New York’s New Privilege Log Rule.

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Rule Limiting Privilege Log Practice to Take Effect, by Suevon Lee, New York Commercial Litigation Insider Blog

http://tinyurl.com/p8wwuhq

In an age of exploding electronic discovery that has multiplied the cost and scope of document review, litigants in New York’s Commercial Division will soon have the benefit of revised privilege log practice.

Starting September 2, new Rule 11-b, signed Tuesday by Chief Administrative Judge Gail Prudenti, will instruct parties to meet at the outset of the case and afterward to discuss the scope and parameters of privilege review. It also will strongly encourage using categorized designations for documents as opposed to itemized listings to help streamline the process.

Parties who resist the categorized approach may be subject to attorney fees upon a showing of good cause by the other side or a protective order from the judge.

Modeled after guidelines set forth in such jurisdictions as the Southern District of New York and Delaware Court of Chancery, the rule offers ‘a meaningful way for courts and parties to assess the assertion of privilege,’ said David H. Tennant, a partner at Nixon Peabody, who co-drafted the language with Jonathan Lupkin, of Rakower Lupkin. They are members of an advisory group charged with proposing changes to Commercial Division practice to offer a more efficient and cost-effective forum for litigants and their business clients. . . .

More Yummy Candy for Writers.

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UW Madison Writer’s Handbook, The Writing Center @ The University of Wisconsin-Madison

http://writing.wisc.edu/Handbook/index.html

For all writers, I strongly recommend a review of all the sections under “Grammar and Punctuation,” but especially: “Subject-Verb Agreement,” “How to Proofread,” “Twelve Common Errors: An Editing Checklist,” and “Clear, Concise Sentences.”

If you are a legal writer, please note that this style manual’s rules on citations are not in sync with The Bluebook, ALWD, or court rules. -CCE

Lawyer Explains How TrialPad 4.0 Made Trial Presentation A Piece of Cake.

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TrialPad 4.0: Trial Presentation Made Easy, by Todd Hendrickson, Lawyerist Blog

http://lawyerist.com/74651/trialpad-trial-presentation/

I recently put TrialPad 4.0 through its paces during  a two-week trial — but not from the start. As in the past, I felt to overwhelmed to add figure out a new app to my trial prep to-do list.

So I started trial using Acrobat to display documents. I am very comfortable with Acrobat, and I knew I would not have to wonder about how to find a particular feature or function in the middle of trial.

After all, like most paperless lawyers, I use Acrobat on a daily basis. But by day two of what I knew would be a two-week trial, I was frustrated with the limitations of Acrobat, particularly the inability to do a call-out on the fly. This was hampering my ability to really emphasize key pieces of evidence.

A heavenly light should have descended.

I had a copy of TrialPad from Ian O’Flaherty, who developed it. Ian was kind enough to provide me with a code to download TrialPad at no cost. This is probably why I felt no need to use it, since I wasn’t invested in it. But now I had to get up and running overnight if I wanted to use something better than Acrobat during my trial. And I did get up and running overnight. I went back to my hotel room, loaded up the documents I knew I would be working with the next day, ran through the process of presenting and annotating, and then set back to prepare for the next day of trial.

With more than a little trepidation, I hooked my iPad up to my projector the next day at trial.

A heavenly light should have descended. I’m not kidding, TrialPad was nearly magical. To say that ease of use is built in is a vast understatement. . . .

Texas Prosecutor Fired for Using Racial Remarks In “Batson Challenge.”

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Travis County Prosecutor Fired Over Racial Remarks, by Tom Crane, San Antonio Employment Law Blog

http://tinyurl.com/o3m82b4

Poor choice of words, bad judgment, racially inappropriate or all three? -CCE

The ’Batson challenge’ allows a lawyer to challenge the strike of a potential jury member. The challenge is based on the decision in Batson v. Kentucky, 476 U.S. 70 (1986), which found it unconstitutional to strike a potential jury member on the basis of race. The Batson challenge does not require much. So long as the lawyer can articulate a non-discriminatory reason for the peremptory strike, then the strike will likely stand.  A prosecutor, Steve Brand, in Travis County struck a potential jury member because she was a member of the NAACP, because she wanted to be a member of the jury, and because she had a link on her Facebook page to Negro Motorist Green Book, a book for safe travel during the Jim Crow era. Mr. Brand said he wanted to avoid an having an ’activist’ on the jury and would have done the same in regard to a perceived white activist. . . .

ProPublica’s Ongoing Series and Investigation Into Medicare Waste And Fraud.

