A colleague and I recently published an article in BNA’s Digital Discovery & e-Evidence® discussing the recent sanctions against Quinn Emanuel Urquhart & Sullivan LLP, in Apple, Inc. v. Samsung Electronics Co. Ltd, et. al., 5:11-cv-01846 (N.D. Cal. Jan. 29, 2014). Our article, “Protecting Confidential Information: Lessons from the Apple v. Samsung Firestorm,” tells a

On Wednesday August 14, 2013, I will be participating in a free BNA webinar exploring the constitutional and practical dimensions of ESI in federal and state criminal actions. I will be speaking with an experienced group of panelists, including Hon. Craig B. Shaffer, United States Magistrate Judge, District of Colorado; Roy Altman, Assistant United States

In an ethics opinion issued last month, New Hampshire joined the growing list of states and cities whose bar association ethics committee has provided its lawyers with formal guidance on the ethics of using social media to search for evidence in pending litigation. Given the ubiquity of social media use today, some may contend that searching for social media evidence that may be available from the accounts of clients, opposing parties and third-party witnesses is part of a lawyer’s ethical duty to represent his or her client competently and diligently and to investigate the case. Using social media to collect evidence or investigate a case, however, may implicate additional ethical duties, including the duty to be honest in dealing with others. Consequently, an increasing number of bar association ethics committees are addressing the fact that their respective rules of professional conduct don’t offer express guidance on how to navigate the ethical issues that these new technologies present to lawyers. In addition to communications with third-party witnesses, recent ethics opinions address a host of other novel issues, such as the July 2013 New York County Lawyer’s Association’s Ethics Opinion advising lawyers on “how attorneys may advise clients concerning what may be posted or removed from social media websites.”
Continue Reading New Hampshire Becomes Latest Jurisdiction to Advise Lawyers on How to Ethically Use Social Media When Searching for Evidence on Facebook and Twitter

Back in February, I spoke at the at the Richmond Journal of Law and Technology’s annual symposium, titled “E-Discovery: A New Frontier.” During my presentation, I discussed many of the new and cutting edge issues facing practitioners in government investigations and criminal litigation, including pre-indictment practice, various constitutional issues, privacy, and various issues

In conjunction with the Richmond Journal or Law and Technology’s annual survey, Adrian Fontecilla and I have published a new article: Social Media Evidence in Government Investigations and Criminal Proceedings. The article provides an in-depth look at many of the cutting edge issues raised by social media in government investigations and the criminal context,

Last week, I spoke with Bloomberg about the challenges associated with the use of social media in government investigations and criminal matters. The video, titled Confronting an Uncertain Frontier: The Role of Social Media at Trial is posted on Bloomberg’s E-discovery Resource Center.

 In the interview, I discussed the widespread use of social media in

Last week, I was one of the featured speakers at the Richmond Journal of Law and Technology’s annual symposium, titled “E-Discovery: A New Frontier.” I discussed many of the new and cutting edge issues facing practitioners in government investigations and criminal litigation, including pre-indictment practice, various constitutional issues, privacy, and various issues relating to social media.

Michael Yager, Director of e-discovery at Spotts Fain, presented on “E-discovery as Quantum Law.” Michael discussed how developments in e-discovery law have been no less shattering to practitioners in the “classic” practice of law than the introduction of quantum theory to physics. He described the clash of cultures within the practice of e-discovery, and also argued that the introduction of ESI has created a noticeable shift in jurisprudence related to e-discovery, causing a “cultural explosion” within a segment of the legal profession not seen in any other profession since the development of Quantum physics approximately a century ago.
Continue Reading Reflections on the Richmond Journal of Law and Technology’s Annual Survey and Symposium

The ubiquity of social media cannot be denied, nor its implications for the practice of law. Lawyers are not only being encouraged to have an online presence for networking purposes, but they are also asked to use the internet and social media to conduct research, where some courts have even reproached lawyers for not doing so. See Johnson v McCullough, 306 S.W. 3d 551 (Mo. 2010). Lawyers in New York are being asked to walk a very fine – albeit, virtual – line: to use social media to zealously and effectively represent clients, but all the while conform to professional conduct rules which have not yet been revised to reflect the use of these new tools.

To address these new challenges, various New York legal organizations and associations have published informal ethics opinions over the past few years providing guidance for lawyers using social media in their practice. Here are some tips for New York lawyers walking the virtual line when using social media to research jurors.

The current New York Rules of Professional Conduct (“RPC”) proscribe most contact a lawyer may have with a juror, with rules differing based on each stage of trial. The New York County’s Lawyers Association’s (NYCLA) Committee on Professional Ethics 2011 Formal Opinion on “Lawyer investigation of juror internet and social networking postings during conduct of trial” explains:
Continue Reading Walking The Virtual Line: A Guide For New York Trial Lawyers Conducting Jury Research Using Social Media

Social media pervades our world and has evolved into one of the core pillars of modern communication, shaping how we do business, learn about and share news, and engage with family and friends.  It is also undeniably a critical, new frontier of government investigations and criminal proceedings. 

In a new article published by Bloomberg and

Litigation costs are far too often driven up by an unnecessarily adversarial approach to discovery. Many clients and their counsel continue to believe that their litigation interests are best served through contention and a lack of reasonable candor. They are mistaken.

Several years ago, The Sedona Conference® addressed this issue with its Cooperation Proclamation, which called for increased cooperation in discovery. Since then, courts increasingly have encouraged cooperation, and commended those who do so.

For example, in Kleen Products LLC v. Packaging Corp. of Am., 2012 WL 4498465 (N.D. Ill. Sept. 28, 2012), the magistrate judge praised “the lawyers and their clients for conducting their discovery obligations in a collaborative manner.” The court applauded the parties for avoiding needless motion practice through meaningful meet-and-confers that began early and continued through discovery.

Since its publication, the Cooperation Proclamation has received nearly 150 judicial endorsements. Yet, the cooperation commended in Kleen Products remains too much of a rarity. Many litigants and their lawyers still don’t play nice in the sandbox. That needs to change.
Continue Reading A Call for Increased Cooperation: Litigants and their lawyers need to meet and confer early and often—and learn how to do so effectively—and courts need to encourage cooperation through greater facilitation and sanctions