JANUARY 202 1 VOLUME 1 7/ NUMBER 6 TODAYSGENER ALCOUNSEL.COM
TAKE A CLOSER LOOK AT:
ROBOTS WILL NOT REPLACE YOU, TOTALLY THE ARBITRAL INSTITUTION TRUSTED TO HANDLE MORE CASES THAN ANY OTHER. Inadmissible evidence can still have a positive impact Digital forensics and e-discovery
$199 SUBSCRIPTION RATE PER YEAR ISSN: 2326-5000
GLOBAL EXPERTISE Matters. ISSUU.COM/TODAYSGC
THE ARBITRAL INSTITUTION TRUSTED TO HANDLE MORE CASES THAN ANY OTHER. As the international division of the American Arbitration Association®, the ICDR® has been the world’s leading provider of cross-border dispute resolution services for decades—handling more cases than any other institution. See all the reasons to choose the ICDR at icdr.org.
icdr.org
| +1.212.484.4181
GLOBAL EXPERTISE Matters. ©2020 American Arbitration Association, Inc. All rights reserved.
JANUARY 202 1 VOLUME 1 7/ NUMBER 6 TODAYSGENER ALCOUNSEL.COM
ROBOTS WILL NOT REPLACE YOU, TOTALLY Inadmissible evidence can still have a positive impact Digital forensics and e-discovery
$199 SUBSCRIPTION RATE PER YEAR ISSN: 2326-5000 ISSUU.COM/TODAYSGC
AT THE HEART OF BUSINESS® Uncommon value for clients who shape our everyday lives.
ATLANTA CALIFORNIA CHICAGO DELAWARE INDIANA MICHIGAN MINNEAPOLIS NEW YORK OHIO RALEIGH SALT LAKE CITY TEXAS WASHINGTON, D.C. BTLAW.COM
contents
JANUARY 2021 Volume 17/ Number 6
4 EDITOR’S DESK LABOR & EMPLOYMENT
7 CONVENTIONAL INVESTIGATIVE TOOLS AND HIGH-TECH SLEUTHING
20
The plaintiffs couldn’t leave well enough alone. By Jeff Stinson E-DISCOVERY
10 THINK ABOUT DIGITAL FORENSICS WHEN YOU CONDUCT E-DISCOVERY Duty to preserve and duty to produce. By Robert A. Stines
COLUMN PRIVILEGE PLACE
16 TO CC OR NOT TO CC: THAT IS THE PRIVILEGE QUESTION “I see you’re looking for legal advice” is the correct response. By Todd Presnell FEATURES
COMPLIANCE
14 PROPOSED LEGISLATION ADDRESSES WEBSITE ACCESSIBILITY SUITS Deterring “surf-by” lawsuits. By Anthony A. Mingione and Martin S. Krezalek
18 USING STATE COURT LITIGATION ANALYTICS Quantification comes to the legal department. By Rick Merrill 20 LET IN-HOUSE LAWYERS FOCUS ON WHAT THEY DO BEST Incorporating AI and automation into operations. By Sarvarth Misra JANUARY 202 1 TODAYSGENERALCOUNSEL.COM
3
EDITOR’S DESK
M
ost attorneys have happily adapted to the technologies that make legal work easier, but even if they don’t suffer from technophobia, the proliferation of devices, and the
growth in data information technology and storage locations, can still keep them up at night (techno-insomnia?). The articles in this issue of Today’s General Counsel should help. They all deal with the problems and opportunities posed by technology. Columnist Todd Presnell considers the many privilege issues caused by simply using the CC option on an email. Robert Stines discusses the role of digital evidence in litigation, and Jeff Stinson describes two instances when defense attorneys took advantage of plaintiffs’ social media habits in ways that undercut their own cases. Anthony Mingione and Martin Krezalek describe proposed legislation to end lawsuits against websites that the sponsors of the bill call abuse of the Americans with Disabilities Act. Rick Merrill argues the case for AI-powered tools that can provide a crucial edge in state court litigation, and Sarvarth Misra tackles the angst attorneys suffer when they contemplate machines or robots replacing some legal positions altogether. In fact, he says, AI and automation will lead to substantial cost savings, and leave plenty of legal work for humans. It will just be less tedious and more rewarding.
