“Power Corrupts. PowerPoint Corrupts Absolutely.”

– The Internet

Four Horsemen of the Digital, Ethical Apocalypse

Alvin F. Lindsay

Hogan Lovells

Miami, Florida

Mining for Data

Blowing the Privilege

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

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.

Metadata Mining

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

    (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.)

Uniform Preservation of Private Business Records Act.

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 yearsKeep 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 years6 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

Fairness to Opposing Party and CounselA 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 4-3.4

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 4-3.3

Expediting Litigation

A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of a client.

Florida Rule of Professional Conduct 4-3.2

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CASELOAD STANDARDS

Annual Non-Capital Felony Caseload

0

50

100

150

200

250

300

350

400

450

ABA FPDA B&B FGC PD-11

“Inappropriate”

MCAFelony Mental Health

Bond Hearings

Drug CourtJSAP

ERU

Training Attorneys

Supervising Attorneys

MCAFelony Mental Health

Bond Hearings

Drug CourtJSAP

ERU

Division Attorneys

Training Attorneys

Supervising Attorneys

“Appropriate”

Always take the high road . . .

Lagniappe

TechnologyInLitigation.com

Thank you!

Alvin F. LindsayAlvin.Lindsay@HoganLovells.com