Legalethics.com

This Ninth Circuit decision breaks no new ground, but does remind lawyers that in general there will be no immediate appeal of inadvertent production issues, because both there is no “final decision” and because as a general matter there is no “collateral order” in terms of Cohen. Truckstop.net LLC v. Sprint Corp., (9th Cir., No. 07-35123, 10/28/08). The lawyers perhaps should have tried mandamus…

There’s an article here about Gutman v. Levy, reportedly the first case in the Second Circuit entering default judgment for e-discovery abuse and e-spoliation. If you haven’t been involved in e-discovery battles, the case is an eye opening read, both in what it takes to uncover deletions and what-not, but also for the misconduct that effort uncovered here.

On November 7, the Law School will host the 9th annual Georgia Symposium on Professionalism and Ethics. The topic for this years symposium is “Ethics and professionalism in the Digital Age.” There will be presentations and panel discussions on e-discovery, the internet and lawyer marketing, and meta-data. The symposium will take place in the Law School Courtroom beginning at 9 a.m. on the 7th. The event is open to the public, and CLE credit will be available. For further information, contact professor Patrick Longan at (478) 301-2639 or longan_p [at sign] law.mercer.edu

A litigant used the “black out” feature in Acrobat to “redact” information, and learned that wouldn’t work… when the other side cut and pasted the document into Word and showed that important, relevant information had been deleted. A blog about it, with links to the case and what-not, is here.

There’s an article here.  Oh, and here.  Oh, and this one.

There’s a webpage, blockshopper.com that tracks who buys what property and for how much in certain upscale neighborhoods.  Some Jones Day lawyers bought property in  those neighborhoods, and that truthful, factual information was posted on the site, along with truthful factual links to the firm’s website, and truthful, factual links to the individuals’ bios on teh firm webpage. 

Jones Day filed this complaint for trademark infringement.   The sum of the alleged confusing and illegal conduct is using a link to the firm’s website and linking to the two lawyers’ bios who bought houses.

The New York State Bar Association concluded that lawyers could use gmail and comply with the duty of confidentiality despite the fact that email is ’scanned’ by Google to place contextual ads. The committee warned that this sort of unthinking, automated review was proper, but not human review. N.Y. St. B. Ass’n. Comm. Prof. Eth. Op. 820 (Feb. 8, 2008).

Nat’l Economic Research Assocs., Inc. v. Evans, LECG Corp., 21 Mass. L. Rptr. 337 (Mass. Super. Ct. Aug. 3, 2006) is a fascinating case in various ways, and just came to my attention. Apparently, when a user views mail on yahoo, it takes a screenshot of the mail which is stored on the hard drive. While it’s not as easy to later access as a temp file, apparently they reside on the hard drive. I couldn’t find the opinion on line, but it was on westlaw.

Anyone who uses public computers or employer-owned laptops to communicate “in confidence” should examine this issue. I’m not sure it’s accurate, but the court clearly stated that Yahoo, alone, left these ghost emails!

In Formal Opinion 2008-1 (July 2008), the Committee on Professional and Judicial Ethics of the Association of the Bar of the City of New York addressed various issues concerning the organization, delivery, and the ability to charge clients for delivery of electronic files after the end of a representation.  An earlier Wisconsin opinion on the same subject is here.

Colorado has addressed whether lawyers can review metadata sent by opposing counsel outside the context of discovery. The summary states:

A Sending Lawyer who transmits electronic documents or files has a duty to use reasonable care to guard against the disclosure of metadata containing Confidential Information. What constitutes reasonable care will depend on the facts and circumstances. The duty to provide competent representation requires a Sending Lawyer to ensure that he or she is reasonably informed about the types of metadata that may be included in an electronic document or file and the steps that can be taken to remove metadata if necessary. Within a law firm, a supervising lawyer has a duty to ensure that appropriate systems are in place so that the supervising lawyer, any subordinate lawyers, and any nonlawyer assistants are able to control the transmission of metadata.

A Receiving Lawyer who receives electronic documents or files generally may search for and review metadata. If a Receiving Lawyer knows or reasonably should know that the metadata contain or constitute Confidential Information, the Receiving Lawyer should assume that the Confidential Information was transmitted inadvertently, unless the Receiving Lawyer knows that confidentiality has been waived. The Receiving Lawyer must promptly notify the Sending Lawyer. Once the Receiving Lawyer has notified the Sending Lawyer, the lawyers may, as a matter of professionalism, discuss whether a waiver of privilege or confidentiality has occurred. In some instances, the lawyers may be able to agree on how to handle the matter. If this is not possible, then the Sending Lawyer or the Receiving Lawyer may seek a determination from a court or other tribunal as to the proper disposition of the electronic documents or files, based on the substantive law of waiver.

If, before examining metadata in an electronic document or file, the Receiving Lawyer receives notice from the sender that Confidential Information was inadvertently included in metadata in that electronic document or file, the Receiving Lawyer must not examine the metadata and must abide by the sender’s instructions regarding the disposition of the metadata.

The full opinion, No. 119 (May 17, 2008) is here.

The case, from the West Virginia Supreme Court, is here. There’s a story about it here.

Blacking out text doesn’t erase it. But a plaintiff’s firm suing GE in a $500m class action didn’t realize that… and put a whole slew of GE confidential information in the public domain as a result. Read about it here.

What if the United States government is authorized to review electronic data that leaves the country. Does that mean that there is any reasonable expectation of privacy, or any Fourth Amendment protection, over that data? That is a huge issue, as you can imagine, and a suit now seeks this:

declaratory judgment and equitable relief in order to gain certainty about whether the electronic transmission of data from the United States to Acumen India waives Fourth Amendment protection with respect to the data that is electronically transmitted. It seeks this declaration knowing that foreign nationals who reside overseas lack Fourth Amendment protections. It seeks this declaration having been informed, through published materials, that the United States Government engages in pervasive surveillance of electronically transmitted data wherein one party to the transmission is a foreign national residing overseas.

The amended complaint in Newman McIntosh & Hennessey, LLP v. Bush, here, alleges that President Bush has the “view” that it’s not illegal to monitor this data. Amazing world we live in.

Another opinion, this one from the New York County Bar Association, suggests that lawyers should not look for metadata (again, we’re not talking in the discovery context).  The opinion is here.

You can read about another lawyer-to-reporter instead of lawyer-to-lawyer e-mail here!

Effective January 1, 2008, New Hampshire adopted a rule that clearly protects persons who, in good faith, e-mail confidential information to a lawyer from having the lawyer use the information against the prospective client.  The comments to New Hampshshire Rule 1.18 provide in part: “In its version of these provisions, New Hampshire’s rule eliminates the terminology of ‘discussion’ or ‘consultation’ and extends the protections of the rule to persons who, in a good faith search for representation, provide information unilaterally to a lawyer who subsequently receives and reviews the information.  This change recognizes that persons frequently initiate contact with an attorney in writing, by e-mail, or in other unilateral forms, and in the process disclose confidential information that warrants protection.”

The rule no doubt makes it more important for NH lawyersto use effective disclaimers on their web pages.