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Fanny Pack Mixup Unravels Massive Medicare Fraud Scheme, by Charles Ornstein, ProPublica

http://www.propublica.org/article/fanny-pack-mixup-unravels-massive-medicare-fraud-scheme

This article is part of an ongoing investigation by ProPublica into Medicare fraud. This is just one of several articles currently at ProPublica about its investigation. -CCE

Two secretaries in a doctor’s office have pleaded guilty and a pharmacy owner faces charges in a scam that Medicare allowed to thrive for more than two years.

The fraud scheme began to unravel last fall, with the discovery of a misdirected stack of bogus prescriptions — and a suspicious spike in Medicare drug spending tied to a doctor in Key Biscayne, Fla.

Now it’s led to two guilty pleas, as well as an ongoing criminal case against a pharmacy owner.

Last year, ProPublica chronicled how lax oversight had led to rampant waste and fraud in Medicare’s prescription drug program, known as Part D. As part of that series, we wrote about Dr. Carmen Ortiz-Butcher, a kidney specialist whose Part D prescriptions soared from $282,000 in 2010 to $4 million the following year. The value of her prescriptions rose to nearly $5 million in 2012, the most recent year available.

But no one in Medicare bothered to ask her about the seemingly huge change in her practice, Ortiz-Butcher’s attorney said. She stumbled across a sign of trouble last September, after asking a staffer to mail a fanny pack to her brother. But instead of receiving the pack, he received a package of prescriptions purportedly signed by the doctor, lawyer Robert Mayer said last year. Ortiz-Butcher immediately alerted authorities.

Since then, investigators have uncovered a web of interrelated scams that, together, cost the federal government up to $7 million, documents show. . . .

Android Users – Good Advice And Alternative Options For Google Calendar Sync.

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How to: Alternative Options for Google Calendar Sync, by Jeffrey Taylor, The Droid Lawyer Blog

http://tinyurl.com/q25996p

Android users who sync their Google calendars with Outlook received a shocking email:

Important Announcement about Google Calendar Sync

Almost two years ago, we announced that we ended support for Google Calendar Sync. Starting on August 1, 2014, this app will no longer sync events between your Google Calendar and Microsoft Outlook Calendar.

As a Google Apps for Business, Education, or Government customer, you can use Google Apps Sync for Microsoft Outlook®.

Follow these instructions to uninstall Google Calendar Sync from your computer.

– The Calendar Team

This is frustrating, because as some folks point out, Microsoft should provide this integration for Outlook users. But the truth is, instead of helping its loyal Android customers, Microsoft wants more people using Windows phones and Office 365. This news makes many Android-Outlook users want to abandon their Android devices all together.

Purely out of coincidence, I have a local friend who emailed me a similar question about syncing his calendar with Outlook:

You know that I am fairly stupid when it comes to this stuff!  LOL!  I use [a big name telephone company] as my primary email, and too many people have it to change it after so many years.  I guess I could keep that as my primary email address and just use Google Calendar exclusively.  I just hate to have to log in to use the calendar.  Lazy I guess.  I do, however, also have a Gmail address!  Any suggestions other than ‘using all of Google’s products’?

Stop the insanity: software solutions

There are a number of third party applications available for syncing Google Calendar with Outlook. However, a lot of questions remain about whether Google Calendar will still sync with third party programs.

If you want to test them, here’s a short list of some programs with good reviews:

•gSyncit ($19.99 single license)

•Outlook4Gmail ($19.99 single license)

•Calendar Sync Pro for Outlook ($9.99)

•synqYa

•CompanionLink ($49.95)

I’m not sure how well these will work after the August 1 deadline, though gSyncit indicates they’ve rewritten their program to coordinate with Google’s API demands. If I was going to pick an option, I’d probably select gSyncit based on that statement.

I also suggest you keep up to date with any advances by following this Google products forum thread.

Submit yourself to “the Borg”

I think my friend’s easiest option is to commit himself to Google’s services, and here’s why.

First, no attorneys should be using free Google accounts for their business work. Thus, if you’re using a yourname@gmail.com to send and receive firm and client related information, stop right now. Sign up for a Google Apps account — ask me for a referral partner discount discount code — that offers more features (including no scanning), security, and encryption of email. Having a Google Apps account also enables you to access Google Apps Sync for Microsoft Outlook. . . .

Don’t stop here! There’s more. -CCE

Casino Valet Service Not Liable For Returning Car To Intoxicated Driver.

