e-billing, e-strategy, e-discovery jack pierce, esq. john browning, esq. jennifer rothstein © clm...

E-Billing, E-Strategy, E-Discovery

Jack Pierce, Esq.John Browning, Esq.Jennifer Rothstein

© CLM Litigation Management Institute 2013. All rights reserved. The course material presented herein does not represent the views or opinions of any of the individual faculty members or instructors or of any of the companies or entities with which they may be employed or affiliated. Nothing in the course materials presented should be construed as legal or professional advice or the rendering of a legal or professional opinion on any specific factual situation. Always seek appropriate legal and professional business advice in the context of specific cases.

E-BillingEvolution and Development

Jack Pierce, Esq.

For Services Rendered...

Origins of E-Billing 1950s – Invoices for “Services Rendered” 1960s – “Time records are valuable but not

conclusive” 1970s – shift from value to time Evolution – Transition from value to time-

based billing 1990s – Goals of a paperless office:

Development of LEDES and UTBMS

LEDES LEDES – Legal Electronic Data Exchange Standard 1995 – Price Waterhouse convenes a consortium

to define a standard electronic billing format for use by the legal industry

LOC – LEDES Oversight Committee International Non-profit Creates and maintains open standard formats for

electronic billing

Let’s Design a System That Will Fly…

Task-Based Billing 1990s – Demands by ACC, corporate clients,

ABA, Price Waterhouse and others Goal – Common Language to describe tasks

performed and expenses incurred Collaboration resulted in the development of

UTBMS (Uniform Task-Based Management System)

Initial Goals of E-Billing Automate and streamline invoice review

process. Catch billing errors. Cost-saving objectives – saving companies

time and money in the bill review process. Early systems did little more than provide an

electronic (or scanned) version of the invoice for routing and approval.

Evolving Goals of Today’s E-Billing Today’s systems are more robust and offer much

more. Ability to create legal budgets. Conduct audits of legal bills using standards set by

multiple billing guidelines. Corporate scandals (Enron, WorldCom) have resulted

in new regulations and greater scrutiny over corporate spending and compliance.

E-billing monitors law department pending and budgeting.

Let’s Build a Better Boat…

Other Evolving Goals… Greater analysis of outside counsel’s

performance Evaluation of staffing decisions of outside

counsel. Evaluating the effectiveness of AFAs. Triaging – Assists general counsel in the

evaluation of the company’s triaging of legal work to outside law firms. (The right cases to the right law firms.)

Evaluation of YTD Top Billing Firms

Comparison of Fees to Date

Analysis of Historical Timekeeper Rates

Review average rates by position for a particular firm over the course of several years.

“We’re Processing Your Invoices…”

Benefits and Cost-Savings

Paperless invoice cost savings – reduces paper, printing, copying and storage costs.

Streamlines the review process – Reduced staffing of invoice reviewers.

Time savings in the review process. More efficient review and quicker approval

time. Quicker turn-around in the payment of invoices.

Sometimes Things Don’t Work As Planned…

Potential Pitfalls – Bumps Along the Road

Things Don’t Always Work Smoothly: Automatic rejection of non-compliant entries or format increases and the rate of re-submission. Time involved in the re-processing of rejected invoices.Difficulty in attempting to follow divergent re-submission processes for multiple clients with different reprocessing procedures.Loss of otherwise billable time spent on re-processing, re-submission and collection process.

Some Key Words to AvoidChart your course carefully – Even though your billing entry may be a legitimate charge, certain words will trigger automatic rejections. Examples:Calendar – “Chambers conference with Judge Olsen to outline upcoming discovery calendar and motions.” Index – “Consult with economics expert regarding the applicability of the index of economic indicators to plaintiff’s damages analysis.”Organize – “Organize trial exhibits to reflect change in order of witnesses.”

Avoid Certain Combinations Is this really block-billing?

