Please join KLN Consulting Group, the California Minority Counsel Program, and the SF Bay Area Chapter of the Association of Corporate Counsel for our annual Black History Month Celebration hosted by and at Reed Smith LLP in Downtown San Francisco on Thursday, February 12, 2015 at 11:45am.
Our keynote speaker will be David Kelly, General Counsel for the Warriors, who will talk about his personal experience, diversity in sports, and the role of lawyers effecting change.
Small to mid-sized law firms or companies typically operate at a disadvantage when it comes to utilizing legal technology and litigation support services. Larger firms and Fortune 500 Companies tend to have full-time staff and limitless resources for hardware, software, and consultative support for their cases. In order for smaller firms to compete, they should utilize independent consultants whenever necessary to save time, scarce resources, and ultimately money. This includes, “bringing your geek to work” for the critical Federal Rules of Civil Procedure – Rule 26(f) Meet and Confer requirement.
Imagine needing to prepare for 5 depositions in an asbestos case without a full-time paralegal? Or reviewing DVDs of documents that you have received from opposing counsel in order to prepare an expert for his/her deposition on a shoe-string budget? It most likely is not going to happen, or else the responsibilities will fall on an attorney’s hands, where ultimately the smaller firm will lose money. The attorney should bill his/her time to more substantive work, which would allow the firm to rely on a consultant to take this over. This is why hiring an experience consultant comes in handy, where you already know what their experience level is, they already posses proven methodologies to approach these situations, and when the project is done, so is your contract. A consultant can prepare work product such as deposition summaries, chronologies, demonstrative evidence, etc. on the firm’s behalf more efficiently and effectively, which can be very useful in preparing for mediation or trial.
Similarly, when the Rule 26(f) conference arises, and the parties need to meet and confer regarding discovery and electronically stored information (ESI), many smaller firms feel as though they can relay on their vendors to be their “bring your geek to work” representative at these conferences. Unfortunately, the problem with this is that these vendors are not independent, meaning that their economic livelihood and interest is based on the volume of data that is used to review in the said case. Thus, they have no real incentive to negotiate aggressively with opposing counsel’s “geek” to keep the volume down, which ultimately reduces the firm’s costs. Moreover, smaller firms/companies typically do not have a trusted independent source that has knowledge of ESI, eDiscovery, and/or adequate trial experience to help the firm maneuver through the litigation process completely.
Thus, it is incredibly useful to have your own litigation support professional, more affectionately known as your geek at your side throughout the litigation process. Rather than having a full-time employee that you have to provide benefits for and get stressed out about making payroll for, you can hire a litigation support professional/consultant to assist when needed and provide the continuity on your cases that your firm deserves. You can easily choose different consultants if the relationship is not working out and you can utilize them when you need them. During the Rule 26(f) Meet and Confer, it is also in the firm’s best interest to have a knowledgeable and independent consultant on its side to be a fierce advocate for the firm or company, monitor the vendors that are being used, and oversee any staff that will have a hands on role on the outcome of this conference. Consultants are your friend and should be used when needed to win your cases.
Kevin L. Nichols is the Principal of KLN Consulting Group located in San Francisco, which specializes in
Litigation, Diversity and Business Development/Social Media consulting.
NO VENDORS OR SERVICE PROVIDERS PERMITTED UNLESS SPONSORING.
Why Should You Attend?
As In-House Counsel, you know litigation costs can spiral out of control. The Exchangeconference allows you the unprecedented opportunity to explore ways of containing and controlling those costs. The program’s interactive format between audience and faculty provides a true understanding along with practical advice regarding the major e-Discovery challenges facing an organization today. Learn more.
Robert Brownstone Technology & eDiscovery Counsel, and Co-Chair, Electronic Information Management Group
Fenwick & West LLP
David Kessler Partner
Norton Rose Fulbright
Michael J. Burg Corporate Counsel
DISH Network L.L.C.
Discussion topics will include:
Create a routine and repeatable e-discovery business process
Deal with challenges of litigation holds
The importance of project and process management skills
Effective cost and risk containment steps
The need to document your e-discovery efforts
Real ECA and risk analysis
Recognize and reconcile the ethical tensions that can arise between inside counsel, outside counsel and providers
No question about it, social media isn’t just an obsession for teenagers and geeks. It’s become a multibillion dollar customer service industry, as companies shift resources to create social media sites to interact with their customers. For lawyers and other legal professionals, deciding which sites you should join or avoid can be overwhelming.
