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According to last years’ Midlevel Associates Survey at Law.com, associates were excited about all of the new gadgets and software being made available to them. For a brief period, it seemed like new devices, software, and even the latest Windows upgrade might finally give overworked associates the technology they needed. Predictably, this year’s survey found that associates are sick of all the tech upgrades.

It shouldn’t be a surprise that the Windows 7 upgrade many lawyers endured last year was more of a pain than a salvation. But there was plenty of exciting technology that should have at least made lawyers happy, right? Not really, the report found. “In short, associates were underwhelmed,” as one respondent from Akin Gump Strauss Hauer & Feld said in an interview. “We all get spoiled with so many tech advances and then, nothing really happened.”

We can’t help but point out that there is an easy way to avoid tech upgrade fatigue. Simply, never upgrade your software. Using cloud software has a lot of advantages over traditional software- lower costsecurity, no on-staff support, and unlimited scalability. But one of the best features is that users never, never, never, never, ever have to suffer through an upgrade. As long as your browser is up-to-date, you are always accessing the most current version of any cloud software.

Just because a software solution is built for the cloud does not make it best-of-breed. But a cloud solution will always be better than a software solution that is locally hosted and requires endless patches, updates, and upgrades.

Nextpoint "Expert Witness" PostNextpoint recently spoke with Steve Wernikoff, attorney with the Federal Trade Commission in Chicago who specializes in consumer protection matters involving e-commerce and emerging technologies. Steve has led numerous investigations and civil prosecutions involving online advertising, spam, mobile marketing, financial fraud, telemarketing, and data privacy and security. He also has served as an adjunct faculty member at two Chicago law schools where he has taught courses involving Internet fraud, online advertising, and privacy issues. Prior to working at the FTC, Steve worked at a Chicago law firm and clerked for two federal court judges.

Nextpoint: The FTC is a relatively small organization with a broad mission and jurisdiction. How does the FTC choose where to deploy resources?

Steve Wernikoff: One major way that the FTC prioritizes its efforts is based on the complaints it receives from consumers. The FTC accepts consumer complaints by telephone and at the FTC’s website, which are then added to the FTC’s Consumer Sentinel complaint database. A number of other state and federal government agencies, as well as some private entities, provide consumer complaints for the Consumer Sentinel. The database allows the FTC staff to identify fraud trends and search for top violators. The Internet poses additional challenges for identifying investigation targets because consumers often do not know the identity of the party that has defrauded them. So the FTC staff also spends a lot of time scouring the Internet, like a consumer would, looking for areas of concern.

What role does technology play in effectively litigating against large, well-funded businesses?US Federal Trade Commission talks Technology

SW: From forensic data acquisition and document management solutions, to courtroom technology and general consulting services, our need for technical litigation support is growing. To support this growing need for eDiscovery tools and services, an FTC litigation support system was created. The system uses advanced tools for litigation support that enable users to acquire, analyze, organize, and present large volumes of digital evidence. Program managers are continuously evaluating new software and hardware to increase efficiency and respond to new technologies used by third parties.

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Lawyers Struggle with Protecting Privilege

When lawyers are managing eDiscovery there are really just three things they need to know for every document– is it responsive, non responsive, or privileged. Responsive they give to opposing counsel, non-responsive they ignore, and privileged documents must be protected. As the U.S. Supreme Court put it, “The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.” Yet, somehow, privilege is still one of the most common and devastating failures in litigation.

When lawyers accidentally produce privileged material, their recourse is the Federal Rules of Evidence 502(b). Even if a legal team turns over privileged documents accidentally, they can get the documents back if they can show “the holder of the privilege or protection took reasonable steps to prevent disclosure.” That may seem like a simple standard, but courts have been reluctant to allow parties to claw back even obvious attorney-client work product once it has been produced.

Why Lawyers Fail

The most basic type of failure is when lawyers produce privileged documents and cannot show they made a good faith effort to prevent that production. Most recently, in D’Onofrio v. Borough of Seaside Park, No. 09-6220 (AET), (D.N.J. May 30, 2012), the court denied the defendants’ motion to recover privileged documents. The producing party had identified privileged documents, and had a plan in place to remove those from their production. Unfortunately, the clerical worker who was asked to remove the privileged documents from the non-privileged documents reviewed less than half of all the data involved. Even worse, no one bothered to check that the clerk had properly done the job.

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A thin bead of sweat is forming on the witness’s brow. Everyone in the courtroom can tell by the continuous string of grimaces on his face that he is counting the seconds until this cross-examination is over. The attorney walks over to his co-counsel, who pulls a set of documents from a binder and hands it to him. Certainly, this will be the linchpin.