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No Liability for Valet Service for Returning Car to Visibly Intoxicated Patron, by Daniel E. Cummins, TORT TALK

http://www.torttalk.com/2014/07/no-liability-for-valet-service-for.html

In its recent decision in the case of Moranko v. Downs Racing LP, 2014 Pa.Super. 128 (Pa. Super. June 24, 2014 Panella, J., Mundy, J., and Platt, J.)(Op. by Panella, J.), the Pennsylvania Superior Court held that Pennsylvania law does not impose a duty upon a casino’s valet service to withhold the keys from a motorist if that person appears to be visibly intoxicated. . . .

This Time, Employer’s Social Media Policy Does Not Violate Employee’s Rights.

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Employer’s Social Media Policy Found Not To Violate Employees’ Rights, by Jason Shinn of Shinn Legal, PLC, Michigan Employment Law Advisor

http://tinyurl.com/q8pogjs

A recent social media case involving the NLRB should be cause for celebration for employers. Specifically, in Landry’s Inc., Case No. 32-CA-118213 (June 26, 2014), an NLRB administrative law judge (ALJ) had found a social media policy concerning its subsidiary, Bubba Gump Shrimp Co. Restaurants, Inc., did not violate the National Labor Relations Act (NLRA).

Initially, the General Counsel argued that Bubba Gump’s social media policy infringed on employee’s rights under the NLRA because it would tend to prohibit employees from discussing terms and conditions of employment with coworkers or third parties. That social media stated as follows:

‘While your free time is generally not subject to any restriction by the Company, the Company urges all employees not to post information regarding the Company, their jobs, or other employees which could lead to morale issues in the workplace or detrimentally affect the Company’s business. This can be accomplished by always thinking before you post, being civil to others and their opinions, and not posting personal information about others unless you have received their permission.’

The ALJ agreed that without ‘more,’ the first sentence could violate the NLRA. But the ALJ noted that the social media policy did not outright restrict speech on job related issues – job related subject matters – but, instead, the manner in which such issues are being discussed and debated, i.e., being civil to others and their opinions:

‘Without more, it would be reasonable for employees reading this language to conclude that the Respondent generally frowns upon all job-related postings of any type. However, the cautionary language is modified by the language in the next sentences which may be understood to clarify that the 40 avoidance of morale problems may be ‘accomplished’ by simply being civil to others and their opinions.’

Employer Take-Aways

From an employer’s perspective this case is a good result. But it is also a reminder that the NLRB’s General Counsel continues to closely scrutinize employers’ social media policies. For this reason, it continues to be important to carefully draft social media policies that will give ALJs the opportunity to sensibly read the policies so as to not find a violation of employees’ rights under the NLRA. . . .

The Latest Changes at the SEC.

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What’s New on the SEC Website

http://www.sec.gov/news/whatsnew/wn-today.shtml

 This [link] provides a daily list of the most recent materials posted to the SEC website. Note that the official release date of a document may differ from the posting date, in which case, the release date is indicated in parentheses.

New and Amended California Court Rules and Local Rules.

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California Courts, The Judicial Branch of California, New & Amended Court Rules

http://www.courts.ca.gov/rules.htm

California County Court Local Rules effective July 1, 2014:

http://www.courts.ca.gov/3027.htm

Alameda County, Butte County, Calaveras County, Contra Costa County, El Dorado County, Fresno County, Humboldt County, Imperial County, Kern County, Kings County, Lake County, Lassen County, Los Angeles County, Madera County, Marin County, Merced County, Monterey County, Napa County, Nevada County, Orange County, Placer County, Riverside County, Sacramento County, San Bernardino County, San Diego County, San Francisco County, San Joaquin County, San Luis Obispo County, San Mateo County, Santa Barbara County, Santa Clara County, Santa Cruz County, Shasta County, Siskiyou County, Solano County, Sonoma County, Stanislaus County, Tulare County. Tuolumne County, Ventura County, and Yuba County. -CCE

Children as Witnesses.

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The Child as a Witness, from Child Welfare Information Gateway

https://www.childwelfare.gov/pubs/usermanuals/courts_92/courtsk.cfm

Good, basic information. I recommend that you check out the entire website. This is only a taste of what it contains. -CCE

Is A Blink A Dying Declaration?

