MSBA Computer and Technology Law Section

2013 Computer & Technology Law Institute

DATE & LOCATION
Tuesday, November 19, 2013
Minnesota CLE Conference Center
600 Nicollet Mall, Suite 370
Third Floor City Center, Minneapolis

Below are the individual CLE topics and abstracts, in chronological order of their planned presentation.

 

The Year in Review: Top 10 Tech Law Developments for 2013
What are some of the most important legal developments over the past year? Two experienced technology lawyers – a litigator and corporate counsel – will explain how these developments are (or should be) impacting your legal practice.

(big) Data Portability Challenges
our data is everywhere and it grows incessantly. Sites such as Facebook, Google, Twitter and Bing continuously and rapidly expand the amount of information they store and organize about us. Almost concomitantly, the desire to control our data emerges. We seek to be able to easily port it from one site to another. This is as strong a desire as it is complex. It is mired by conflicting interests and difficult operating environments that collide and thwart the quest to deliver it. Much of the data portability debate centers on user privacy and rights in data, but site operator interests are also relevant and require discussion. This presentation addresses 3 key themes in this context: (1) The Site – User Contractual relationship; (2) Impenetrability of Terms of Use and Information regulation; and (3) Big Data Privacy Challenges.

New Money: Hot Topics in Mobile Payments and Virtual Currency
Come hear about recent developments in the technology, law, and regulatory environment regarding mobile payments and virtual currency. The current and potential future impact of these developments will be discussed in the context of the mobile payments and virtual currency ecosystems as a whole and as applied to specific issues. The presentation will address topics such as contract drafting, privacy and data security concerns, and regulatory guidance and enforcement.

Managing Privacy and Data Security Risks Through a Vendor Management Program
This session will provide an overview of the privacy and data security considerations associated with the management of service providers across industries. What steps should be taken to select and retain service providers, and how can companies manage risk by imposing contractual obligations on vendors? What privacy and data security risks should in-house and outside counsel consider when retaining service providers in the U.S. and abroad? What are the special considerations resulting from recent information security incidents that impact vendor management programs?

Patents, Policy, Politics and Practice: Are Non Practicing Entities—or Patent Trolls—Everything the Media Claims?
Understand why Non Practicing Entities (NPEs) are not all alike and why definitions for “patent trolls” may be problematic; hear about efforts by states and Attorneys General to fight NPEs and pending bills before Congress; learn how the debate over patent-eligibility for software and eCommerce relates to NPE activities; obtain the latest information about the impact of the America Invents Act and practical practice pointers.

Responding to a bSA or Vendor Software Audit, and Software Asset Management Strategy
Because most software audits and disputes are settled confidentially and without judicial involvement, there is little case law on the subject to guide respondents. And major players including the BSA are purposefully vague regarding their practices, standards and results. Steve has represented over 60 businesses in responding to audit demands involving the BSA and other software vendors. he will offer strategies and tips for responding to vendor software audits. And he will provide a checklist of best-practices for software asset management.

Where Technology Meets Attorney Ethics
What are the potential ethics pitfalls when lawyers “ByoD,” using their own personal devices for work matters? or when attorneys use apps or the cloud? What are best practices for protecting client confidences when using new technologies? A noted privacy attorney and forensics expert provides insights on significant ethics/professional responsibility issues at the cutting edge of  technology.

Register Here

 

CREDITS
Minnesota CLE is applying to the
Minnesota State Board of CLE for
6.5 CLE credits, including 1.0 ethics
credit for the 3:30 p.m. session.
Attendees may claim a maximum of 6.5 credits for this seminar

E-discovery law symposium tomorrow at Wlm Mitchell College of Law

Attend “You Love it, You Hate it. Now You Have to Live With it: E-Discovery” and you’ll hear a variety of perspectives on what e-discovery requires in litigation and the latest nuances in the e-discovery world. Speakers and panelists include in-house and outside counsel, judges and technology experts. A few members of the Computer & Technology Law Section, such as Bridget A. Sullivan, Sean L. Harrington, John J. Carney, will be among the speakers.

“You Love it, You Hate it. Now You Have to Live With it: E-Discovery”
Friday, Oct. 4 | 9 am–4:30 pm
William Mitchell College of Law Auditorium

Attendees of the symposium will receive a complimentary copy of Volume 40, Issue 2 of the William Mitchell Law Review, which will include the articles written by the Minnesota E-Discovery Working Group, a grass-roots organization founded in 2011 with the goal of writing five separate papers that address various aspects of e-discovery best practices from a Minnesota perspective and that could be used as a resource by both judges and lawyers in Minnesota.