One copy is handed to opposing counsel, one to the witness, and another to the judge. At the far end of the counsel table, a well-dressed young man behind a pair of laptops is trying to get the attention of the trial team. “Have you see this document before, Mr. Johnson?” says the attorney. “Uh, yes, yes I have,” replied the witness. “May we publish this to the jury, Your Honor?” asks the attorney, and the judge indicates his agreement. The young man is now desperately trying to get the trial team to look his way, without drawing attention to himself. The attorney turns to him, and with dramatic pause asks, “Could we publish to the jury, please?” The young man finally has the attorney’s attention, “Uh, what document do you need?” The momentum of the examination has ground to a halt and while the document eventually gets displayed, its power has been diminished.  This doesn’t need to happen.

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It’s easy to take the presentation of video depositions for granted at a trial. To many litigators, it’s a convenience, a way to move their case along, to tell their story while working around difficult schedules. While deposition video disasters are rare, bad and uninspiring deposition videos are depressingly common.

Trial Deposition Video Tips

It doesn’t have to be that way. Our trial services teams has learned a lot of valuable lessons about not only making deposition videos more presentable, but making them into a competitive advantage. 

There are two common uses for presenting deposition video in court. The first is simply the presentation of non-live witness testimony, piecing together agreed-upon testimony to play all at once for the jury. The second use is impeaching a witness on cross which, if done correctly, can be devastating to a witness’s credibility. Both can have impact on a jury and a little preparation can go a long way in shaping that impact to your advantage.

1. Control the Environment  As much as possible, eliminate any loud background noise. For example, the mere presence of cell phones can cause buzzing in the audio stream. Discuss this with the videographer before recording. And be sure to mic the deposition properly, both the attorney and the witness, so that there is an even audio level. A jury who can’t hear a deponent will tune out and not follow their testimony.

2. Control the Appearance  The most famous deposition video of all time is arguably Bill Gates’ disastrous appearance in the company’s antitrust trial. Besides his evasive and arrogant answers, most people were distracted by his unruly hair and sloppy brown suit. You don’t need to be a fashionista or bring a stylist, but be aware of the fashion choices and way things look on camera. Think about how seasoned television pros dress. “Details and intricate patterns prove to be little trouble for our eyes. For the camera, however, pinstripes, checks, herringbones, and textured fabrics will cause havoc for the camera.”

Also, be aware that anything besides the witness on the screen will be noticed and could be a distraction (e.g. 64oz drink cup)

3. Watch Your Posture! This may bring back unpleasant flashbacks to grade school for some, but posture matters. Lean slightly forward – it presents a positive, comfortable look; leaning back in your chair can make you appear cocky or too carefree.

4. Put Your Best Face Forward Have your witness take a second at the beginning of the video recording, before questions start, to look straight into the camera with both a neutral face and then a smile. This snapshot can later be used in an opening or closing statement with excerpts of their testimony to present your witness in a more favorable light.

5. Control Nervous Tics This is probably the hardest to stop, but nervous tics can become readily apparent given the length of a deposition. Work with your witness to be aware of any they may have.

Once the appearance of a video is under control, then comes the meat of the matter, the questions and answers. Obviously, do your normal due diligence in preparing your witness for the questioning of the exam. But it is also important to take a few minutes to give your witness (and yourself) a few pointers on the question and answer process to ensure their testimony comes across clearly and has the maximum impact in court.

  • Do not talk over the witness or opposing counsel. The court reporter will clean up the overlap, but it still comes across in the video and can make a clip of the testimony unusable.
  • Instruct your witness to wait to start their answer until after any objections. Objections can be cut out if they overlap with an answer.
  • After a lengthy objection and colloquy, make sure to have the question read back or repeat the question yourself. A good video clip needs a clean question and answer.

Deposition videos are a necessary and important part of many types of litigation. If you control the creation of the video, you can head off bad deposition videos before they happen.


Daniel D’Angelo is a Senior Project Manager at Nextpoint.  He has over 6 years of in-court “hotseating” experience working on over 50 matters across the country.  He also manages Nextpoint’s Evidence Room and Support Desk.

If it seems like there’s been a lot of eDiscovery sanctions lately, it’s not an illusion. The number of parties and lawyers being hit with sanctions and adverse inferences for eDiscovery failure are, in fact, on the rise. Obviously, sanctions are a bad thing, but it’s also a sign of maturity in the law.

