“Power Corrupts. PowerPoint Corrupts Absolutely.” – The Internet
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Transcript of “Power Corrupts. PowerPoint Corrupts Absolutely.” – The Internet
“Power Corrupts. PowerPoint Corrupts Absolutely.”
– The Internet
Four Horsemen of the Digital, Ethical Apocalypse
Alvin F. Lindsay
Hogan Lovells
Miami, Florida
Mining for Data
Blowing the Privilege
Record Deletion Failure
Misleading Presentations
Blowing the Privilege
Duty to Protect the Privilege
4-1.6 Confidentiality of Information
A lawyer shall not reveal information relating to representation of a client . . . unless the client consents after disclosure to the client.
Blowing The Privilege: Never Been Easier
Recent Headlines
Recent Headlines
Recent Headlines
Recent Headlines
1. PW protect all devices
2. Encode critical data
3. Watch what you Tweet
4. Sanitize that e-mail
5. Don’t e-file private data
6. Be aware of your data
Mining for Data
Metadata: Data About the Data
Embedded Data: Data in the Data
Florida Rule of Professional Conduct 4-4.4(b)
A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.
Metadata Mining
1. Don’t look for hidden data
2. If you find, notify
3. Sanitize that e-mail
Record Deletion Failure
When Can Data be Deleted?
• Governments permit
• Internal policies permit
• Litigation status permits
Government Document Preservation Requirements
International, Federal, State
International Requirements
• Privacy laws– EU Data Directive 95/46/EC
• Blocking statutes– French Penal Code Law No. 80-538
Federal Requirements
• Federal Records Act, 44 U.S.C. 3101 – policies, decisions, important meetings, agency
action, etc.
• Family and Medical Leave Act, 29 CFR 825.500– employer obligations under the act
Federal Requirements
• Securities Exchange Act of 1934 § 17(a) – broker-dealers records on customers, purchases and
sales, associated persons, complaints, etc.
• Sarbanes Oxley §§ 802, 1102– public companies and accountants to preserve financial
records for seven years
State Requirements
(805 ILCS 410/2) (from Ch. 116, par. 60) Sec. 2. Unless express provision is made by law for the period during which they must be preserved or for the condition upon which they may be destroyed, business records which persons by the laws of this state are required to keep or preserve may be destroyed after the expiration of three years from the making of such records without constituting an offense under such laws. This section does not apply to minute books of corporations nor to records of sales or other transactions involving weapons, explosives, poisons or other dangerous articles or substances capable of use in the commission of crimes. (Source: Laws 1957, p. 123.)
Uniform Preservation of Private Business Records Act.
Typical Healthcare Business Subject To:
1. Department of Labor (DOL)2. Equal Employment Opportunity Commission
(EEOC)3. Occupational Safety and Health Administration
(OSHA)4. Food and Drug Administration (FDA)5. Veterans Health Administration (VHA)6. Nuclear Regulatory Administration (NRA)7. State (real estate, pharmacy, accounting)
1. Know your business
2. Know international, federal, state law
3. Define a retention program
4. Stick to it
Internal Policies
Make and Follow Retention Plan
Recommended Retention Periods
Record Suggested Period of Retention
Remarks
Administrative Offices
Accident/incident reports 6 years
Annual reports Permanent
Appraisal reports Permanent
Articles of Incorporation Permanent
Birth records Permanent
Bylaws Permanent
Daily census 5 years
Communicable disease reports 3 years
Construction records Permanent
Correspondence 5 yearsKeep only that of continuing interest. Review annually.
Licenses, permits, contracts Permanent
Admissions and Discharges
Listings 6 years
Register Permanent
Business Office
Alien-statement of income paid As long as contents may be material in the administration of an Internal Revenue Law26
Bank deposits 2 years
Bank statements 6 years
Budgets 5 years
Cash receipts 6 years
Cashier’s tapes 6 years
Charge (slips) to patients 5 years
Check vouchers 10 years
Checks (cancelled) 7 years
Check registers 6 years
Correspondence Credit and collections General Insurance
7 years6 years 4 years
Litigation Preservation Requirement
Zubulake v. UBS Warburg LLC
“Litigation Hold”
“Monitor Compliance”
“Data Policies and Architecture”
“Key Players”
“Safety of Data”
“Spoliation”
Zubulake V
“Now that the key issues have been addressed and national standards are developing, parties and their counsel are fully on notice of their responsibility to preserve and produce electronically stored information.”
1.Establish and monitor litigation hold
2.Know retention policy
3.Know computer architecture
3.Ensure data safety
4.Take advantage of Rule 26(f) conference
5.Address e-discovery early in case
Misleading Presentation
Fairness to Opposing Party and CounselA lawyer shall not:
(a) unlawfully obstruct another party's access to evidence or otherwise unlawfully alter. . . a document or other material that the lawyer knows or reasonably should know is relevant to a pending or a reasonably foreseeable proceeding; [or] (b) fabricate evidence,
Florida Rule of Professional Conduct 4-3.4
Candor Toward the Tribunal
A lawyer shall not knowingly . . . make a false statement of material fact or law to a tribunal . . . .
Florida Rule of Professional Conduct 4-3.3
Expediting Litigation
A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of a client.
Florida Rule of Professional Conduct 4-3.2
CASELOAD STANDARDS
Annual Non-Capital Felony Caseload
0
50
100
150
200
250
300
350
400
450
ABA FPDA B&B FGC PD-11
“Inappropriate”
MCAFelony Mental Health
Bond Hearings
Drug CourtJSAP
ERU
Training Attorneys
Supervising Attorneys
MCAFelony Mental Health
Bond Hearings
Drug CourtJSAP
ERU
Division Attorneys
Training Attorneys
Supervising Attorneys
“Appropriate”
Always take the high road . . .
Lagniappe
TechnologyInLitigation.com
Thank you!
Alvin F. [email protected]