Registration is $130, with a reduced rate of $50 for judges and public service attorneys. Free for students. Be sure to complete the form as the contact information entered will be used to send you your copy of the law review.

Application will be made for 5.0 standard and 1.0 ethics CLE credits. Co-sponsored by: American Board of Trial Advocates (ABOTA), MSBA Civil Litigation and Computer/Technology sections,  Minnesota Defense Lawyers Association and Minnesota Judges Association (MJA).

Register for the conference

CLE: Texts, Lies and Backup Tapes

The following is a review by Diane Vlassis, JD, of the CLE entitled, "Texts, Lies and Backup Tapes: What You Must Know about E-Discovery to Prove Your Case and Avoid Big Mistakes," which both Sean Harrington and Ms. Vlassis attended:

On October 5, 2012, a one-hour CLE on the ethical implications of e-discovery was offered by the MSBA’s Solo and Small Firm Section at the MSBA Offices in Minneapolis. There were two presenters: Michael Arkfeld, J.D., Director of the Arkfeld eDiscovery and Digital Evidence Program (AEDEP) of the Arizona State University’s Sandra Day O’Connor College of Law in Phoenix, and Christine Chalstrom, J.D., proprietor of a litigation support company in Minneapolis.

Mr. Arkfeld opened the session by alerting the audience of the ABA’s August 6, 2012 adoption of additional language to comment 6 of the ABA Model Rule of Professional Responsibility 1.1: Competence.  ABA Model Rule 1.1 requires an attorney to provide “competent representation to a client.”  Comment [6]: Maintaining Competence was amended to include a lawyer’s obligation to keep abreast of “the benefits and risks associated with relevant technology.”

This amendment was described by Mr. Arkfeld to be a strong reminder of the ethical duty attorneys already have to follow discovery rules for all evidence, digital or otherwise, under the general competency requirement of Model Rule 1.1. As applied to e-discovery, Mr. Arkfeld listed certain attorney misconduct to avoid under Model Rule 1.1 including the “failure to inquire into and understand your client’s and adversary’s IT infrastructure and practices.” He cited Qualcomm Inc. v. Broadcom Corp. No. 05cv1958-B (BLM), 2008 WL 66932 (S.D. Cal. Jan. 7, 2008), vacated in part, 2008 WL 638108 (S.D. Cal. Mar. 5, 2008) to support this conclusion.  In this case Qualcomm was ordered to pay $8.3 million in sanctions for failing to turn over thousands of electronic documents that were responsive to defendant’s discovery requests.  The federal magistrate found that Qualcomm had intentionally suppressed these documents, and the magistrate also sanctioned 6 attorneys, all outside counsel representing Qualcomm, for failing to comply with FRCP Rule 26(g), which mandates that the attorney conduct “a reasonable inquiry” to determine if the discovery submission is sufficient and proper. Fed. R. Civ. P. 26(g); Fed. R. Civ. P. 26 Advisory Committee Notes (1983 Amendment).  According to Qualcomm, the sanctioned attorneys should have reviewed Qualcomm’s records to verify that the correct computers had been searched and that the appropriate search terms were used.

How can a solo practitioner or small law firm conduct a “reasonable inquiry” under FRCP Rule 26(g) to ensure that that a client’s electronic discovery submission is sufficient?

Mr. Arkfeld offers that Qualcomm Inc. v. Broadcom Corp., No. 05cv1958-B (BLM), 2010 WL 1336937 (S.D. Cal. Apr. 2, 2010), provides some guidance by indicating what the sanctioned counsel should have understood: 

1. “how Qualcomm’s computer system is organized”
2. “where electronic mail is stored”
3. “how often and to what location laptops and personal computers are backed up”
4. “whether, when and under what circumstances data from laptops are copied into repositories what records are being kept regarding the search for and collection of documents”
5. “what type of information is contained within the various databases and repositories”
6. “what records are maintained regarding the search for, and collection of, documents for litigation”

Id. at Qualcomm, 2010 WL 1336937 at *2.

In addition, the 2010 Qualcomm opinion states that outside counsel is responsible for supervising and verifying that the necessary discovery, as planned, was indeed conducted. Id. Are there circumstances under which counsel needs to make an onsite visit to understand their client’s computer network? Mr Arkfeld says yes.