Bob Nienhouse, Editor-In-Chief bnienhouse@TodaysGC.com
4
TODAYSGENERALCOUNSEL.COM JANUARY 202 1
BACK TO CONTENTS
EDITOR-IN-CHIEF Robert Nienhouse
MANAGING EDITOR
EXECUTIVE EDITOR
SENIOR EDITOR
David Rubenstein
Bruce Rubenstein
Barbara Camm
CHIEF OPERATING OFFICER
CONTROLLER
Stephen Lincoln
Manuel Rosas
DIGITAL EDITOR
DATABASE MANAGER
Catherine Lindsey Nienhouse
Patricia McGuinness
ART DIRECTION & PHOTO ILLUSTRATION MPower Ideation, LLC
CONTRIBUTING EDITORS AND WRITERS Martin S. Krezalek Rick Merrill Anthony A. Mingione Sarvarth Misra Todd Presnell Robert A. Stines Jeff Stinson SUBSCRIPTION Subscription rate per year: $199 For subscription requests, email subscriptions@todaysgc.com
EDITORIAL ADVISORY BOARD Dennis Block
GREENBERG TRAURIG, LLP
Thomas Brunner
WILEY REIN
Peter Bulmer
JACKSON LEWIS
Mark A. Carter
DINSMORE & SHOHL
James Christie
BLAKE CASSELS & GRAYDON
Thurston Moore
Robert Heim
Robert Profusek
Joel Henning
Art Rosenbloom
Sheila Hollis
George Ruttinger
David Katz
Jonathan S. Sack
DECHERT
JOEL HENNING & ASSOCIATES
DUANE MORRIS
WACHTELL, LIPTON, ROSEN & KATZ
Adam Cohen
Steven Kittrell
Jeffery Cross
Nikiforos latrou
Thomas Frederick
Timothy Malloy
FTI CONSULTING
FREEBORN & PETERS
WINSTON & STRAWN
REPRINTS For reprint requests, email Jill Kaletha jkaletha@mossbergco.com Foster Printing at Mossberg & Co
Robert Haig
KELLEY DRYE & WARREN
Jamie Gorelick
WILMERHALE
MCGUIREWOODS
WEIRFOULDS
MCANDREWS, HELD & MALLOY
Steven Molo MOLOLAMKEN
HUNTON & WILLIAMS
JONES DAY
CHARLES RIVER ASSOCIATES
CROWELL & MORING
MORVILLO, ABRAMOWITZ, GRAND, IASON & ANELLO, P.C.
Victor Schwartz
SHOOK, HARDY & BACON
Jonathan Schiller
BOIES, SCHILLER & FLEXNER
Robert Zahler
PILLSBURY WINTHROP SHAW PITTMAN
All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopy, recording, or any information or retrieval system, without the written permission of the publisher. Articles published in Today’s General Counsel are not to be construed as legal or professional advice, nor unless otherwise stated are they necessarily the views of a writer’s firm or its clients. Today’s General Counsel (ISSN 2326-5000) is published ten times per year by Nienhouse Group Inc., 30 S. Wacker Drive, Suite 2200, Chicago, Illinois 60606 Image source: iStockphoto | Copyright © 2021 Nienhouse Group Inc. Email submissions to editor@todaysgc.com or go to our website www.todaysgeneralcounsel.com for more information.
L ABOR & EMPLOYMENT
Conventional Investigative Tools and High-Tech Sleuthing By JEFF STINSON
T
he year 2020 has certainly been one that none of us will ever forget. The COVID-19 pandemic has impacted every aspect of our society, and the legal and risk management communities have not been spared. Zoom mediations, depositions and even court proceedings — rare prior to March 2020 — have become the norm. The practice of law and managing claims have been upended by the pandemic. So has the ability to investigate claims, but those challenges can be overcome. This article will cover two real cases in which traditional investigative techniques BACK TO CONTENTS
were combined with modern technology to achieve favorable outcomes.
DANCING DARRELL Darrell had a workers’ compensation claim against a large retail establishment. His case had been accepted by the insurance carrier, and he was receiving workers’ compensation benefits for a back injury. He had been placed on work restrictions by his doctors, which precluded him from performing his normal job duties, and was receiving weekly income benefits. Darrell’s co-workers were not
convinced there was anything wrong with him and suspected that he was exaggerating his complaints for financial gain. The insurance carrier hired an investigator to perform a social media check, which did not turn up anything useful. However, the investigator also talked to Darrell’s manager, who informed him that Darrell had a second Facebook page listed under a colorful name with no relation to his actual name. This second Facebook page was public, with all its contents visible to anyone who opened it. It provided an unfiltered look into Darrell’s reality, which was far
JANUARY 202 1 TODAYSGENERALCOUNSEL.COM
7
different from what he had been telling his doctors. Most interestingly, Darrell recently posted a video showing him with several other individuals engaged in a dance party in the middle of a busy downtown Atlanta street. At one point in the video, Darrell was seen with one leg extended up onto the side mirror of a vehicle while he danced up and down. There was clearly no evidence that Darrell had a back injury or was disabled in any way. The video was subsequently shown to Darrell’s doctor, and he agreed there was no reason that Darrell could not work. The problem, however, was that there was no clear indication when it was taken, only when it was posted. Furthermore, there were evidentiary hurdles to tendering the video into evidence at a hearing as there was no information regarding who took the video and whether it was authentic. These challenges were partially overcome with tailored requests for admission served on Darrell, to which Darrell and his attorney failed to respond, and were deemed admitted. Ultimately, Darrell’s attorney agreed that the video was very damaging to his client’s case and credibility. The case was settled pre-trial for a fraction of what its value was assessed at prior to discovery of the video. The moral of this story is that the adage “Dance like no one is watching” is not always the best advice, especially if you are faking a work injury.