“Review & Revise” “Plan and Participate in…” “Review and Respond to email” “Travel to and attend…”

Avoid the use of the semi-colon. “Meet with witness Smith; prepare Smith for deposition.” “Review motion to compel; outline response to motion.” “Meet with trial graphics expert; outline development of

new trial exhibits.”

Words That May Require More of an Explanation

Supervise Coordinate Strategize Attention to Monitor Complex Analyze Revise Obtain Strategize Coordinate Effectuate

Organize Commence Work On Finalize Gather Locate Process Plan Update Begin Continue to Input

When We Get the Kinks Out We Can All Be Winners!

E-StrategySocial Media and Its Impact on

The Legal SystemJohn Browning, Esq.

Over 1 billion unique users each month; 72 hours of video are uploaded to YouTube each minute

Over 1 billion users

Over 400 million tweets daily

Over 200 million users

Facebook and Twitter 72 percent of all adult Americans have at

least one social networking presence One in every seven minutes spent online is

spent on Facebook Facebook users spend more than

10.5 billion minutes per day on Facebook Twitter processed 5,000 “tweets” a day in

2007. By 2012, that figure had soared to over 400 million a day.

Your Facebook Status – “Served” Changing The Way We Look At

Service Of Process Eight countries outside the U.S. permit service

of process via social networking platform (Australia, New Zealand, Canada, United Kingdom, Singapore, Estonia, Ireland, South Africa)

Three states in the U.S. – Minnesota, Texas, Utah

At least one federal court.

Changing The Way We Look At Jurisdiction

Will Facebook posts or Twitter tweets give rise to jurisdiction?Some courts say no:Lyons v. Rienzi & Sons, Inc. Lifestyle Lift Holding Inc. v. PrendivilleNuboNav, Inc. v. NB Labs, Ltd. Some courts say yes:Hale v. RicheyWaterman Steamship Corp. v. RuizJuniper Networks, Inc. v. Jupiter Media, LLC

New Causes Of Action “Libel By Twitter” New Defenses “The Facebook Alibi” New Duties Is There A “Duty To Tweet?”

Constitutional Issues

Is a “like” on Facebook protected speech?Bland v. Roberts Mattingly v. Milligan

Constitutional IssuesCyberbullying laws and the dangers of being overly broadProposed Indiana legislation against “delinquent, criminal or tortious” or “juvenile” acts onlineThe split in circuits over schools’ power to punish student social media expression (Layschock, Kowalski, and other decisions)Laws banning sex offenders from social media held unconstitutional

Who Monitors The Monitors?

Universities turning to third party vendors like UDiligence and Varsity Monitor to monitor the social media activities of student-athletes

Current laws and pending legislation against schools requiring or requesting social media passwords from students

Constitutional IssuesFourth AmendmentU.S. v. Meregildo(no 4th Amendment violation where incriminating content from criminal defendant’s Facebook page was provided to prosecutors by a cooperating witness with access)

International Law Access to social media/the Internet as a basic

human right? Implications of the “Arab Spring” – social

media as galvanizing political tools, and as governmental response

Tajikistan blocking Facebook access Kenya tracking of Facebook and Twitter for

election “hate speech” London riots

Securities Law

FINRA and other regulatory bodies weighing in with social media guidance

Social media and public disclosure rules: did NetFlix CEO Reed Hastings violate SEC rules by making a single Facebook post?

FBI use of social media to investigate securities fraud

Intellectual Property Law

Copyright implications of using photos posted to Twitter – AFP v. Morel

Use of Facebook fans and likes as evidence of secondary meaning in trademark cases

Use of “likes” and other social media content to establish recognition of trade dress/famousness

Paramount Farms Intern. LLC v. Keenan Farms, Inc.

