Here is a recap of what we have asked you to look out for in the readings for next week.
Playboy:
- Use of a special master / officer of the court to handle forensics
- Recoverability of deleted information
- Note who is paying the cost.
Zubulake I
- Seven factor cost shifting test
- Use of a sample of backup tapes.
Zubulake III
- Search method used
- Cost issues
- Application of cost-shifting test
Zubulake IV
- Trigger date - When did the duty to preserve arise?
- Standard for adverse inference
Zubulake V
- General listing of UBS discovery violations
- Adverse inference
We will pick up the 2006 FRCP amendments and the 2009 VRCP amendments later (We probably won't get to them Wednesday.)
The Pension Plan of The University of Montreal case linked below is not required reading. It is, however, the latest development in e-discovery law, dealing with the timing and execution of litigation holds.
Monday, March 29, 2010
E-discovery links
Some links as we start talking about e-discovery are:
Zubulake I
Zubulake III
Zubulake IV
Zubulake V
Here is a link to the 2006 amendments to the FRCP, with a lot of attention given to e-discovery issues.
Vermont 2009 amendments, largely based on federal amendments.
The latest important case - also from Judge Scheindlin: "Zubulake Revisited"
One more older case: Playboy v. Welles
Zubulake I
Zubulake III
Zubulake IV
Zubulake V
Here is a link to the 2006 amendments to the FRCP, with a lot of attention given to e-discovery issues.
Vermont 2009 amendments, largely based on federal amendments.
The latest important case - also from Judge Scheindlin: "Zubulake Revisited"
One more older case: Playboy v. Welles
Tuesday, March 16, 2010
Defining the practice of law
Part of our discussion yesterday had to do with the question of what exactly is the practice of law. This has never been an easy question. The ABA tried and failed to put forth a model definition of the practice of law. The Model Rules prohibit unlicensed practice, but do not attempt to define the term "practice." One has to turn to the official comment to get the guidance that "The definition of the practice of law is established by law and varies from one jurisdiction to another." (Official comment to Rule 5.5)
If you look at the following definitions from various states, some by statue (maybe even some by rule - I haven't read all 51), you'll see they do vary quite a bit.
It isn't necessarily something one can know by "smell test" or "gut feelings." I can think of one time when I complained to a practicing Vermont lawyer about how people tend to ask law students (or recent graduate friends) annoying legal advice questions. I never want to answer those questions. I see possible liability - especially since I am still not admitted to the Vermont bar (although I will be March 31, 2010). However, the lawyer said I should be fine answering casual legal questions for friends because I was not doing it for money. Look at Vermont's definition based on In Re Welch in the link above. I sure think one could violate that one without charging any fees. In Alabama (just to pick a random example from the top of the list), it seems like you might be okay if you don't appear in court or charge a fee. (Anyone want to be the one to test that?)
If you look at the following definitions from various states, some by statue (maybe even some by rule - I haven't read all 51), you'll see they do vary quite a bit.
It isn't necessarily something one can know by "smell test" or "gut feelings." I can think of one time when I complained to a practicing Vermont lawyer about how people tend to ask law students (or recent graduate friends) annoying legal advice questions. I never want to answer those questions. I see possible liability - especially since I am still not admitted to the Vermont bar (although I will be March 31, 2010). However, the lawyer said I should be fine answering casual legal questions for friends because I was not doing it for money. Look at Vermont's definition based on In Re Welch in the link above. I sure think one could violate that one without charging any fees. In Alabama (just to pick a random example from the top of the list), it seems like you might be okay if you don't appear in court or charge a fee. (Anyone want to be the one to test that?)
Tuesday, March 9, 2010
Open data, open government
Structured and machine-readable data can help governments open up to public participation. Washington D.C. is a prime example in the United States. The city releases 428 data sets, ranging from vacant property, to purchase orders, to almost-real-time crime statistics. The data are delivered in a variety of formats (XML, KML, RSS, and others on a dedicated city Web site.
