proceed-ings, failing to hire a lawyer who may bet-ter represent this person’s interests, andwho may better know the intricacies andsubtleties of the practice area might end up

NYCLA In The NewsA roundup of recent national andlocal news stories featuring NYCLAand its members

Now that state courts are findingthemselves in the middle of the fightover stop-and-frisk, Inside City Hall’sErrol spoke with NYCLA’s PresidentStewart Aaron and its Criminal JusticeSection co-chair, Alison Wilkey, andother guests on why they think it’stime to lower the volume.NY1 NewsLegal Concerns of Stop-and-FriskDebateAugust 2, 2012

This article talks about NYCLA andother bar associations’ efforts toencourage the media to temper attacksof judges who have recently ruled instop and frisk cases. It mentions thatNYCLA wrote to both the Post andDaily News to protest the tone of thecriticism of the courts and mentionsthat Stewart Aaron, NYCLA’s presi-dent, said in a July 16 statement thatthe stop-and-frisk decisions had been“carefully crafted by thoughtfuljudges.” It quotes Aaron saying,“Judges have to make difficult callsbased on the record before them. Theycan’t take into account, ‘Oh gee, Iwonder how Mayor Bloomberg isgoing to react to this one; howCommissioner Kelly is going to reactto that one.’ They need to base deci-sions on facts and law and not be con-cerned what some newspapers are

going to say or what someone in theexecutive branch is going to say.”

New York Law JournalDefenders of Courts Urge Criticsof Rulings to Temper AttacksJuly 27, 2012

This article features a photo taken atNYCLA’s July 10 Lunch with a Judgeprogram and mentions that NYCLAhas scheduled a number of suchevents in July giving summer associ-ates and legal interns the opportunityto discuss the law with jurists.

New York Law JournalNYCLAHosts Lunch with a JudgeJuly 16, 2012

A letter to the editor of the DailyNews from Stewart Aaron regardingthe July 4 Op-Ed, Judges’ decisionthrowing out stop-and-frisk is a deathsentence for New York, was publishedby the newspaper.

New York Daily NewsLetter to the EditorJuly 7, 2012

A letter from NYCLA’s President,Stewart Aaron, appears in theJuly/August issue of this publicationand on its website. It focuses on work-life balance and how to achieve it.

The Metropolitan CorporateCounselLetter from the President of theNew York County Lawyers’AssociationJuly/August 2012

(See Do-it-yourself legal sites on Page 13)

Page 13: New York County Lawyer-September 2012

September 2012 / The New York County Lawyer 13

being more costly in the future.Websites like LegalZoom.com andNolo.com are dangerous because theyprovide what could be considered by aconsumer to be legal advice and legalservices, despite any statements to thecontrary. Even though these sites do notdirectly represent that they are providinglegal advice and legal services, they pro-vide enough information that a reason-able layperson might believe that he orshe does not need a lawyer. Althoughthese websites might force lawyers tobecome more competitive with theirfees, it is will be overwhelmingly diffi-cult for an attorney to be able to providewills, or incorporate a business for theamount charged by these websites.

Recently, publications like ConsumerReports have written about the potentialproblems with these websites, such as thepotential for an “unintended result,” espe-cially in the situation of wills.7 Theincreased availability of the Internet, aswell as the current economy will lead to anincreased use of these websites, opening itsusers to potential unintended liability. Thelong term implications of the increased useof these websites on consumers and on thelegal profession remains to be seen.

Genan F Zilkha, Esq., a NYCLA member,is an attorney practicing in New York.She focuses her practice on counselingindividuals and small businesses in theirlegal needs. She is a graduate ofFordham Law and was previously asso-ciated with Lawrence W. Rader, Esq.

Footnotes:1AMatter of Law: Texas vs. Nolo Press,Business Week Online, March 26, 1998