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Blink: Court of Special Appeals of Maryland Finds Eye Blinking by Shooting Victim Admissible as Dying Declaration, by Colin Miller, EvidenceProf Blog

http://tinyurl.com/o3ag2ah

On November 26, 2010, Prince George’s County Detective Latasha Green visited the Shock Trauma Unit to see if Pate could identify a picture of his shooter from a photographic array. Just prior to the session, Nurse Keener had asked Pate a series of questions to determine whether he was ’alert and oriented.’ She determined that he was. Nurse Keener later testified that blinking hard is a primary method of communication for patients who are unable to speak. She elaborated on how the technique works.

Detective Green showed Pate a series of six photographs and asked him to blink hard if he saw a picture of the person who shot him. Pate blinked hard when he was shown the third picture in the photographic array but did not blink hard when shown any of the other five pictures. The third photograph was that of the appellee,  Jermaine Hailes. The photographic array procedure was recorded on videotape and was entered into evidence at the suppression hearing. State v. Hailes, 2014 WL 2191405 (Md.App. 2014).

Was Pate’s eye blinking admissible as a dying declaration? . . . .

The New ALWD Citation Guide.

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The Inside Scoop About The New ALWD Citation Guide, by Legal Writing Prof, Legal Writing Prof Blog

http://tinyurl.com/n9beufc

Let’s not forget that the 20th edition of the Bluebook is coming, although the publication date has yet to be announced. -CCE

At the LWI conference, members got inside information about ALWD’s new citation guide. It’s no longer called a manual–the title of the fifth edition is the ALWD Guide to Legal Citation. Chief editor Coleen Barger and contributor Brooke Bowman explained that the new guide has eliminated the differences between it and the Bluebook. That means, among other things, that large-and-small caps are now prescribed for certain law review citations and abbreviations and citations have been standardized to comport with traditional formats.  But the new guide will be easier to use than the Bluebook. Plentiful symbols clarify when spaces are needed, and law review formats are integrated into the subject matter sections but clearly labeled by a title, an identifying marginal line, and a warning symbol.

A companion site includes exercises that students who purchase the book can access. An on-line teacher’s manual will be available soon and will include comparison charts between the fourth and fifth editions and between the fifth edition and the Bluebook. . . .

Internet’s Largest, Comprehensive Directory, and Search Engine for Acronyms, Abbreviations. and Initialisms.

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Abbreviations.com, a Member of the Stands4 Network

http://www.abbreviations.com/

What the heck is an initialism? Happily, Mark Nichol at DailyWritingTips Blog has a complete explanation here: http://www.dailywritingtips.com/initialisms-and-acronyms/. -CCE

We are the world’s largest and most comprehensive directory and search engine for acronyms, abbreviations and initialisms on the Internet. Abbreviations.com holds hundreds of thousands of entries organized by a large variety of categories from computing and the Web to governmental, medicine and business and it is maintained and expanded by a large community of passionate editors. Read more about our awards and press coverage.

Web Resources for Illinois Appellate Lawyers.

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[Illinois] Appellate Lawyer Association Web Resources

http://www.applawyers.org/resources.html

This section includes valuable lists of links to:

  • Illinois references, such as a List of Courts in the State, Local Bar Associations and Law Schools

  • Law-Related Directories and Portals

  • A Roster of Research Sites

  • Providers of CLE Courses

  • Legal Employment Resources

The Capitol Steps Are On Tonight!

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The Capitol Steps Radio Show Tonight!,  from NPR.

If you like political satire set to music, tune in to the show that started at 7 p.m. C.S.T. tonight to enjoy The Capitol Steps radio show. Great entertainment for the Fourth of July before the fireworks. -CCE

http://www.capsteps.com/radio/

 

Four More Ways Soon-To-Be-Divorced Spouses May Use To Conceal Assets.

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Divorce & Hidden Money: Four Methods Spouses Sometimes Use To Conceal Assets, by Fred Abrams, Asset Search Blog

http://tinyurl.com/lf8cndm

This is the eighth post in the ‘Divorce & Hidden Money’ series.  Like ‘Four Asset Concealment Tools’ and ‘Four Ways Assets Can Be Secretly Transferred,’ the post reveals methods a spouse may use to hide marital assets and keep more than his/her fair share of the marital estate. . . .

How To Make a Timeline Exhibit Using Microsoft Excel.

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Creating A Custom Timeline In Excel, by Deborah Savadra, Legal Office Guru Blog

http://legalofficeguru.com/custom-timeline-in-excel/

If you do not have special litigation software and need to create a timeline exhibit for your case, hang on to this post. It will come in handy, as will the Legal Office Guru Blog.  If you cannot find what you need there, try the Addictive Tips Blog – another good “how to” resource. -CCE

Some Of The Common Mistakes Made In Appeals.

