GCs: In-House Life Overloaded With Meetings, Bureaucracy

Katheryn Hayes Tucker
Fulton County Daily Report

Establishing trust with businesspeople is a key to success for a general counsel, according to a panel of GCs who offered advice and tips in a program for the Association of Corporate Counsel Georgia chapter last week at the Cumberland Maggiano’s Little Italy.

Keith Scott, senior managing attorney for Rollins Inc., parent of Orkin Exterminating, said when he joined the company 11 years ago, his first assignment was to spend a hot June day in Florida drilling holes in concrete to insert chemicals to kill termites. He said he quickly developed empathy for people working in other departments of the business.

Teresa T. Kennedy, assistant general counsel for Cox Communications Inc., said she studied the culture of the company and the different departments within it to learn how to communicate. She also learned to follow the word “no,” with “but…” and offer alternatives when she had a legal issue with a business goal.

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For more see Fulton County Daily Report (via Law.com).

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Senate Judiciary Committee Passes Evidence Rule 502

The Senate Judiciary Committee approved S. 2450 without amendment.  The bill would amend the Federal Rules of Evidence to add new Evidence Rule 502. See Library of Congress

The legislation addresses waiver of the attorney-client privilege and work product protection and is identical to proposed language approved by the Judicial Conference of the United States and submitted to Congress for its consideration in 2007.  Any new rule of evidence requires an act of Congress to take effect.  See 28 U.S.C. § 2074(b).  New Federal Rule of Evidence 502 is expected to become law in December 2008.

Amid scandal, NY archivist calls for better record keeping

BY JOSEPH SPECTOR
Albany Bureau

ALBANY — The state’s archivist warned Tuesday that New York may be entering the “digital dark ages” if it doesn’t better account for electronic records being produced at the state Capitol.

The strong message from Archivist Christine Ward came during a hearing by Senate Republicans on accusations that the Spitzer administration had deleted emails and other records pertaining to the so-called Troopergate scandal.

A Spitzer spokesman said all records have been retained.

The Senate Investigations Committee called witnesses to testify on whether emails and other electronic records could be easily destroyed or retrieved. Experts said that in most cases, records could be recovered through forensic technology.

But Ward gave the most compelling testimony, warning that in the electronic age it’s becoming increasing difficult to file documents in the state archives, which are kept in Albany.

For instance, she said advances have made it difficult to even access old technology, such as using old floppy computer discs. Moreover, information is often deleted inadvertently, she said. She called for new laws to better outline how public electronic records should be kept.

“We are faced with the very real possibility that much of our state’s modern history is in danger of being lost,” she said.

Last year, Spitzer aides were accused of compiling travel documents on Senate Republican Majority Leader Joseph Bruno’s use of a state helicopter, claiming he used the aircraft for political purposes.

While state Attorney General Andrew Cuomo and the Albany County District Attorney’s office found no criminal wrongdoing, Bruno and other critics have blasted the Democratic administration, and Spitzer suspended then-communications director, Darren Dopp, for his role in the scandal.

For more on this story, see pressconnects.com.

New niche for e-discovery: special masters

CORREY E. STEPHENSON

BOSTON — The increased use of electronic discovery has resulted in a new set of practitioners: e-discovery special masters.

A special master is an officer of the court appointed to help with its proceedings, and may perform functions such as taking testimony or advising the court as a neutral expert.

“Essentially, you represent the judge and the court as an independent in evaluating technological disputes and electronic discovery issues,” explained Peter S. Vogel, chair of the Electronic Discovery and Document Retention Team and co-chair of the Internet and Computer Technology Practice Group at Gardere Wynne Sewell in Dallas.

Vogel, a partner at the firm, has worked on more than 20 cases with some form of an e-discovery special master.

The role varies, explained Judge Shira Scheindlin, a U.S. District Court judge in the Southern District of New York and the author of several seminal opinions on e-discovery, including Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004).

Courts can appoint an electronic discovery special master “for a narrow dispute, such as a privilege review, or a broader task like supervising all discovery,” she said.

Special e-discovery masters have become prevalent because over the last few years, “the level of technical detail simply outgrew what judges and counsel could comprehend,” explained Craig Ball, a trial lawyer and technologist in Austin, Texas, who has served as a special master in approximately two dozen cases.

“When neither the attorneys nor the court felt able to ask the right questions or understand the answers, that created the need for a technical special master,” he said.

For more see Daily Record.com.

Datamaps Mitigate Risk under the Federal Rules of Civil Procedure and Meet Evolving Attestation Requirements under Section 404 of Sarbanes Oxley Act

Employees perform,collaborate and execute tasks more efficiently when able to find the information they need when they need it; there are legal discovery cost savings to consider as well.