http://www.businessweek.com/bwdai-ly/dnflash/mar1998/nf80326b.htm2 SUBCHAPTER G. UNAUTHORIZEDPRACTICE OF LAW, § 81.101, TexasState Bar Act,http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.81.htm#81.1013 About Us, LegalZoom.com,http://www.LegalZoom.com.com/about-us4 Fred Bernstein, Being of Sound Mind,and a $55 Consultation, New YorkTimes, May 16, 2002(http://www.nytimes.com/2002/05/16/technology/being-of-sound-mind-and-a-55-consultation.html)5 Christine Larson, A Need for a Will?Often, There’s an Online Way, New YorkTimes, October 14, 2007http://www.nytimes.com/2007/10/14/business/yourmoney/14wills.html6 Free Legal Articles & FAQs, Nolo.com,http://www.nolo.com/legal-encyclopedia7 Legal DIYwebsites are no match for a proThey provide services for a fraction of whatyou’d pay a lawyer,Consumer ReportsMagazine, September 2012http://www.consumerreports.org/cro/maga-zine/2012/09/legal-diy-websites-are-no-match-for-a-pro/index.htm. See also Joan E.Lisante, Do-It-Yourself Legal Forms—Plus or Peril,Consumer Affairshttp://www.consumeraffairs.com/forms/use_forms.htmlWrite your own will? We test-ed 3 software products that claim to helpyou do it Last reviewed, ConsumerReports, July 2011,http://www.consumer-reports.org/cro/money/retirement-plan-ning/write-your-own-will/overview/index.htm

Dawn Kawamoto, DIY Legal Sites: AreYou the Only Lawyer You Need?, TheMotley Fool,March 20, 2012http://www.dailyfinance.com/2012/03/20/diy-legal-sites-are-you-the-only-lawyer-you-need/

Do-it-yourself legal sites(Continued From Page 12)

New York State’s Campaign AgainstSex Trafficking: What’sNext ConferenceFriday, October 5 - 9 a.m.–12:30 p.m.NYCLA is co-sponsoring this confer-ence. Fordham Law School, McNallyAmphitheatre, 140 West 62nd StreetHosted by the Feerick Center for SocialJustice of Fordham Law School2.5 CLE credits available free of charge

Current Trends and CareerDevelopment in ADRThursday, October 11 – 7 p.m.This Young Lawyers Section event willinclude the following panelists: Robert

B. Davidson, Executive Director, JAMSArbitration Practice; Kenneth L.Andrichik, Senior Vice President, ChiefCounsel and Director of Mediation andStrategy, FINRA Dispute Resolution;James E. Berger, Of. Counsel, PaulHastings; Hon. Betty Weinberg Ellerin,Special Counsel, Alston & Bird LLP.Event Chairs, Harold Rodriguez, Esq.and Anna Mitchell, Esq.

Federal Courts LuncheonWednesday, October 24 - 12 noonThe NYCLA Edward Weinfeld Awardfor Distinguished Contributions to theAdministration of Justice wil be present-ed to Judge Sidney H. Stein of the U.S.District Court for the S.D.N.Y. by JudgeRalph K. Winter, U.S. Court of Appealsfor the Second Circuit. Sponsored by theFederal Courts Committee.

Schmidt and Alison Wilkey, will recog-nize winners of its 2012 Public ServiceFellowship Essay Contest, newly admit-ted public sector attorneys working in thecriminal justice field carrying more than$30,000 in educational debt. The contestwinners, prosecutor and institutionaldefense attorneys practicing up to sevenyears, will be awarded cash stipends of atleast $2,000 to alleviate educational debt.

“Lawyers in the public sector use theirlegal expertise to better others and soci-ety,” says Christian. “Through thePublic Service Awards, NYCLA recog-nizes how wholeheartedly these indi-viduals devote themselves to variouscauses to in turn better society, honor-ing those who have gone above andbeyond.”

All members are invited to attend the22nd Annual Public Service AwardsReception. Visit nycla.org to R.S.V.P.for this special event.

Events calendar(Continued From Page 9)

Public Sector Attorneys(Continued From Page 9)

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Page 14: New York County Lawyer-September 2012

September 2012 / The New York County Lawyer14

By Monica Trombley, Esq.

Looking for a very funny book that willmake you nearly miss your subway trainduring the morning commute? Well, lookno further than “Hello Kitty Must Die”by Angela S. Choi. Ms. Choi is a formerBigLaw associate who decided to walkaway from the long hours and become awriter at the age of 30. Choi’s first forayinto the world of fiction will bring laughswhile providing an unvarnishedviewpoint of working in a large law firm.Fiona Yu, the 28-year-old main character,struggles to find a balance between whoshe wants to be and the pressures andexpectations of her traditional Chineseculture.

The book opens with Fiona deciding torebel against the ultimate “good girl”expectation and taking matters into herown hands, literally. Her attempt atrebellion, however, does not go asplanned. She seeks out specializedmedical attention and vows to pay thehigh price tag for a special kind ofsurgery just so she can defy this tradition.The specialist she meets with is noneother than her old friend from Catholic

school, Sean. Fiona recalls Sean as a rebeland a consistent troublemaker she bothadmires and is a little afraid of. He talksher out of getting the surgery and theyresume their friendship. Sean is the devilon Fiona’s shoulder who talks her intodoing the unspeakable and theunpredictable in order to serve her ownself-interests.