Employment Law

Whose social media account is it, anyway?Phonedog v. Kravitz Ardis Health v. Nankivell Eagle v. Morgan

The National Labor Relations Board wave of decisions involving “Facebook firings”Is it harassment, or “protected concerted activity?”What should, and shouldn’t, be in a social media policy?Seeking applicants’/employees’ Facebook passwordsBarred in 6 states; legislation pending in at least 10 moreU.S. Social Networking Online Protection Act

Criminal Law LexisNexis Risk Solutions survey of federal, state

and local law enforcement — 83 percent are using social media, particularly Facebook and YouTube

NYPD social media unit Social media content increasingly being used for

proof of motive, state of mind, eyewitness identification (Bradley v. State). Sentencing (Hoffman v. State), and monitoring for parole/probation violations (People v. Mincey)

Use Of Social Media In Discovery Nearly 1,000 reported cases 2012 Seeking entire Facebook account/Facebook

password for unfettered access: Some courts allow: Romano v. Steelcase, Inc. Some courts do not: Tomkins v. Detroit Metro

Airport What is the trend?

Social Media’s Many Uses

Not just incriminating photos or Facebook wall posts any more

Social media discovery also permitted to satisfy jurisdictional questions as well as the issue of a party’s domicile for choice of law determination

In re Air Crash Near Clarence Center

Evidentiary Issues How to authenticate social media content? Circumstantial authentication permitted: Tienda v. State People v. Assi People v. Valdez Circumstantial authentication not allowed: Griffin v. Maryland Commonwealth v. Williams State v. Eleck

Ethical Issues Duty of Competence ABA Ethics 20/20 Commission changes National trend Ethical Information-Gathering Ethics opinions around the country about “false

friending” and pretexting Ohio lawsuit against insurance defense firm and

carrier New Jersey ethics proceedings

Preservation of Evidence Lester v. Allied Concrete (Va. S. Ct. 2012) Gatto v. United Airlines (D. of N.J. 2013) Client Confidentiality Fermin Ricalde case in Miami/Dade County Attorney Use of Social Media in Jury

Selection

Dealing With The Digital Afterlife

Increasing number of states adopting legislation to give testators control over their digital assets after death (Oklahoma and others)

The “If I Die” App and other responses by providers

Judges and Social Media

To friend or not to friend, that is the question – just not in Florida, where judges friending attorneys is grounds for disqualification

Domville v. State Judicial ethics opinions about social media

are increasing around the country (e.g., Youkers decision from the Dallas Court of Appeals, May 2013).

E-Discovery

Jennifer Rothstein

E-Discovery Overview E-Discovery – a refresher Updates to the rules Strategies Insurance Channels

E-Discovery – Review and Refresh What is it and why is it still relevant?

Costs and risks involved Where do we see it?

State vs. Federal level Critical updates: Proportionality!

June 2013 - Proposed Amendments to Rule 26 (b)(1) approved for publication and comments

Proportionality! Rule 26 (b) (1) Discovery Scope & Limits

proposed language Case law

Rimkus v. Cammarata (direct) Solvay (indirect)

Proportionality Analysis States amending their rules Predictive coding/technology assisted review

Case law: Kleen Products; Da Silva Moore; EORHB (aka “Hooters” case)

7th Circuit Pilot Program contemplates proportionality as one of its principles

International Trade Commission Rules

e-Discovery Strategies

Defensible document retention policy put into place in the ordinary course of business

Fire drills – who do you share it with in your organization?

Does it matter what type of industry you’re in? Reasonable anticipation of litigation

Who is responsible for anticipation? Does carrier notice = reasonable anticipation?

Legal Holds

Nominate a person within the organization to be responsible for the legal hold process

Legal hold process: Implementation Communication Enforcement Release

The e-Discovery Team

Working with outside consultants and vendors

Reliable, effective cost comparisons Engaging the risk manager Relying on your carrier for assistance and

e-Discovery communication with your carrier

Insurance ChannelNew to the game or always there?

Is E-Discovery a covered cost in an insurance policy? Where is it referenced?

Litigation management – definition of defense costs Separate defined term

E-Discovery products Stand alone policies Endorsements Sublimits Consulting services/readiness

assessments