Here are eight ways to use social media to help you reach your professional goals:
1. Develop your personal brand. What are you trying to communicate with your profile? Carefully consider the keywords you want to project: such as integrity, innovative, detail-oriented, accessible, hard working. Keep your our target market/audience in mind. Create a consistent message with professional photographs as your profile avatars. For example, if you work at a mainstream megafirm, you probably want to project an image as a conservatively dressed, reserved individual; if you work at Google, your colleagues would start laughing if you dressed that way.
2. Treat Twitter like a mini-press release. Social media novices may not fully understand all of the ins and outs of LinkedIn and Facebook, but generally “get it” when it comes to their purpose and target market. However, many people do not understand Twitter‘s functions or purposes. Most people do not know that every tweet is archived at the Library of Congress and is a permanent record of our generation.
When you “tweet,” you share up to 140 charters of text that can include links to websites, blogs, pictures, or video, with the entire world … literally. This can be an enormous marketing tool because the reach of a “tweet” is limitless, yet, there can be serious consequences when not done appropriately. For example, CNN News analyst Roland Martin recently was suspended for tweeting comments about David Beckham in an H&M commercial during the Super Bowl. Be mindful not to dilute your brand.
3. Knowledge is power. At least once a month, search your name in all major search engines, to know how the world sees you. Visit Google, Yahoo, and Bing and type your name in quotation marks to see what is out there.
Some people have such major concerns with security and privacy online that they choose not to participate on social media sites. Yet, they are often dumbfounded when they Google themselves to see the preponderance of inaccurate data about themselves online.
It’s better to control (as much as possible) your own information — offer a post office box for your address. Use a Google Voice telephone number — you can block foreign numbers and control various settings, rather than having various sites try to piecemeal or fabricate your personal information for you without your consent. Protect your brand. Sometimes you may have to send cease-and-desist letters to websites that are unlawfully using your written materials or intellectual property.
4. Check your reach. Naymz.com and Klout.com both help you add your profiles from major sites to rate your social media reach and amplification. Translation: When you update your status or send a tweet, they will track how many people “like” it, comment on it, share it, or “retweet” it to their networks. The wider your message is amplified, the greater your score. Compare your score to other members to see where you rank. These sites offer tips on how to expand your reach, with the goal being that your message resonates well with your target audience.
5. SEO rewards fresh new content. Search engine optimization helps your target audience find your website, profiles, and blogs. Although companies can buy words for advertising so that their sites appear on the first page of search engine results, adding keywords multiple times on your sites can increase the likelihood that your site will appear as a top result as well. Moreover, various search engine algorithms reward newer content to appear higher in results than static or old sites. This helps your target audience get exposed to your professional brand while they are looking for your products and services.
6. Automate and/or make updating your status easy. One of the most powerful social media tools is the “status update.” This is the broadcast message reintroducing your brand to your target audience on a frequent basis. There are various websites that allow you to update all of your social media sites, simultaneously, such as Hellotxt.com, TweetDeck, PingFm, and HootSuite. Some provide tracking and useful analytics, however, there are web address shortening sites such as bitly, that shrink very long URLs to eight to 10 characters and provide robust analytics of who is talking about and reading your information. This helps individuals who are concerned about their return on investment track results. For example, lawyers can share relevant articles, or case decisions.
7. Show off your expertise. Carefully choose sites where you can demonstrate your knowledge. For example, both Quora and LinkedIn Answers are vehicles where attorneys can answer basic questions, yet lawyers must exercise caution and carefully follow their jurisdictions’ ethical rules to avoid the appearance of an attorney/client relationship when they comment.
JD Supra has massive distribution channels consisting of thousands of Facebook and Twitter “followers” of various legal practices — such as mergers and acquisitions, or labor and employment litigation. When you post an article or pleading, it is disseminated to the masses with a link to the document on your profile. Subscribers receive these updates and can share them with others — a good way to get your name in front of possible clients.
8. Communicate consistently with your target audience. Many lawyers and firms use “client alerts” or email newsletters to educate current and potential clients. Constant Contact and Mail Chimp are examples of tools that help you send communications to large distribution lists. (However, you must be mindful of the federal and state laws regarding how to add people to your distribution lists.) Incorporate video (from YouTube , Vimeo, Knoodle, or other venues).
Social media is constantly evolving; dedicate time to keep current so that you can fully exploit its opportunities and stay aware of its risks.