Sean also has a secret. His dirty littlesecret results in some good luck forFiona. Unemployment, a tyranical boss,unwelcome suitors: whatever the obstacleor enemy, Sean is always there to listenlike a good friend. After theseconversations, Fiona’s obstacles andproblems end up vanishing like blades ofgrass into a lawnmower. Recalling howthey first met, Fiona wonders if Sean isonce again fighting her bullies for herand taking care of them just like he tookcare of her first tormentor.

Fiona later takes a cue from Sean’splaybook to get out of her forcedengagement to Don, a young man from atraditional Chinese family that herparents claim she is engaged to despiteher protests to the contrary. Once again

taking matters into her own hands, sheseizes an opportunity and regains controlof her own destiny.

While Sean gets deeper and deeper intohis hobby, Fiona decides she wants out.These happy accidents start to leave Fionawith some strong pangs of conscience.Eventually, Fiona’s nagging consciencejust will not go away or shut up.

Ms. Choi gives a cynical, honest, andtruthful voice to young female lawyers.In the age of mounting attacks onwomen’s personal autonomy, Fiona is anunlikely hero for the childfree andanyone who is bucking mainstreamsociety’s expectations of them. This is nota book for the squeamish or those withdelicate sensibilities.

Monica Trombley, Esq., a NYCLA andEntertainment Intellectiual Property &Sports Section member, is the ProductionExecutive/In-House Counsel of One Wayor Another Productions LLC. A graduateof Quinnipac University School of Law,she also writes a humorous rant blogcalled “The Angry Redheaded Lawyer“(www.theangryredheadedlawyer.com).

“Hello Kitty Must Die”by Angela S. Choi

B O O K R E V I E W

ings on these sites are admissible.

Privacy settings relevant. In Dexter v.Dexter, 2007 Ohio App. LEXIS 2388, theappellate court found that a parent seek-ing custody could not claim an expecta-tion of privacy in “publicly accessible”writings on MySpace detailing her intentto commence using drugs after the cus-tody proceedings.

Privacy settings not relevant. InRomano v. Steelcase, Inc., 907 N.Y.S. 2d650 (2010), a New York court held that asocial networking user has no reasonableexpectation of privacy, notwithstandingher privacy settings, because the sites donot guarantee complete privacy. In thispersonal injury case, the court found thatbased on the publicly available informa-tion in Romano’s profile, it was reason-able to conclude that the private portionsof her profiles would contain more evi-dence that would be material and relevant.

In deciding whether to allow a party todiscover social network information,

courts will look at these factors: 1)whether the content is material and nec-essary to prove the case; 2) if there areother means to obtain the content; and 3)will the requesting party be at a disadvan-tage without accessing the content.

In a civil case, you can obtain information via:

• Request for production for specific doc-uments or content from party’s profile.

• Request the party’s log-on name andpassword in an interrogatory or deposition.

• Request court order providing for dis-closure and/or in camera review.

In Offenback v. L.M. Bowman, Inc.,2011 U.S. Dist, LEXIS 66432 (M.D. Pa.),a case in which Offenback was suing forinjuries sustained in an automobile acci-dent, the district court was asked toreview Offenback’s Facebook profile.The court found a posting aboutOffenback’s multi-state motorcycle trip,which was clearly relevant. The court didstate, however, that Offenback shouldhave produced the information withoutthe court being involved in the discoveryprocess. In Barnes v. CUS Nashville,Inc., 2010 WL 2265668 (M.D. Tenn.), thecourt went so far as to offer to provide an

in camera review by becoming Facebookfriends with the party in order to reviewtheir private content for relevancy.

Recently, a federal magistrate denied amotion to compel production of Facebookrecords in a personal injury case. InTompkins v. Detroit MetroAirport, 2012U.S. Dist. 5749 (E.D. Mich. January 18,2012), plaintiff Tompkins claimed backinjuries from a slip and fall at the airport.The airport argued that Tompkins might befaking her injuries, referencing photos fromher public Facebook pages and surveillancephotos showing her holding a small dog andpushing a grocery cart. The airport sought toreview Tompkins’ entire Facebook account.The district court found the request over-broad and the data not relevant, since push-ing a grocery cart would not be inconsistentwith Tompkins’ claims. The court said thathad the photos shown her golfing or liftingheavy packages, the airport would havestronger argument. Therefore, narrowly tai-lored discovery requests for social network-ing data are more likely to be approved bythe court.