RAPPING RANDY AND HIS RATTING CO-WORKER Randy worked for a beverage company in the warehouse. He was responsible for packing beverages into cases, stacking them and moving them into a trailer for
8
distribution to convenience and grocery stores throughout Georgia. Randy injured his shoulder while performing his job duties and required surgery. Although he had a good surgical outcome, he was not cleared to return to his regular job; and his employer reached a settlement agreement of his workers’ compensation claim. One of Randy’s co-workers got wind of the settlement. He knew that Randy was exaggerating his complaints, as Randy had bragged to him and other co-workers about how much he had been paid by the company. The co-worker decided to share what he knew: he had more information than just the overheard comments about Randy’s settlement. He knew there was video evidence to show that Randy was lying. The co-worker told his employer’s human resources department to check out Randy’s YouTube page, listed with his stage name “Rapping Randy.” Sure enough, a video had just been posted to the page showing Randy’s latest music video. In it, Randy could be seen waving a large stack of hundred-dollar bills outside of his workplace. More importantly, the video also included footage of Randy jumping into a convertible vehicle using his hands to spring up on the car and down into the back seat. Surely, someone recovering from a torn rotator cuff, which prevented him from doing his normal job, could not put the weight of his entire body onto both arms, right? Randy’s employer was furious after seeing the video and instructed the insurance carrier to pull the settlement off the table. Randy’s attorney was surprised to hear of the video and agreed that it was damaging to Randy’s case. However, her argument — similar
TODAYSGENERALCOUNSEL.COM JANUARY 202 1
to the arguments by Darrell’s attorney — was that it was unclear when the video was taken. It had been posted to YouTube shortly after the settlement agreement was reached, but she argued that it could have been taken at any time and, therefore, its impact was limited. Ultimately, she knew that the video was not good for Randy’s case. Rather than risk losing everything at a hearing, she re-negotiated the settlement at a substantial savings to the employer. These cases demonstrate how evidence obtained from social media accounts can be used to lead to favorable outcomes. Both derived from old-fashioned detective work, which then led to further investigation that ultimately proved fruitful. There were evidentiary challenges; but while there might have been difficulty getting them into evidence, their existence was enough. Sometimes, it is not necessary to have evidence that is admissible in court for it to have a positive impact on your case. As we continue to navigate through 2020, using traditional investigative methods in conjunction with modern technology will continue to help manage claims and mitigate risks.
Jeff K. Stinson is a partner at Swift, Currie, McGhee & Hiers LLP, with more than 15 years of experience counseling insurance companies and employers through difficult workers’ compensation claims. jeff.stinson@swiftcurrie.com
BACK TO CONTENTS
TAKE A CLOSER LOOK AT:
THE ARBITRAL INSTITUTION TRUSTED TO HANDLE MORE CASES THAN ANY OTHER. As the international division of the American Arbitration Association®, the ICDR® has been the world’s leading provider of cross-border dispute resolution services for decades—handling more cases than any other institution. See all the reasons to choose the ICDR at icdr.org.
GLOBAL EXPERTISE Matters. icdr.org
| +1.212.484.4181
©2019 American Arbitration Association, Inc. All rights reserved.
E-DISCOVERY
Think About Digital Forensics When You Conduct E-Discovery By ROBERT A. STINES been preserved in the anticipation or conduct of litigation is lost because reasonable steps were not taken to preserve it, and it cannot be restored or replaced through additional discovery. The duty to produce ESI in proper format is based on Rule 34, which provides that when receiving a request to produce, if the request does not specify a form for producing ESI, a party must produce it in a form in which it is ordinarily maintained or in a reasonably usable form or forms.
DIGITAL FORENSICS IN E-DISCOVERY
S
ociety’s dependence on digital platforms and networks has changed our legal system. Digital evidence is now a critical component of both civil and criminal proceedings. Documents and electronically stored information are maintained and stored using software such as tagged image file format (TIFF), portable display format (PDF), electronic mail, text messages, databases, and so forth, all of which are electronically stored information (ESI). With ESI, litigators are searching for relevant digital evidence, which is information that is either transferred
10
or stored in binary format. Litigators tend to overlook that relevant digital evidence is potentially stored on many devices — laptops, desktops, mobile phones, tablets, digital cameras, flash drives, CDs, DVDs, and even wearable devices. In e-discovery, there are, at a minimum, two different duties that practitioners should always consider: (1) the duty to preserve ESI and (2) the duty to produce the ESI in proper format. The duty to preserve is derived from Federal Rule of Evidence 37, which allows sanctions for failure to preserve ESI. A court may sanction a party if ESI that should have
TODAYSGENERALCOUNSEL.COM JANUARY 202 1
The Sedona Conference defines e-discovery as the process of identifying, locating, preserving, collecting, preparing, reviewing and producing ESI in the context of the legal process. Successful e-discovery relies heavily on digital forensics tools and expertise. Similar to e-discovery, computer forensics is the use of analytical and investigative techniques to identify, collect, examine and preserve information that is magnetically stored or encoded. Recently, because computer forensics has expanded to include more than just computers, the term “digital forensics” has become the term of choice for forensic examiners. In civil litigation, when a party receives a request for discovery (even without a specific request BACK TO CONTENTS
Corporate Compliance Enforcement Conference
February 23, 2021
VIRTUAL CONFERENCE
Group discount
Hear from government enforcement authorities from around the globe
for 3 or more!