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Appeal in Error: Common Mistakes Made in Appeals, by Scott P. Stolley of Thompson & Knight LLP, Findlaw.com

http://tinyurl.com/knotqwo

Some lawyers prefer trial litigation. Some prefer appellate law. For those who enjoy litigation, need to appeal, but don’t want to do it themselves, hire an appellate lawyer. There are appellate specialists out there who know the in’s and out’s of appellate procedure.

Lawyers who specialize in appellate law often have experience working for the justices or former justices of that court. It gives them an unique insight into the personalities and proclivities of that court. Sometimes that is a useful thing. – CCE

After a trial, the losing party often has too much at stake, emotionally or financially, to let the verdict stand unchallenged. Appeal is the next option, but many litigants do not fully understand how different an appeal is from a trial. They may also underestimate the differences between trial lawyers and appellate lawyers. These differences may be overlooked when inexperienced litigants launch an appeal. The following is a discussion of common mistakes that such litigants regularly make. . . .

Style Manuals for the CIA and NSA SIGNIT and More.

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CIA Style Manual Available Online, by Sabrina I. Pacifici, beSpacific Blog

http://tinyurl.com/mshotwq

If you are not familiar with Ms. Pacifici, I encourage you to check out her blog. She is an extraordinary researcher. These materials are interesting enough on their own, but you will see that the links take you to the FOIA Resources at The National Security Archive.  The Government Attic Blog is also worth a good, long look. -CCE

Via governmentattic.org:

  • ‘National Security Counselors law firm has obtained a copy of the CIA Directorate of Intelligence Style Manual, Eighth Edition, 2011.  It is entitled Style Manual & Writers Guide for Intelligence Publications. The CIA Guide is not alone.  Each of the members of the Intelligence Community ­IC ­ have one or more Style Manuals to conform the reports and documents of that agency to a consistent writing style and usage.  This is highly important to achieving clear and unambiguous communications of such matters.

  • Here is another example: the NSA SIGINT Style Guide

  • The National Security Counselors web site publishes a large number of interesting documents released under FOIA, or under litigation arising from FOIA requests.’

Classic Writing Tips From C.S. Lewis.

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5 Writing Tips by C.S. Lewis, the Purveyor of Childhood, by Scott Schwertly, the Founder and CEO of Ethos3

http://tinyurl.com/qzawhfs

It’s pretty likely that C.S. Lewis brought you a little bit of happiness when you were a child. As author of the ‘Chronicles of Naria’ series, C.S. Lewis created one of the most beloved children series of all time. As a result, he got loads of fan mail from his biggest fans: children. And being the nice purveyor of childhood glee that he was, he managed to respond to many of the letters, including one from Joan Lancaster, in which he included several tips on writing. Let’s see what we can learn about presentations from his poignant advice.

1. Always try to use the language so as to make quite clear what you mean and make sure your sentence couldn’t mean anything else.

This is great advice for the presenter as our job is disseminate information as clearly and simply as possible. In order to do so, use language that tells the audience what they need to know in the simplest way possible. Say what you want to say as simply as possible. Don’t overcomplicate your language for no reason.

2. Always prefer the plain direct word to the long, vague one. Don’t implement promises, but keep them.

This goes hand in hand with Lewis’s previous nugget of advice. Use plain, direct language in your presentation. You won’t sound smarter by using a ten-dollar word when a five-dollar word will do. Rather, you might come across as pretentious. Don’t alienate your audience with obscure language. Be as direct as possible.

3. Never use abstract nouns when concrete ones will do. If you mean ‘More people died’ don’t say ‘Mortality rose.’

Mr. Lewis is adamant about the importance of clear, direct language, isn’t he? Minimize abstraction as much as possible with the language you use. Be as clear and concrete as possible.

4. In writing. Don’t use adjectives which merely tell us how you want us to feel about the thing you are describing. I mean, instead of telling us a thing was ‘terrible,’ describe it so that we’ll be terrified. Don’t say it was ‘delightful’; make us say ‘delightfu’ when we’ve read the description. You see, all those words (horrifying, wonderful, hideous, exquisite) are only like saying to your readers, ‘Please will you do my job for me.’

This may be the best bit of Lewis’s advice, as it’s basically a snarky version of ‘show, don’t tell.’ Engage your audience by using vivid language that describes a situation instead of simply telling the audience how it made you feel using a range of blasé adjectives. Remember Jerry Weissman’s advice: Don’t make the audience think. Describe situations so clearly and in such a compelling nature that the audience won’t have any question as to what happened or how it made you feel.