Data obtained from social networkingwebsites continues to become moreessential to developing a parties’case. Production of that data, however,has become more burdensome for the

companies developing the technology.Facebook has recently made more infor-mation available to be downloaded by anindividual user. The new data provideseven greater historical information aboutFacebook users.

In summary, some courts have ruled thatusing Facebook, Twitter or other socialmedia platforms is fair game, since theyare part of the Internet: a public space.More recently, decisions regarding theadmissibility of eDiscovery are givingshape to new precedence:

• A broad request for information andunrestricted access to social media pro-files in an attempt to find evidencewhich can support (or destroy) a case isnot acceptable.

• A specific request for social mediadiscovery seeking relevant information,which is directly related to any allega-tions in question, is acceptable.

Joseph J. Bambara, Esq., a NYCLA andCyberspace Law Committee member, isIn House Counsel, and a VP of technolo-gy architecture at UCNY, Inc. He is agraduate of Brooklyn Law School. Youcan reach Joseph at [email protected] on Twitter @jbesquire7.

Social networking andeDiscovery(Continued From Page 1)

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September 2012 / The New York County Lawyer 15

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ogy satisfies the requirements of theirparticular state’s ethics rules. To date, BarAssociations in 11 states have issuedEthics Opinions opining that so long asan attorney uses “reasonable care” intheir selection and use of a particularcloud vendor, they have complied withtheir ethical obligations. Notably, noOpinions have analyzed the issue andfound an attorney’s use of the cloud to beinherently unethical.

Every attorney must conduct their owndue diligence before entrusting theirclient’s data to the cloud. While there isno accepted definition of the “reasonablecare” required, a good starting point forNew York lawyers is the New York StateBar Association’s Ethics Opinion 842,which offers three steps that an attorneymay take when evaluating a particularcloud service, which can be summarizedas: (1) ensuring that the provider has anenforceable obligation to preserve confi-dentiality; (2) investigating the provider’ssecurity measures; and (3) employingavailable technology to guard against rea-sonably foreseeable threats.

For those who understand the risks, andhow to manage them, there are a numberof different ways to incorporate cloudcomputing into your law firm or practice.Depending on the level of comfort andcommitment, an attorney can use one orall of the following options:

Cloud Based Law PracticeManagement. A number of companiesoffer full-service platforms designedspecifically to help lawyers manage(almost) every aspect of their practice. Fora monthly fee based on the number ofusers, these services provide integratedtools for organizing matters, calendaring,contacts, and billing. Many even offer cus-tom document and invoice assembly. Thegreatest advantage of these services,instead of desktop or local-server basedsoftware, is the ability to access all yourcase files securely from anywhere withInternet access, including your phone ortablet. Two of the most popular optionsare Rocket Matter(www.rocketmatter.com) and Clio(www.goclio.com). For those who prefer amore established name, LexisNexisoffers the well-reviewed Firm Manager(www.firmmanager.com).

File Synchronization and Backup.Services exist which not only backup yourimportant files to the cloud, but automati-cally synchronize perfectly up-to-date ver-sions of those files on as many computersas desired. This allows you to edit a docu-ment on your desktop, have it automaticallydownloaded to your laptop, and pull it up inCourt on your iPad. Most importantly,copies of all files are saved on theprovider’s servers—so they won’t be lost tocomputer or hard drive failures—as well ason your own machines, so you can accessand edit them even without Internet access.

Dropbox (www.dropbox.com) is thebiggest and best known provider. All filesstored on its servers are encrypted usingAES-256 level encryption, which they note“is the same encryption standard used bybanks.” It is not designed specifically forlawyers, and because it is the most popularprovider, the service has its own unique setadvantages and disadvantages. For exam-ple its size and popularity suggests that it’sfar less likely (by Internet standards) to goout of business, but also makes it a worth-while target for potential hackers. Notably,in July Dropbox informed its users of arecent security breach. It stated that therewas no unauthorized access to any user’sdocuments, but that a list of e-mailaddresses was taken, resulting in increasedspam reported by some users. The serviceresponded, saying that it has since “putadditional controls in place” to prevent afuture breach. For those who are uncom-fortable with Dropbox, Trend Micro offersSafe Sync for Business which providesmuch of the same functionality asDropbox, and comes with a 99.9% uptimeguarantee (www.safesync.com).