• Understand the latest DOJ guidance for evaluating compliance programs • Learn how recent enforcement actions and resolutions impact your program • Get the latest on FCPA and antitrust • Review European data protection expectations and enforcement actions
Learn more and register online corporatecompliance.org/2021ccec
for ESI), the responding party must identify, preserve, collect and examine information for production. The type of analytical or investigative technique that the responding party uses will differ depending on the circumstances. But, make no mistake, if the requested information is at rest on a digital device, then digital forensics, by definition, is involved in the e-discovery process. In business litigation, preserving and collecting ESI is a priority — even before the initiation of the civil proceedings. If a party maintains information in electronic format, they must preserve the information as it is ordinarily maintained. The critical aspect of preserving and collecting ESI is to avoid changing the data or data about data (metadata). In other words, the data needs to be preserved and collected in a forensically sound manner. A common example of changing data is when litigants preserve emails that are typically in .pst or MBOX format by saving them to TIFF or pdf. When emails are preserved in TIFF, this changes data and possibly strips all metadata. Preserving and collecting social media posts, website information, proprietary databases, messaging platforms, text messages, and encrypted or deleted data is complex and difficult. For these complex types of data structures, a forensic examiner is better equipped to handle the preservation and collection. Parties should take the preservation and collection process seriously because there are cases where litigants were sanctioned for inadvertently destroying metadata. Although the terms vary, there are two common types of forensic images: logical and physical. A logical image captures only accessible
12
files in specific locations and does not include deleted or hidden files. Anyone with some training and proper software can collect a logical image. A physical image is a bit-by-bit duplicate of an entire drive, including any deleted or
work, we can expect an exponential growth in data, information technology and storage locations. Companies and individuals may thus have difficulty managing the unique sources of ESI. Litigants will need to understand e-discovery
There are two common types of forensic images: logical and physical. hidden files that were missed in a logical image. A physical image requires special software tools and should be performed by a digital forensic specialist. In many cases, a logical image will meet litigants’ discovery obligations and the court’s requirements. In some cases, especially those involving personal devices, a physical forensic image is a better and safer option for preservation and collection.
BEWARE WHAT YOU PRODUCE Litigants should be extremely cautious about producing a physical image of a device to the opposing side. In fact, it should be avoided as much as possible. A physical image contains every “bit” of data. It may include pictures, online browsing history, GPS location, passwords, personally identifiable information, deleted files that have not been overwritten and history of backups to other devices, which may result in requests to inspect these other devices. If a court orders the inspection or production of physical images, litigants should seek protocols or other protective measures that consider any applicable privacy rights and privileges, as well as the need to avoid producing ESI that is not relevant. With the advent of the Internet of Things (IoT), 5G networks and widespread adoption of remote
TODAYSGENERALCOUNSEL.COM JANUARY 202 1
and digital forensics or retain a consultant to assist with navigating the growing complexity of the discovery process. Failure to appreciate the complexity and implement proper protocols may result in uncomfortable conversations with a judge to explain the reason why data or metadata was not preserved, collected and produced.
Robert A. Stines is a partner in the Tampa office of Freeborn & Peters LLP and a member of the firm’s Litigation Practice Group and Emerging Technologies Industry Team. He has extensive experience with matters that hinge on digital forensics protocols. rstines@freeborn.com
BACK TO CONTENTS
STAY CURRENT WITH OUR RESOURCE CENTER White Papers Webinars Product Guides Case Studies Industry Analysis And more!
Visit Today’s GC Resource Center
Click the Resources to tab to visit our library of free downloadable content provided by experts and vendors within the legal industry and stay current in a rapidly changing world.
TODAYSGCRESOURCES.COM @TodaysGC
Follow us
Like us
COMPLIANCE
Proposed Legislation Addresses Website Accessibility Suits By ANTHONY A. MINGIONE AND MARTIN S. KREZALEK
I
n October 2020, Representatives Lou Correa (D-CA) and Ted Budd (R-NC) introduced a proposed Online Accessibility Act, intended to curb lawsuits that accuse consumer-facing websites of violating Title III of the Americans with Disabilities Act (ADA). The Online Accessibility Act would formally remove websites and mobile applications from Title III coverage and create a new ADA Title VI dedicated specifically to consumer-facing websites and mobile applications. The key points of the proposed legislation are discussed below.