At this point in the CLE presentation, some members of the audience expressed concern about how the average attorney could possibly become technology savvy enough to meet the guidance offered in Qualcomm Inc. v. Broadcom Corp., No. 05cv1958-B (BLM), 2010 WL 1336937 (S.D. Cal. Apr. 2, 2010). The learning curve for understanding a “computer system” or network, such that an attorney can supervise and verify the adequacy of the e-discovery process, seems incredibly high. At this time, the second presenter, Christine Chalstrom JD, proposed an approach in the context of the services her company offers to assist attorneys comply with e-discovery obligations. Following Ms. Chalstrom’s presentation, a panel comprised of attorney-practitioners with experience in e-discovery challenges answered questions.

What I took away from this CLE, was an awareness of the need for attorneys to become educated and skilled enough to meet the ABA Model Rule 1.1 duty to keep abreast of the “benefits and risks associated with relevant technology” as applied to conducting e-discovery. Based upon the presentation, reactions of the audience, and attorneys I know, more training is necessary for the average attorney to conduct “a reasonable inquiry” to determine the adequacy of an e-discovery submission under Fed. R. Civ. P. 26(g), and most likely, equivalent state and local court rules. According to Mr. Arkfeld, judges as well as practitioners could benefit from tutelage on the nature of electronically stored information (ESI) and the considerations that must be taken to properly collect, produce and eventually offer and admit it in court. I could not help but think about the online Case Management (CM)/Electronic Case Filing (ECF) training offered by the federal courts to practitioners and their staff. Perhaps free or low-cost comprehensive online training would help bridge the e-discovery technology gap to assist attorneys in meeting their competence obligation of ABA Model Rule 1.1 as applied to e-discovery.

2011 Computer and Technology Law Institute

Next week is, October 20, is the 2011 Computer & Technology Law Institute!

The conference includes sessions with the latest news, thoughtful analysis and practice tips about today’s key computer and tech law issues.

Featuring:

• Erica Newland, Center for Democracy & Technology, Washington DC, and Jerry Cerasale, Direct Marketing Association, Washington DC, on “On-Line Behavioral Advertising”
• Jon M. Garon on “Navigating through the Cloud – Legal and Regulatory Management for Software as a Service”
• Outstanding faculty including in-house perspectives from 3M, Best Buy, Medtronic, SunGard and Wells Fargo
• Nine information-packed, practical sessions including focus on cloud computing questions and answers; mobile data security; insurance coverage for data breaches; Internet power-houses’ policies and practices “as law” – plus your critical year in review
• 6.75 credits including 1.0 ethics credit (applied for)
• And more!

More details are available here (opens in a new window). 

Upcoming CLEs - the Institute and Social Media/Legal Issues

Reminder!!!  Check out these upcoming CLEs:

The Computer and Technology Law Institute on October 27th, 2009 (including discussions on the future of the internet, year in review, trade secrets, customer and employee data protections, social networking and ethics, and MORE!).

and

Finding Your Tweetzone: Balancing the Benefits and Risks of Business Social Networking on November 10, 2009, a discussion related to the legal issues surrounding the use, risks and other considerations of social networking tools being implemented by businesses.

Hope to see you there!

 

Minnesota CLE Course: Ethics--Computer Security for Lawyers

Minnesota CLE is hosting a presentation on Ethics and Computer Security, which will be transmitted via webcast.  This may be of interest to our Section's members who are solo or small-practice attorneys -- either in the Metro area or in Greater Minnesota.  It will cover some of the areas discussed at our Section Council meetings. Following is the MSBA's course description:

Friday, February 9, 2007, 9:00 - 10:00 a.m. CST
1.0 ethics credit
Tuition: $55

Lawyers should not only understand the advantages of technology, but should also be attentive to its risks. Computer security is an essential part of an attorney’s ethical obligations to protect client confidences and client property. This seminar will discuss how to approach computer security in your law practice, and how much security is enough. We'll look at issues such as:

• Assessing your office's security vulnerabilities to protect client data and confidences
  
• Protecting your identity while surfing
  
• Covering your tracks
  
• Understanding encryption, digital signatures and PKI
  
• Secure financial transactions
  
• Preventing intruder attacks
  
• E-mail security

This is essential information attorneys need to know to meet their obligations under Rule 1.6 and Rule 1.15 of the Minnesota Rules of Professional Conduct!

Presented by Lewis S. Eisen, The Professional Education Group, Inc., Minnetonka, Minn.