“Power Corrupts. PowerPoint Corrupts
Absolutely.”
– The Internet
Four Horsemen of the Digital,
Ethical Apocalypse
Alvin F. Lindsay
Hogan Lovells
Miami, Florida
Blowing the Privilege
Mining for Data
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
Metadata Mining
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.
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
Uniform Preservation of Private Business Records Act.
(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.)
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 years
Keep 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 years
6 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
Florida Rule of Professional Conduct
4-3.4
Fairness to Opposing Party and
Counsel
A 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
4-3.3
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
4-3.2
Expediting Litigation
A lawyer shall make reasonable
efforts to expedite litigation
consistent with the interests of a
client.
CASELOAD STANDARDS
Annual Non-Capital Felony Caseload
450
400
350
300
250
200
150
100
50
0
ABA
FPDA
B&B
FGC
PD-11
“Inappropriate”
MCA
Felony Mental Health
Drug Court
JSAP
ERU
Bond Hearings
Training Attorneys
Supervising Attorneys
“Appropriate”
Division Attorneys
MCA
Felony Mental Health
Drug Court
JSAP
ERU
Bond Hearings
Training Attorneys
Supervising Attorneys
Always take the high road . . .
Lagniappe
TechnologyInLitigation.com
Thank you!
Alvin F. Lindsay
Alvin.Lindsay@HoganLovells.com