5. Don’t use words too big for the subject. Don’t say ‘infinitely’ when you mean ‘very’; otherwise you’ll have no word left when you want to talk about something really infinite.

Lewis’s last piece of advice again addresses the need to use clear, precise language. Don’t exaggerate in your description of something as that would be an easy way to mislead your audience. Above all, if we are to follow Lewis’s advice in our presentations, use language that is as direct and to-the-point as possible. Your presentation will be much more accessible and well-received if you eliminate abstract, unclear language altogether.

George Orwell’s “Politics and the English Language”

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Politics and the English Language, George Orwell’s Library

http://tinyurl.com/nsagx

Orwell’s 1946 essay, “Politics and the English Language” is a classic. Mr. Orwell actually had six, not five, excellent rules for effective writing. Follow these rules, and you cannot go wrong. -CCE

1. Never use a metaphor, simile, or other figure of speech which you are used to seeing in print.

2. Never use a long word where a short one will do.

3. If it is possible to cut a word out, always cut it out.

4. Never use the passive where you can use the active.

5. Never use a foreign phrase, a scientific word, or a jargon word if you can think of an everyday English equivalent.

6. Break any of these rules sooner than saying anything outright barbarous.

 

Is It Time For A “Bring Your Own Device” Policy for Your Law Office?

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Mobile Device Security for Lawyers: How Solos and Small Firms can Ethically Allow Bring Your Own Device, by Will Harrelson, Curo Legal Blog (with hat tip to Jeff Richardson, iPhone J.D. Blog!)

http://tinyurl.com/lrrnp7g

The Start of Bring Your Own Device Policies

It really is the iPhone’s fault. Yes, Apple is to blame for designing the most desirable piece of technology of the last decade. So desirable, in fact, that employees of all stripes requested (and, often, begged) their IT departments to toss the increasingly-‘corporate’ Blackberry out the window and allow the use of their personal iPhones for corporate emails and calls. As a result, we have been living in the age of ‘Bring Your Own Device’ where employees use a single personal mobile phone (or tablet) for both their personal email, texting, and social media while also using it for work email, word processing, and other enterprise applications.

Before the Bring Your Own Device era, a company’s greatest out-of-office security concern was an employee who left a briefcase in a taxi. Today, the worry is an employee misplacing a device the size of wallet containing almost limitless amounts of data that criminals or hackers would easily and quickly exploit if given the chance. Clearly, there is an obvious financial motivation for all businesses to protect their own or customer’s sensitive data.

However, lawyers face particular ethical consequences if they fail to take reasonable efforts to either investigate the technologies that they implement or protect their client’s confidential information. . . .

Why Defendant Former Employers Do Not Get Mirror-Image of Plaintiff’s Personal Computer.

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Proportionality Prevents Mirror Imaging of Family Computers, by Joshua Gilliland, Bow Tie Law’s Blog

http://tinyurl.com/osvw3ws

The Defendants in employment litigation sought the mirror imaging of the Plaintiff’s personal computers three years after she had been terminated. The crux of the eDiscovery centered on the former employee forwarding emails from her supervisors email to her personal account, which the Defendants claimed were lost by the Plaintiff. The Court denied the motion to compel. Downs v. Va. Health Sys., 2014 U.S. Dist. LEXIS 74415, 6-11 (W.D. Va. June 2, 2014).

Judge James G. Welsh did a very nice job of summarizing ESI relevant to a case,proportionality, and the rules for conducting forensic analysis on an opposing party’s hard drive. The Court held the following:

(1) Nothing in the record suggests any willful failure, fault or bad faith by the plaintiff on her discovery obligations that would justify the requested computer forensics examination;

(2) The “mirror-imaging” of the plaintiff’s family computers three years after her termination raises significant issues of confidentiality and privacy;

(3) There was no duty on the part of the plaintiff to preserve her family computers as evidence;

(4) Principles of proportionality direct that the requested discovery is not sufficiently important to warrant the potential burden or expense in this case; and

(5) On the current record that the defendants have failed to justify a broad, and frankly drastic, forensic computer examination of the plaintiff’s two family computers.

Downs, at *9-10, referencing McCurdy Group v. Am. Biomedical Group, Inc., 9 Fed. Appx. 822, 831 (10th Cir. 2001); see also Basile Baumann Prost Cole & Assocs., Inc. v. BBP & Assocs. LLC, 2013 U.S. Dist. LEXIS 51264, *8 (D. Md. Apr. 9, 2013). . . .