14
But first, a brief discussion of where we are and how we got here. The ADA requires places of “public accommodation” to meet accessibility standards for disabled visitors. The statute enumerates several specific public accommodations (e.g., restaurants and hotels), all of which are physical locations. Although the question of whether websites conducting online business must also be accessible is not addressed in the legislative text of the ADA, the Department of Justice (DOJ) and many federal courts have concluded that websites are places of public accommodation, and
TODAYSGENERALCOUNSEL.COM JANUARY 202 1
as such must be accessible to all visitors. The main problem with shoehorning websites into Title III of the ADA has been that unlike physical premises, which are heavily regulated, the DOJ has not promulgated standards for online accessibility. The DOJ initiated rulemaking in 2010, contemplating accessibility requirements based on the World Wide Web Consortium’s (WC3) Web Content Accessibility Guidelines 2.0 Level AA Success Criteria (WCAG 2.0 AA), but terminated the process in 2017. Since that time, websites of all kinds have been vulnerable to litigation, and the courts have been deluged with thousands of cases. The result has been a patchwork of inconsistent decisions. In October 2019, the U.S. Supreme Court declined to clarify the issue, leaving in place a Ninth Circuit ruling that had determined Title III applies to a restaurant chain website and mobile application because each constitutes a “service of a place of public accommodation.” More than 2,800 federal “surf by” lawsuits are now filed each year. More than 90 percent settle quickly. In the absence of achievable safe harbor standards, the question of whether a website is accessible often presents “factual” issues that preclude pre-answer BACK TO CONTENTS
dismissal. Litigation gets significantly more costly once discovery begins, and the cost of litigation nearly always exceeds the cost of settlement in these cases. When faced with the choice between the relatively low cost of settling early and the uncertain outcome of protracted litigation, most businesses choose to pay for peace even if their website is significantly accessible. The status quo is untenable for businesses, and now Congress may be paying attention.
THE PROPOSED ACT The proposed Online Accessibility Act is rooted in the premise that a predictable regulatory environment is critical for businesses. The drafters recognize that, similar to physical premises, websites should be accessible to the disabled, and their owners should have available defenses to predatory litigation. Title III provides physical businesses with comfort that compliance with regulatory standards is a valid defense to such claims. The new ADA Title VI aims to provide the same clarity for businesses with consumer-facing websites. The Online Accessibility Act would officially adopt the WCAG 2.0 AA criteria, which would establish the first-ever statutory codification of an accessibility standard for business websites. Importantly, the drafters recognize that perfect conformity is not possible; and the bill provides that a website or mobile application should be considered accessible if it is in substantial compliance with WCAG 2.0 AA or any subsequent guidelines from the WC3. Baking in the concept of substantial, as opposed to perfect, compliance is critical. Websites are fluid. Every new page, photo BACK TO CONTENTS
or link that is added triggers new potential screen reader accessibility issues that may not be immediately apparent. The statutory term “substantial compliance” is no doubt in the eye of the beholder and the likely subject of future litigation for clarification. To that end, the bill would grant the Architectural and Transportation Barriers Compliance Board — an existing independent U.S. government agency devoted to accessibility for people with disabilities — with the authority to promulgate rules defining, among other key terms, “substantial compliance” and “alternative means of access.”
ADMINISTRATIVE REMEDIES One of the most consequential elements of the Online Accessibility Act would be its requirement that potential plaintiffs exhaust administrative remedies before filing suit, giving businesses the opportunity to remedy any alleged accessibility barriers. Businesses would have 90 days’ notice to bring their website or app into compliance. The notifying individual can then file a complaint with the DOJ, which will investigate and issue a determination. If the DOJ finds discrimination, it may file a lawsuit for injunctive relief and damages, including civil penalties. Assuming that the DOJ does not bring a civil action, the individual can file a lawsuit. If enacted, the Online Accessibility Act will be a meaningful step towards providing a reliable framework for businesses to maintain accessible customer-facing websites, curb the serial litigation that has exploded in recent years and create real remedies to resolve violations. The Online Accessibility Act is not yet law. For the foreseeable future, there is no safe harbor,
and all businesses with an Internet presence remain vulnerable to accessibility lawsuits. A coordinated strategy is the best approach to manage risk. Successful strategies involve internal decision makers, solid legal advice and qualified website design professionals. Businesses should continue auditing their websites and mobile apps to ensure accessibility. From a practical standpoint, businesses should strive to be as compliant as possible with WCAG 2.0 —and, if practicable, the recently issued and updated version 2.1. Despite best efforts, businesses may find themselves defendants in an accessibility lawsuit. If that happens, capitulation is not the only option. It is critical to remember that valid defenses exist and are a key part of any company’s approach.
