The Cloud, Metadata, Social Networking, and You: How Technology is Changing the Practice of Law June 9, 2017 Dan Blackaby Mark Williams First two classes introduced two key tools for case law research 􀂃 Secondary Sources, including using them to locate court decisions 􀂃 Statutes, including use of annotated codes, an important source for locating cases that interpret statutory code sections, court rules and constitutional provisions o This class will discuss case law in more depth, and focus on some important skills: 􀂃 Full text searching for case law on Lexis and Westlaw (Terms, Connectors) 􀂃 How to use one case to find other cases on the same topic (w/headnotes) o Next week’s class will address essential updating tools that can be used to determine if a case is still “good law”

What is cloud computing?

Ex: Google Data Centers Where is the cloud? Ex: Google Data Centers

Why lawyers are using the cloud Flexibility Simplicity Cost Savings http://www.americanbar.org/publications/techreport/2016/cloud_computing.html 

Ethical Considerations ABA Model Rule 1.1 Comment 8 ABA Model Rule 1.6(c) Comments 18 & 19 New York Rules of Professional Conduct, Rule 1.6 NYSBA Ethics Opinions 842, 1019 & 1020

The Basics When using an online system to store confidential client information: Use reasonable care in maintaining one’s client confidentiality Use reasonable care in preventing others from disclosing confidential information Stay current with technology Monitor the changing law

Using the cloud well Require an enforceable obligation on the part of the provider to preserve confidentiality Require the provider to give notice if served with process to produce client information

Using the cloud well Investigate the provider Security measures Policies Recoverability methods  Legal Cloud Computing Association Standards (see handout)

Using the cloud well Employ available technology to guard against reasonably foreseeable attempts to infiltrate the data that is stored

Using the cloud well Preserve your ability to change providers, including To purge and wipe all copies of data To move data to a different host

Current Reality http://www.americanbar.org/publications/techreport/2014/cloud-computing.html

Data Localization Laws Data residency laws, also known as “data localization laws,” require that companies store certain types of data or records locally within a jurisdiction Countries so far that have enacted or are debating some form of Data Residency Law Russia Kazakhstan Germany Indonesia China Brazil Argentina The Trans Pacific Partnership Agreement (TPP) expressly commits member countries to refrain from enacting data residency laws or local data center requirements US withdrew on 23 Jan, 2017 US Trade Representative has designated such laws as a "foreign barrier to trade" in its 2017 Annual Report

What is metadata? Data about data Data about the document itself and the file its packaged in

Kinds of metadata Substantive Metadata System Metadata Commentary, paper descriptions, authors, keywords System Metadata Which computer, what program, which version Embedded Metadata Copyright statements, use restrictions

Metadata in MS Word

Metadata in PDF

Metadata in PDF

Metadata in PDF

Metadata Ethical Considerations Metadata by state NYSBA Ethics Opinion 749 NYSBA Ethics Opinion 782 New York Rules of Professional Conduct , Rule 4.4b ABCNY Formal Opinion 2012-1 ABA Formal Opinion 05-437

Tips About Metadata Always check Scrubbing programs are available. Some for free. Be warned, you get what you pay for. Some editorial, some generated by the very fact of using a computer. This impacts what you can eliminate.

- Ask group for examples. - What are the examples for this for this presentation

Professional Uses for Social Media Strengthening Communication Making Connections Gathering information Communication Marketing services Connections Building reputation Gathering info Staying current Research on clients or in litigation

Social Media Ethical Considerations New York Rules of Professional Conduct, Rule 1.1 ABA Model Rule 1.1 Comment 8 Competency = currency - Understanding the benefits and risks associated with relevant technology in legal practice

Solicitation, Advertising, Advice Ethical Considerations New York Rules of Professional Conduct, Rules 1.0, 7.1, 7.3, & 7.4 NYSBA Ethics Opinion 899 & 972 NYSBA Commercial and Federal Litigation Section Guidelines 1 &2

Litigation Concerns Pre-Litigation Investigation Service of Process Discovery Jury Selection Monitoring Jurors Use of Social Media During Trial

Service of Process litigators seeking to serve via a social media platform should be prepared to: Prove the authenticity of related or associated email accounts. Demonstrate that the proposed service: is not prohibited by applicable statutes or rules; strictly complies with due process standards; and is highly likely to reach the defendant (for example, by showing that the defendant regularly views and maintains the social media account). Serve through email or another method in addition to social media.

Evidence, Communication, Jurors Ethical Considerations New York Rules of Professional Conduct, Rules 3.1, 3.3, 3.4 3.5, 4.1, 4.2, 4.3, 5.3, & 8.4 NYSBA Ethics Opinion 843, NYCBA Formal Opinion 2012-2, NYCLA Formal Opinion 743 But see also: ABA Formal Opinion 466 NYSBA Commercial and Federal Litigation Section Guidelines Guidelines 3,4, & 5 See Also NYBSA Commercial and Federal Litigation Section’s “Social Media Jury Instructions Report” – December, 2015

Using social media You should… You can… You shouldn’t… Know what your clients are using Know that the rules are constantly evolving Be aware that rules still vary depending on jurisdiction Post accurate and professional information Monitor your social media accounts You can… Access publicly available information You shouldn’t… Create a “dummy” profile Live “chat” with potential clients

Questions?