Last week, guest blogger Joshua Gilliand of Bow Tie Law, wrote a guest post that took a deep look at sanctions issued in the recent Coquina Invs. v. Rothstein suit, investigating how well-meaning lawyers wound up getting sanctioned for eDiscovery failures. However, sanctions like this are not happening because lawyers are being blindsided by new complications in litigation. These penalties are being imposed because attorneys are failing to fulfill their well-defined and obvious obligations.

Defining What is Reasonable

Civil litigation exists largely because of one word: reasonable. Civil litigators have to prove their client had a “reasonable expectation,” or demonstrate “reasonable” damages from an action, or had a “reasonable expectation.” The judge sits in the middle, balancing the competing claims and counter claims, hopefully assigning a reasonable judgement.

What is reasonable?

eDiscovery: What is reasonable is no longer up for debate.

However, you can argue that in eDiscovery, what is reasonable is not really up for debate any longer. In fact, most sanctions seem to be the result of mistakes or inexplicable lapses to perform well-defined, routine, and obvious tasks.

For example, everyone knows that Samsung lost it’s massive patent infringement suit with Apple. What many people are forgetting is that Samsung dug itself a deep hole at the outset with a major eDiscovery failure, resulting in an adverse inference. What was the mistake? Probably the most basic and obvious function for litigators in the discovery phase: getting the client to stop deleting emails in anticipation of litigation.

It Doesn’t Get Much Clearer

When eDiscovery was still a nascent industry, judges were creating the rules and obligations from scratch. Now, the rules for sanctions and adverse inferences is clear. In fact, in the recent Stephen Omogbehin v. Maria Cino employment discrimination case, the court simply applied a standing four-prong test to determine whether spoliation occurred. The test is simply: demonstrate that [1] evidence was in the party’s control; [2] the evidence is relevant to the claims or defenses in the case; [3] there has been actual suppression or withholding of evidence; and, [4] the duty to preserve the evidence was reasonably foreseeable to the party.

Other sanctions are being issued for blatant spoliation. In the recent EEOC v. Fry’s Electronics the court issued sanctions against the defendant in a sexual harassment case for  intentionally withheld this information and the related documents from discovery. The sanctions include a $100,000 penalty, although the court stopped short of entering a default judgment against the defendant.

eDiscovery is a complicated business, so missteps are to be expected. But as Joshua laid out last week, mistakes are most likely the result of carelessness or misbehavior, not because the law is confusing. In fact, the reason we see a high number of sanctions is not because the law is ill-defined, but because the courts no longer have patience for such failure. The updated Federal Rules of Civil Procedure have been in effect since 2006, meaning lawyers have had more than six years to internalize best practices in discovery of electronic records. In fact, lawyers who play by those rules will have an advantage over any adversaries that try to take short cuts or ignore the existing body of case law.


A guest-post by Joshua Gilliand


 
There are phrases a lawyer never wants to hear a judge say. One is your law firm “acted negligently in failing to comply with its discovery obligations.” Another is your client “acted willfully in failing to comply with its discovery obligations and assist its outside counsel to properly litigate this case in accordance with the Federal Rules of Civil Procedure and the Federal Rules of Evidence.”

Both phrases appear in Coquina Invs. v. Rothstein. The facts have a Qualcomm-esq theme and highlight the need for project management like a fireball in the night. At a fundamental level, attorneys should not be afraid to ask their client questions. Moreover, trial counsel should never assume documents are only maintained as paper.
Too Many Cooks in eDiscovery

A lot of things went wrong in this case. The Court stated the law firm (we’ll call them Law Firm 1) had over 200 attorneys working on the case, which included different attorneys handling the banking issues, document production, pretrial and trial practice. The Court described the number of lawyers on the case as “too many cooks spoiling the broth.” Coquina Invs. v. Rothstein, 2012 U.S. Dist. LEXIS 108712, 4-5 (S.D. Fla. Aug. 3, 2012).

The client also retained a second law firm (Law Firm 2). Law Firm 2 hired a consultant to perform work related to the case handled by Law Firm 1, which was not related to Law Firm 1. The Court described that discovery was conducted in an “Inspector Clouseau-like fashion,” except there was nothing funny about it.

 
Not Now Cato!

The Plaintiff argued in their Fourth Motion for Sanctions that the Defendant altered a Due Diligence form to mislead the jury. While that is an excellent lineal attack, the facts were a lot more complicated.

A month after the Plaintiff’s filed their motion, the Defendant produce a document that the attorneys initially denied existed. Furthermore, Law Firm 1 filed a motion for the substitution of counsel (enter Law Firm 3).

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