Anthony A. Mingione, partner and co-chair of Blank Rome LLP’s General Litigation Practice Group, devotes his practice to providing business solutions to legal problems in the workplace and litigating business disputes. amingione@blankrome.com Martin S. Krezalek, of counsel at Blank Rome LLP, concentrates his practice on business litigation and dispute resolution. He regularly defends businesses facing website accessibility lawsuits alleging violations of the Americans with Disabilities Act. mkrezalek@blankrome.com
JANUARY 202 1 TODAYSGENERALCOUNSEL.COM
15
PRIVILEGE PL ACE
To CC or Not to CC: That Is the Privilege Question By TODD PRESNELL
D
oes anyone recall the etymology of the “cc” option in our emails? I do. Before the advent of copying machines, initially known ubiquitously as Xerox machines, lawyers would insert carbon paper between two sheets of paper when typing a letter. When the typewriter keys struck the top sheet, the carbon paper imprinted the letters and words on the bottom sheet to create a copy of the text. Thus, the letter included a “cc,” or “carbon copy.” This cumbersome process necessarily limited the scope and number of persons receiving
16
copies. But when the “cc” concept carried over to email communications, its limited scope did not. Today, any corporate employee can easily copy an in-house lawyer on emails where the primary recipient is a non-lawyer. This opportunity creates privilege issues for in-house lawyers. Courts question whether an employee’s email sent to a lawyer as a secondary recipient was truly seeking legal advice. Courts often view emails between two non-lawyer employees copied to in-house counsel as, at best, dual purpose communications. Many judges caution that
TODAYSGENERALCOUNSEL.COM JANUARY 202 1
an employee who merely copies an in-house attorney on an email to a non-lawyer colleague does not automatically render the email privileged. Courts scrutinize the putatively privileged communication to determine whether its primary purpose was to secure or dispense legal advice. Sending an email to an in-house lawyer as the primary recipient increases the chances that a judge will find that the purpose was related to legal advice. Sending the email to the in-house lawyer as a “cc” or secondary recipient decreases the chances of privilege. Think about it: How can the BACK TO CONTENTS
primary purpose of an employee’s email be legal advice when she or he sends it to the lawyer as a secondary recipient? Some courts have answered this question by ruling that “cc’ing” an in-house attorney on employee-to-employee communications ipso facto means that the communication’s purpose could not be legal advice. For example, in a prisoner’s lawsuit alleging lack of medical care against a correctional facility, the Southern District of New York analyzed whether the
internal employee-to-employee communications that copied in-house counsel. Many of the emails were strings that copied in-house attorneys at some point with an “FYI” designation. The college argued that it expected its attorneys to review all emails sent to them for purposes of providing legal advice, whether received as the primary or secondary recipient. But it is difficult to prove that an email’s primary purpose is legal advice when the string expressly says that it is “for the lawyer’s information” and does not request a response. The institution also failed to submit an in-house lawyer’s declaration explaining why the email reached him and what he planned to do in response. Without any evidence of a legal advice purpose, the court rejected privilege protection and ordered production of the email strings. Although the college was unsuccessful, other parties have achieved privilege protection for emails that simply copied an in-house attorney. In one situation, a supervisor at a state governmental agency sent three emails to non-lawyers but copied the agency’s in-house counsel. In response to a privilege challenge to those emails, the supervisor submitted a declaration explaining that he “carbon copied two in-house attorneys . . . to obtain legal counsel.” Comparing the declaration with the emails’ content, the court agreed and upheld the privilege. And, yes, the supervisor used the phrase “carbon copied.” The takeaway is that while “carbon copy” is an antiquated phrase, it remains alive and well, wreaking havoc on privilege
Sending the email to the in-house lawyer as a “cc” or secondary recipient decreases the chances of privilege. privilege protected communications among doctors, nurses and prison administrators that copied lawyers. The court rejected privilege protection, stating that where an employee’s communication seeks a response from non-lawyer personnel, the communication is, by definition, not for the primary purpose of seeking legal advice, even if the employee copies an attorney. Similarly, in a products liability action, the Eastern District of Louisiana held that the primary purpose of emails simultaneously sent to lawyers and non-lawyers cannot be legal. Other courts do not take such a dogmatic approach, but still require the party asserting privilege over dual-purpose emails copying in-house counsel to prove that the communication’s primary purpose was related to legal advice. In one case, an Ivy League institution lost a privilege claim over BACK TO CONTENTS
claims in the electronic communication world. But we can reduce the potential privilege loss. Let’s train our employees that copying in-house lawyers on an email does not immunize the emails from discovery. Ask them to copy in-house lawyers with deliberative thought. If one believes it necessary to loop in a lawyer, mark the email as “privileged and confidential,” limit dissemination and specifically ask the attorney for a response. Remember that it is better, for privilege purposes, to forward an email to counsel rather than copying her or him. Better still, send an entirely separate email seeking the lawyer’s input. If in-house lawyers continue to receive unsolicited carbon copy emails (and they will), they should take the initiative and respond by stating that they understand the employee sent the email for legal advice purposes. A privilege-related response can often remedy what non-lawyer employees fail to do. Remember, when challenged in court, the in-house lawyer must be ready to prove via sworn testimony that she or he received the email communication for the primary purpose of rendering legal advice. So, have some evidence to support a declaration. Copy that?