Developers can take the data and do what they will with it. One example is Stumble Safely that takes continually updated crime information and combines it with the location of bars and night spots to help revelers plan a safe night out. Information can also flow the other way. Award winners in a recent Apps for Democracy community edition contest was a program that allows iPhone users to place service requests to the city through the app, Fix My City DC. The app takes advantage of the city's first-in-the-world open 311 API. The system is an API (Application Programming Interface) - that is a program that lets other apps and programs talk to each other. In this case it allows app users to plug right in to the city's 311 system (for non-emergency service needs, as opposed to 911.) The app also takes advantage of other iPod features such as the ability to submit pictures of that monster pothole that are automatically geo-tagged with the exact spot.
I heard about this and other open-government initiatives at the launch conference for the University of Ottawa's Centre for Law, Technology and Society. One of the speakers, David Eaves, was detailing a list of crowd-sourcing and Web 2.0 friendly initiatives in that city. Among these were an app that lets users know in advance when their garbage pickup is (since Vancouver rotates its schedule.) Another new idea is using the Web game Foursquare to monitor how busy bus routes are, adding new buses on the fly if a given route is overloaded.
Another speaker was Daniel Schuman of the Washington, D.C. Sunlight Foundation. Schuman talked about some open government issues in the United States. He linked the issue to the recent Citizens United decision, claiming that if the flood of money into politics cannot be held back, at least it can be monitored. Schuman was enthusiastic about data.gov, a site where the federal government is releasing much information, sometimes in structured (XML, etc.) format. He cited two recent success stories, both involving Congress. The Sunlight Foundation has been able to cross reference data for lobbyists and members of congress to find instances when they have not always matched. Another project mapped the business interest of member of congress. (The main link seems to be having trouble right now. I believe the data behind this story came from the project.)
When government releases information in structured format, apps can be built to tie right into it. In Vancouver this has been made possible by the city's embrace of open-source software and sharing as much information as possible in open standards. (See here.) As you can see from the data.gov site here in the U.S., some of the American federal data is available in such structured formats (and D.C. has those 428 data streams). I asked Eaves and Schuman about standards in the data they get from governments and got two different answers. Citizens in Vancouver have been fairly successful at getting the government to release information in structured format. Schuman said that while that would be best, the Sunlight Foundation often has to settle for old fashioned paper or PDFs that someone else then has to code in to whatever system they are using.
One obstacle that had to be overcome for Vancouver was legal language that Eaves said screamed "Go away!". He showed a slide of proposed language from the city's license to use its open data. It had lots of clauses and disclaimers that were scary looking to the user. Eventually the city settled on less-scary sounding terms of use and a Creative Commons license asking only that credit for the information be given to the city of Vancouver.
Developers can take the data and do what they will with it. One example is Stumble Safely that takes continually updated crime information and combines it with the location of bars and night spots to help revelers plan a safe night out. Information can also flow the other way. Award winners in a recent Apps for Democracy community edition contest was a program that allows iPhone users to place service requests to the city through the app, Fix My City DC. The app takes advantage of the city's first-in-the-world open 311 API. The system is an API (Application Programming Interface) - that is a program that lets other apps and programs talk to each other. In this case it allows app users to plug right in to the city's 311 system (for non-emergency service needs, as opposed to 911.) The app also takes advantage of other iPod features such as the ability to submit pictures of that monster pothole that are automatically geo-tagged with the exact spot.
I heard about this and other open-government initiatives at the launch conference for the University of Ottawa's Centre for Law, Technology and Society. One of the speakers, David Eaves, was detailing a list of crowd-sourcing and Web 2.0 friendly initiatives in that city. Among these were an app that lets users know in advance when their garbage pickup is (since Vancouver rotates its schedule.) Another new idea is using the Web game Foursquare to monitor how busy bus routes are, adding new buses on the fly if a given route is overloaded.