Last month I was on a panel at the Computer Forensics Show with Jack Halprin, head of eDiscovery, enterprise at Google; Eric Hunter, director of knowledge management at Bradford & Barthel; and Michael Lackey Jr., partner at Mayer Brown, which addressed the ethical concerns and challenges involving social media. Technology using new media is changing so rapidly that the courts cannot keep up. A common thread that emerged was that social media, in some form, is here to stay; however, no one is convinced that the dominant players, namely Facebook Inc., LinkedIn Inc. and Twitter Inc., will remain at the top five years from now. Some of the presentation’s key takeaways included rules and regulations, court decisions and best practices with regard to social media.
Rules and Regulations
The ABA, state bars and countless government agencies are trying desperately to implement restrictions, polices, procedures and codes of conduct to ensure that companies and law firms monitor their social media sites and their employees’ as well. For example, the Electronic Communications Privacy Act and Stored Communications Act (18 U.S.C. §§2510-2712) adds the transmission of electronic data from computers to existing government restrictions on wiretapping and disclosure of electronic communications held by third-party Internet service providers. Moreover, SEC Release No. 34-58288 outlines the liability for information posted on companies’ websites; and FINRA Regulatory Notice 10-06 requires financial services firms to monitor and maintain records on social media site usage and interactions. Companies and law firms need to be aware of these changes and can review Federal Judicial Center: Social Networking Guidelines & U.S. District Courts, N.Y. City Bar Op. No. 2010-02 (Sept. 2010), and Philadelphia Bar Op. No. 2009-02 (Mar. 2009) for more guidance on using social media in these areas.
There are currently several courts across the country grappling with social media and what is discoverable.
1. The case of Offenback v. L.M. Bowman lays the groundwork that the “scope of discovery into social media sites ‘requires the application of basic discovery principles in a novel context.’” Offenback’s finding states that “public information contained in plaintiff’s account is properly subject to limited discovery in this case.” Thus the court has the right to obtain passwords and access social media sites if there is just cause.
2. In a Central District case of Crispin v. Christian Audigier, the court quashed a subpoena for private messages by finding that the Stored Communications Act was applicable, but clearly distinguished private messages from public posts on social media sites, for which the SCA was inapplicable.
3. In Romano v. Steelcase, the court declared that social media data was “material and necessary to the defense of [the] action,” which included even deleted pages. The Romano court found that “privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking.”
4. In EEOC v. Simply Storage Mgmt., the court required the plaintiff to produce relevant data from social media sites such as Facebook and MySpace because they were not considered private communications, which expanded the discovery scope from “communications that directly reference the matters alleged.”
These cases illustrate that the “reasonable expectation of privacy” that once existed is diminishing rapidly when individuals willfully choose to share information via social media sites. More and more information is becoming discoverable and produced as evidence. This exposure can be reduced through better practices.
In working with social media, one must use a commonsense approach and a “reasonable person” standard to operating a business or conducting personal interactions. Because many companies and firms are using these sites to interact with customers, market their products and/or services, it is vital to have standard practices, rules of conduct, policies and procedures in place.
Here are some recommendations:
1. Have clear and concise policies, with “do’s and don’ts,” and training available for your organization.
2. When at all possible, restrict use of social media sites for all employees with the exception of marketers and individuals who need to conduct investigations, e.g., for deposition preparation (but remember to include policies about the use of personal hand-held devices while on the company’s clock).
3. Include defensible legal hold and preservation polices in your organization’s governance materials.
4. Attorneys should beware of calling themselves “specialists” or embellishing their biography on the firm website (duty of candor).
5. Be careful whom you “friend,” “connect with,” or “follow.”
6. Keep client names and personal information out of blog posts and articles for privacy and confidentiality concerns.
In summary, much like rock ’n’ roll and even hip-hop, the younger generation has created a new phenomenon that has changed the world. Social media is here to stay and many companies, including law firms, do not want to be left in the dust. There are serious concerns of exposure while participating in social media; thus, participants need to proceed with caution. Attorneys have explicit guidelines and ethics to follow, and should be careful to avoid the existing pitfalls. Develop firm policies and procedures for you and your clients and remember that with social media, everyone’s checking your status.
Disclaimer: The author is not a lawyer, thus the content of this article should not be interpreted as providing legal advice.
Kevin L. Nichols is the Principal of KLN Consulting Group located in San Francisco, which specializes in Litigation, Diversity and Business Development/Social Media consulting. For more information, please visit http://www.klnconsultinggroup.com.