Todd Presnell is a trial lawyer in Bradley’s Nashville office. He is the creator and author of the legal blog Presnell on Privileges, presnellonprivileges. com, and provides internal investigation and privilege consulting services to in-house legal departments. tpresnell@bradley.com
JANUARY 202 1 TODAYSGENERALCOUNSEL.COM
17
FEATURE
Using State Court Litigation Analytics By RICK MERRILL
18
TODAYSGENERALCOUNSEL.COM JANUARY 202 1
L
egal practice, even among general counsel, has not historically been a field that is subject to precise quantification. Legal department expenses are an exception, something all general counsel measure with precision lest they risk finding themselves measuring the length of their curricula vitae. However, new tools enable general counsel to measure and quantify things such as the experience and performance of outside law firms, the tendencies of judges and plaintiffs’ counsel, and how different jurisdictions compare with respect to litigation risk. These new AI-powered tools — state court litigation analytics platforms that analyze vast amounts of trial court data and documents — enable general counsel to gain new insights, measure previously invisible facts relevant to litigation management, and know things their competitors and opposing counsel might not know. Measuring outside law firm performance. Frequent litigation is a cost of doing business in the United States. Legal departments that effectively select and manage outside litigation counsel help their organizations reduce exposure and expenses. The old way (the way most organizations still do it) is selecting outside litigation counsel based on personal relationships, anecdote, and law firm reputations based on vague criteria. This results in inefficiencies — counsel mismatched to the matter or the judge, low-performing counsel chosen because of personal relationships, and money wasted. The new method of selecting outside litigation counsel for a state court matter relies on using BACK TO CONTENTS
a litigation analytics tool to determine which law firm in the relevant jurisdiction has the most experience with the type of case in front of the assigned judge or against specific plaintiffs’ counsel. Armed with that information, general counsel can make more informed selections of outside law firms. Why choose expensive, big law firm X when less expensive law firm Y has won 10 similar cases in front of the same judge over the last few years, or when six cases reached fast settlements against the plaintiffs’ firm? If a particular case lends itself to summary judgment, shouldn’t you consider hiring the firm that has won multiple summary judgment motions in front of the same judge on the same types of cases? If you are investigating a particular law firm, analyzing their client roster could uncover references that the firm might not provide. Let the data drive, or at least influence, the decision. Measuring judicial tendencies. It used to be impossible to meaningfully account for the differences between state court judges when managing a litigation portfolio. Is this judge bogged down with many cases and therefore slow? Does this judge grant most motions put in front of her, or does she tend to deny everything and push cases to trial? Does this judge show a demonstrable lean towards plaintiffs? Does this judge tend to rule in favor of parties like yours? All these questions can now be answered in state court litigation analytics platforms. If you know that the judge assigned to the case is among the slowest in the jurisdiction, you can budget accordingly. If you know that the judge rarely grants summary judgment in cases like yours, you can expand the budget and prepare BACK TO CONTENTS
for trial. If you know the judge tends to rule in favor of organizations like yours, you can better project a possible favorable outcome. Measuring the judge is now possible, and general counsel can reap significant benefits armed with such data. Measuring plaintiffs’ counsel’s tendencies. Just as judges used to be impossible to measure, so too were lawyers a mystery. Does this lawyer take all of his cases to trial or does he settle right away? Does plaintiffs’ counsel file lots of discovery motions and drag out fights, or does this lawyer rarely engage in substantive motion practice? Is this a plaintiffs’ lawyer to fear or one to fight? State court analytics platforms answer these questions. When you know in advance that the plaintiffs’ counsel on a slip and fall case is really just a demand-letter writer, then you can advance an aggressive settlement posture. If the data shows that opposing counsel actually takes cases to trial and has had some success, maybe even in front of the assigned judge, then you can authorize your defense counsel to engage in more motion practice and advance a realistic settlement posture. If the data shows that plaintiffs’ counsel tends to engage in lots of motion practice (for example, in discovery disputes), then you can allocate more budget in defense of the case. Knowledge of your opponent is helpful in any battle; and more knowledge than ever before is available to the general counsel armed with the right state court litigation analytics platform. Measuring your competitors. Finally, state court analytics platforms can provide insights into how your competitors deal with their state court litigation. Are you getting sued far more often
than a similar competitor in the same jurisdiction? Are you getting results from outside counsel that are worse than your competitors’? Is your competitor getting out of cases on summary judgment while you keep getting stuck in trial? Seeing what competitors’ litigation portfolios look like is a great way to assess risk and your organization’s response to it. Perhaps you’re getting sued more often because your HR policies are out of date compared to a competitor’s, or perhaps a spike in litigation in one jurisdiction, when other competitors are not seeing a similar spike, reflects a management problem in that region rather than an increase in litigation in that court system. Comparing your organization to others similarly situated is a great way to measure the effectiveness of your operation and that of your outside counsel. In sum, long gone are the days in which important, litigation-related decisions are made based on anecdote or tradition. New state court litigation analytics platforms make possible significant improvements in legal department decision-making.
Before founding Gavelytics, Rick Merrill spent the better part of a decade as a big law litigator, working primarily on large real estate and other commercial disputes. He received his law degree from the UCLA School of Law, where he was the Senior Articles Editor of the Journal of Law and Technology and a judicial extern for the California Superior Courts. rick@gavelytics.com
JANUARY 202 1 TODAYSGENERALCOUNSEL.COM
19
FEATURE
Let In-House Lawyers Focus on What They Do Best By SARVARTH MISRA
L
egal practitioners have to study law for years before they graduate, and then must continue to educate themselves. These innately human endeavors are required to be a lawyer. Yet the practice of law is on the precipice of being transformed by non-human phenomena — legal technology, artificial intelligence (AI) and automation. A professional life characterized by the latest technology may seem like a never-ending series of upgrades. The “cycle of obsolescence” may appear to accelerate every single year. There is also concern that machines or robots will replace legal positions altogether. Such technophobia is wholly unjustified. In fact, AI and automation are likely to lead to increased productivity and substantial cost savings within legal departments, as well as new legal positions. But the legal roles stemming from AI and automation will not entail tedious, repetitive and time-consuming projects. Instead, they promise to be evolved, engaging and rewarding.