Another speaker was Daniel Schuman of the Washington, D.C. Sunlight Foundation. Schuman talked about some open government issues in the United States. He linked the issue to the recent Citizens United decision, claiming that if the flood of money into politics cannot be held back, at least it can be monitored. Schuman was enthusiastic about data.gov, a site where the federal government is releasing much information, sometimes in structured (XML, etc.) format. He cited two recent success stories, both involving Congress. The Sunlight Foundation has been able to cross reference data for lobbyists and members of congress to find instances when they have not always matched. Another project mapped the business interest of member of congress. (The main link seems to be having trouble right now. I believe the data behind this story came from the project.)
When government releases information in structured format, apps can be built to tie right into it. In Vancouver this has been made possible by the city's embrace of open-source software and sharing as much information as possible in open standards. (See here.) As you can see from the data.gov site here in the U.S., some of the American federal data is available in such structured formats (and D.C. has those 428 data streams). I asked Eaves and Schuman about standards in the data they get from governments and got two different answers. Citizens in Vancouver have been fairly successful at getting the government to release information in structured format. Schuman said that while that would be best, the Sunlight Foundation often has to settle for old fashioned paper or PDFs that someone else then has to code in to whatever system they are using.
One obstacle that had to be overcome for Vancouver was legal language that Eaves said screamed "Go away!". He showed a slide of proposed language from the city's license to use its open data. It had lots of clauses and disclaimers that were scary looking to the user. Eventually the city settled on less-scary sounding terms of use and a Creative Commons license asking only that credit for the information be given to the city of Vancouver.
Wednesday, March 3, 2010
Data wranglers?
Our discussion in class today made me think of the related concepts of information overload and the lawyer's job as data wrangler (I think I made that one up.)
I'm offering this Wired magazine article as a further addition to our XML conversation, particularly the parts to do with XBRL and SEC-mandated reporting.
Here's a neat excerpt from Wired:
"But the volume of data obscures more than it reveals; financial reporting has become so transparent as to be invisible.... Undoubtedly, the warning signs of our current crisis - and the next one! - lie somewhere in all those [securities] filings, but good luck finding them."
However, this theme of information overload is going to be a recurring one in the rest of this course and in our lives. We'll talk about it more especially when we discuss e-discovery.
But just think about how much more information there is out there now. It holds true on any level, whether its computer storage space. I remember the first time I heard of a 100GB hard drive thinking it was ridiculous. Now 1TB (terabyte) is no big deal. I won't be surprised when 1 PB (Petabyte) rolls around in a few years. This is also true for the ever-increasing tide of SEC filings. We are also consuming more information ourselves, as this study (among many others) attests. What will be the effects?
In a more business-oriented context, the special report at the center of this week's Economist magazine is on "The Data Deluge." I haven't had a chance to read it yet, but I look forward to it. I also encourage you to think about what this information explosion means to the future of lawyers and if there is anything to my "data wrangler" idea.
I'm offering this Wired magazine article as a further addition to our XML conversation, particularly the parts to do with XBRL and SEC-mandated reporting.
Here's a neat excerpt from Wired:
"But the volume of data obscures more than it reveals; financial reporting has become so transparent as to be invisible.... Undoubtedly, the warning signs of our current crisis - and the next one! - lie somewhere in all those [securities] filings, but good luck finding them."
However, this theme of information overload is going to be a recurring one in the rest of this course and in our lives. We'll talk about it more especially when we discuss e-discovery.
But just think about how much more information there is out there now. It holds true on any level, whether its computer storage space. I remember the first time I heard of a 100GB hard drive thinking it was ridiculous. Now 1TB (terabyte) is no big deal. I won't be surprised when 1 PB (Petabyte) rolls around in a few years. This is also true for the ever-increasing tide of SEC filings. We are also consuming more information ourselves, as this study (among many others) attests. What will be the effects?