The impetus for developing a so-called datamap comes from the Federal Rules of Civil Procedure, specifically the procedural requirements of Rule 26(f), which requires parties to discuss ESI (electronically stored information) at the outset of each case. The commentary to the new rule states in pertinent part that:

When a case involves discovery of electronically stored information, the issues to be addressed during the Rule 26(f) conference depend on the nature and extent of the contemplated discovery and of the parties’ information systems. It may be important for the parties to discuss those systems, and accordingly important for counsel to become familiar with those systems before the conference. With that information, the parties can develop a discovery plan that takes into account the capabilities of their computer systems. In appropriate cases identification of, and early discovery from, individuals with special knowledge of a party’s computer systems may be helpful.

It is easier said than done, but organizations need help with the design and development of a reliable process for understanding where information is stored there are broader organizational benefits to consider.

A reliable and defensible datamap could address potential deficiencies in internal technological controls and enable organizations to institute key processes in compliance with a series of evolving requirements under the Public Company Accounting Reform and Investor Protect Act of 2002 (“SOX”) as related to records and information management.  See J. Randel L. Kuhn, Jr., “Electronic Records Management and Sarbanes-Oxley Compliance: A Case Study of the COBIT Approach,” The Icfai Journal of Audit Practice, Vol. 4, No. 4 (Oct. 2007) (“Kuhn Study”).

The management and handling of ESI should be considered an entity level control examined as part of the SOX 404 attestation process. The Kuhn Study focused on utilizing the COBIT (Control Objectives for Information and related Technology) framework to comply with Sections 302 and 404 requirements, specifically as they relate to the retention and availability aspects of electronic document management. Id. The Study examines reported IT material weaknesses in internal controls over financial reporting specific to electronic records management and presents the findings of a case study where a global conglomerate applied the COBIT framework to successfully comply with SOX.

To comply with SOX attestation requirements, “global organizations face a daunting task of defining financial records, identifying and implementing appropriate records management procedures, and coordinating efforts across business units and geographic locations to ensure consistent application of prescribed policies and procedures.” Id. By putting in place a process for identifying the location of unstructured and structured information stored on network systems, organizations will be able to meet these evolving controls requirements under SOX.

When considering all the benefits of being able to find what you need when you need it, don’t loose sight of how a comprehensive datamap will improve internal controls and help satisfy evolving requirements under SOX 404.

Greenberg Traurig Freezes Equity Partner Pay, Cites Cost-Conscious Clients

By Debra Cassens Weiss

Equity partners at Greenberg Traurig won’t be getting an immediate pay raise because of a $10 million shortfall in year-end collections, driven in part by clients who want legal bills reduced.

A memo from chief executive officer Cesar Alvarez said the salaries would remain “at present levels until we get a better financial picture for 2008,” the Daily Business Review reports. Alvarez told the Daily Business Review that the firm is taking a cautious approach, a tactic that helped it weather past recessions.

The blog Above the Law first broke the news, posting two internal memos, one announcing the freeze and a second clarifying that it does not affect associates. The first memo said an increasing number of clients are asking for adjustments to hourly rates or bills and refusing to allow inexperienced lawyers to work on their cases.

The memo cited factors affecting the legal industry, including “a slowing economy, tighter credit markets that make transactions more difficult, a troubled housing market, a high level of consumer debt (over 50 percent of our economy is based on consumer spending), high gas prices, and significant cost pressures in the economy and by our clients.”

“The legal industry and our firm began to see the impact of these factors in late 2007,” the memo said. “In addition, costs in the legal industry, including our firm, continue to go up at levels that, in our opinion, are not sustainable. We can not control the legal industry, but we can control what we do in our firm.”

Did Lawyer’s E-Mail Goof Land $1B Settlement on NYT’s Front Page?

By Debra Cassens Weiss

An outside lawyer for Eli Lilly & Co. apparently has two people named “Berenson” in her e-mail address book. One is a reporter for the New York Times and the other is her co-counsel assisting in confidential negotiations on a possible $1 billion settlement between the pharmaceutical company and the government.

The question is whether her e-mail to the wrong Berenson spurred last week’s front-page New York Times story revealing talks to resolve criminal and civil investigations into the company’s marketing of the anti-psychotic drug Zyprexa, as Portfolio.com reports.

The unidentified lawyer who wrote the e-mail works at Pepper Hamilton in Philadelphia, the story says. She was trying to e-mail Bradford Berenson of Sidley Austin rather than Times reporter Alex Berenson.

The Drug and Device Law blog contacted Berenson, the reporter, who said he did receive an e-mail, but it did not contain a detailed description of the status of the settlement talks. Berenson told the blog he got his information from other sources.

For more see ABA.com.