THE DIFFERENCE BETWEEN AI AND AUTOMATION These days, the words “artificial intelligence” and “automation” are used interchangeably, but AI systems and automated systems remain distinctive concepts. AI
20
is a set of algorithms meshing to accomplish goals exclusively set by humans. It is tasked with thinking as a person would, only more quickly. AI is also expected to solve complex problems considered too tedious or time consuming for humans to complete repetitively. Think about the predictive analytics that Google Maps uses to determine how long your commute will be. A human could complete these complex, repetitive tasks, but they are more suited to intelligent machines. In a similar fashion, automation is the use of the latest technology to make repetitive, monotonous tasks and processes easy. Every device or machine that operates autonomously is manually configured following pre-programmed rules. Customer service, online banking, payment processing, auto-filling and e-signatures — the list of programmable and fixed automation is virtually endless. According to a recent Gartner survey of chief information officers, 60 percent have long-term plans for AI: 20 percent are trying out the technology; and four percent have already invested in it fully. Clearly, there is no better time for business leaders to think about digital workplace strategies that support legal professionals. Whereas AI can learn without the contexts that programming
TODAYSGENERALCOUNSEL.COM JANUARY 202 1
generally provides, automation needs a little more hand-holding, at least in the beginning. But without much intervention, both can carry out their primary function in the legal arena — speeding up and simplifying various processes so legal professionals can focus on more important tasks requiring a human touch. AI is harnessing computing power to alter the way legal professionals work in medium and large-sized organizations; and competition between traditional and AI-driven companies is happening across industries. It is essential to know how to incorporate AI and automation into operations. This involves more than building data pipelines, deploying enterprise software and experimenting with algorithms. It requires “re-architecting” operating models and necessitates bringing together AI technology and people. That interrelationship will soon be crucial within legal departments, and will augment and simplify a variety of legal positions.
SPEEDING UP LEGAL TASKS Imagine if corporate attorneys did not have to get involved in every contract. What if the entire organization — sales, procurement, marketing, facilities, HR — could generate and manage its BACK TO CONTENTS
own standard agreements with the help of AI instead? Legal teams would then only need to approve terms and conditions, thereby significantly speeding up the contracting process. Because time is of the essence for corporate legal teams, more than 33 percent of Gartner respondents reported that improving the speed of legal work is their primary mandate. About one-quarter said that they had achieved more than a 50 percent improvement after automating aspects of their legal practices. In some cases, that increase exceeded 90 percent, thanks to AI-based digital tools. Contract management systems that are entirely driven by AI offer automated contract templates providing data-rich analytics about various terms and conditions. Whenever sales representatives need a standard sales contract, they can simply answer a series of questions and get one automatically generated. With these legal tools in hand, not only can other departments manage contracts efficiently and effectively but corporate attorneys BACK TO CONTENTS
do not have to be involved in every standard contract creation. That is one less routine task for the in-house attorney and gives corporate lawyers the opportunity to focus less on mundane work and more on value-added projects. This can curb the need to outsource important legal work, saving on costly fees. Equally important, legal professionals can view their work as having a direct impact on the business. When it comes to the return on investment (ROI) on AI and automation, you do not need an ROI calculator or a prestigious legal degree to see how they pay solid dividends. There is little else needed to convince most CEOs. In August 2019, Gartner published research showing how AI and automation can help the legal profession accomplish “more for less.” Consider that 42 percent of the in-house legal team respondents said that automation resulted in a greater-than-expected ROI; 89 percent reported that it met or exceeded their expected ROI; and only six percent found that it provided a lower
ROI than originally anticipated. Sixty-eight percent indicated a payback time on financial investments in legal automation to be between one and three years. General counsel and their legal teams can free themselves to complete the higher-value, strategic work that they were trained to do — helping to steer important decisions concerning the business and driving revenue growth. They can challenge the tired perception of legal as a cost center by molding it into a true value center. This requires employing the latest AI-powered platforms and changing the way they think about legal automation.
Sarvarth Misra is Co-Founder and CEO of ContractPodAi®. He is a corporate and commercial lawyer by background, and has spoken at numerous legal technology and legal services conferences. sarvarth.misra@contractpodai.com
JANUARY 202 1 TODAYSGENERALCOUNSEL.COM
21
Join our thought leading, on-demand webinars
LEGAL TEAMS BEWARE: GROWING RISKS OF USING TEAMS, SLACK, ETC. Download Webinar
TOP 5 DISCOVERY SANCTIONS OF 2020 Download Webinar
GIVE ME DATA OR GIVE ME DEATH – HOW LEGAL DEPARTMENTS USE DATA TO SURVIVE Download Webinar
LEGAL TECH TRENDS IN 2021: MEETING THE CHALLENGES OF THE MODERN WORKPLACE Download Webinar
THE GENERAL COUNSEL REPORT: HOW THE EVENTS OF 2020 HAVE IMPACTED IN-HOUSE LEGAL TEAMS AND THE ROLE OF GC Download Webinar
Delivering high-quality content and topics that are valuable to increasing your business acumen. Listen/view at your own pace, and download substantive materials related to the topics.
CL ICK HERE TO VIEW MORE ON-DEMAND WEBINARS
TODAYSGENERALCOUNSEL.COM/ WEBINARS @TodaysGC
Follow us
Like us