In a more business-oriented context, the special report at the center of this week's Economist magazine is on "The Data Deluge." I haven't had a chance to read it yet, but I look forward to it. I also encourage you to think about what this information explosion means to the future of lawyers and if there is anything to my "data wrangler" idea.
XML in legislation
Legislatures and governments have been using XML in a variety of ways. One way would be to actually draft legislation in XML. This is discussed in an American context here.
Another way is to use XML as a means of promoting open government. This is discussed here (beginning on page 119).
There is also some very interesting stuff going on in Europe right now using XML in a multilingual setting where multiple drafts are needed of multiple versions of bills in many official languages. See here.
Another way is to use XML as a means of promoting open government. This is discussed here (beginning on page 119).
There is also some very interesting stuff going on in Europe right now using XML in a multilingual setting where multiple drafts are needed of multiple versions of bills in many official languages. See here.
Tuesday, March 2, 2010
General counsel should choose firms that use document assembly
Post from Law Department Management blog here.
My starred Google Reader feed
A few weeks ago I decided to try something new, and I linked my starred Google Reader feed on this blog. (It's on the right hand side near the top.)
I star articles for a number of reasons. Sometimes it is because I run out of time when I am reading them and want to be sure to return to them. Sometimes it is just because they are amusing. Sometimes it is because I hope to comment on them or link them from this blog.
Many, possibly even most, of them pertain to topics covered in this class. Many do not.
One interesting effect is that I seem to be starring fewer articles (and probably fewer silly or amusing ones) now that I know there is a possibility somebody else could see my reading list.
I star articles for a number of reasons. Sometimes it is because I run out of time when I am reading them and want to be sure to return to them. Sometimes it is just because they are amusing. Sometimes it is because I hope to comment on them or link them from this blog.
Many, possibly even most, of them pertain to topics covered in this class. Many do not.
One interesting effect is that I seem to be starring fewer articles (and probably fewer silly or amusing ones) now that I know there is a possibility somebody else could see my reading list.
More optimistic takes on expert systems in administrative law
The article by Danielle Citron of course highlighted some of the failures of expert system use in administrative law, such as awarding social benefits.
These two papers describe a somewhat different experience in the Netherlands. Although some problems are acknowledged and the author believes many bureaucrats have too much faith in such systems, the overall tone seems more optimistic.
The concluding paragraph of the article, by Marga Groothuis and Jörgen S. Svensson is as follows:
"Since the problem of juridically correct decision making under great pressure is a
more general phenomenon in public administration, and since the use of expert systems is now becoming more popular, these findings should be generalised. Although expert
systems may indeed support decision making, they will never provide full proof solutions and they will always be limited in their functionality. When the limits of such systems are not clear to the administrative bodies and to the individual users, there is the risk of overreliance. It is a further argument in favour of the view that people who use artificial systems should be made aware of the possibilities and the limits of these tools.[15] Administrative bodies too, should probably take additional measures to keep control over decision quality in fields which are not covered by such computer programmes."
The complete article is here.
These two papers describe a somewhat different experience in the Netherlands. Although some problems are acknowledged and the author believes many bureaucrats have too much faith in such systems, the overall tone seems more optimistic.
The concluding paragraph of the article, by Marga Groothuis and Jörgen S. Svensson is as follows:
"Since the problem of juridically correct decision making under great pressure is a
more general phenomenon in public administration, and since the use of expert systems is now becoming more popular, these findings should be generalised. Although expert
systems may indeed support decision making, they will never provide full proof solutions and they will always be limited in their functionality. When the limits of such systems are not clear to the administrative bodies and to the individual users, there is the risk of overreliance. It is a further argument in favour of the view that people who use artificial systems should be made aware of the possibilities and the limits of these tools.[15] Administrative bodies too, should probably take additional measures to keep control over decision quality in fields which are not covered by such computer programmes."
The complete article is here.
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