Data Backup. If you take nothing elsefrom this article, remember this — back-up your data! Hard drives fail; files arelost due to fire and flood, and withoutproper backup a client’s file can be irre-trievably lost. Although backing-up to aportable hard drive or local-server helps,cloud-based backup offers far greatersecurity and redundancy. The servicesdiscussed above which offer data syn-chronization and backup are excellentoptions, but for those who don’t need theadditional features or are uncomfortableusing these services for confidentialclient information, a dedicated backupservice may be a useful solution. Thereare many services, offering slightly dif-ferent features, including some of themore popular ones such as Mozy Pro(www.mozy.com/pro) and Jungle Disk(www.jungledisk.com).

This is far from an exhaustive list of cloudcomputing services and providers; otheroptions include everything from full-scalevirtual law firms to services designed tosimplify billing and time tracking. Theimportant thing to remember though, isthat with due diligence and reasonablecare, a lawyer can minimize their risk and

enjoy the benefits of the cloud.

William Aronin, Esq., a NYCLA andCyberspace Law Committee member, isan Associate with Schwartzapfel Lawyers,P.C. where he practices personal injury,disability and workers compensation. Heis a graduate of Brooklyn Law School.

Cloud computing(Continued From Page 1)

random. Most CAR experts use the 95percent confidence level, with an accom-panying margin of error of +/-2.5 percent.The key here for prong one defensibilityis that (a) both the confidence level andconfidence interval be agreed to by theparties and (b) a report is generated ateach phase of the CAR analytics processto document the manner in which sam-ples are drawn and coded by the software.

The second defensibility prong is aimedat satisfaction of Rules 1 and 26 of theFederal Rules of Civil Procedure. That is,“the burden or expense of [the] discovery[process must] not outweigh its likelybenefit”8 and assist in obtaining “the just,speedy and inexpensive” resolution of acase.9 Document intensive cases—inwhich traditional manual review is pro-hibitively costly, time consuming anderror prone—make prime candidates forpassing muster under this second defensi-bility prong. Consider the following datafrom a 2012 study conducted by theRAND Corporation:

• Computer-assisted review enablescase teams to identify at least asmany relevant documents as manualreview with almost the same level ofaccuracy.

• Computer-assisted review can cutattorney review time by as much as75 percent.

• Computer-assisted review canachieve an 80 percent cost savingsover traditional manual review.10

While these CAR statistics are impres-sive, the key to defensibility under thissecond prong is compiling detailed CARvs. manual review cost comparison data,relevancy effectiveness data, and esti-mated review time data.

In conclusion, the volume, complexity andvariety of today’s data is challenging the

legal industry to find new ways to defensi-bly manage discovery. It is important toapproach CAR defensibility in terms ofmethod reasonableness combined with arobust audit trail. Such a framework willenable parties to rapidly and accuratelyidentify relevant documents, completelyeliminate irrelevant documents, prioritizethe most relevant documents for review,achieve substantial cost savings, and passjudicial scrutiny.

Dino E. Medina, Esq., serves as DeputyGeneral Counsel of Complete DiscoverySource, Inc., a NYCLA benefitspartner. For more information aboutcomputer-assisted review technology andconsulting services, please contact Dinoat [email protected], 212-813-7042, or visit www.CDSLegal.com.

Footnotes:1 See Fed. R. Civ. P. 26(b)(1)2 Craig Ball, The DNA of Data, LawTechnology News, April, 2005.

3 Nicholas M. Pace & Laura Zakaras.Where the Money Goes: UnderstandingLitigant Expenditures for ProducingElectronic Discovery. Santa Monica,CA: RAND Corporation, 2012.http://www.rand.org/pubs/mono-graphs/MG1208.

4 Dean Gonsowski, E-Discovery Costs:Pay Now or Pay Later, InsideCounsel, May 23, 2012.

5 Maura R. Grossman & Gordon V.Cormack, Technology-Assisted Reviewin E-Discovery Can Be More Effectiveand More Efficient Than ExhaustiveManual Review, XVII Rich. J.L. &Tech. 11 (2011).

6 The Sedona Conference, The SedonaConference Commentary on AchievingQuality in the E-Discovery Process,10 SEDONA CONF. J. 299, 320(2009).

7 Alex Hoover, Top Ten Points onComputer Assisted Review,Association of Corporate Counsel,September 1, 2011.

8 FED. R. CIV. P. 1.9 FED. R. CIV. P. 26(b)(2)(C)(iii).10 See Pace & Zakaras, supra note 3.

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