Happy New Year! Let’s get right to it: What are your resolutions for 2015? While going to the gym and eating healthier may be on your personal list, what about your professional one? We’d like to offer up three possible resolutions for consideration in the new year.
1. Elevate Your Technology Game
As digital devices and data proliferate, it’s important to be informed for the benefit of your clients and your career. Not only are lawyers required to “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology,” but also federal judges are growing more tech savvy and losing patience with counsel who aren’t keeping pace. In the words of U.S. Magistrate Judge James C. Francis of New York’s Southern District: “The absence of technical knowledge is a distinct competitive disadvantage.”
2. Make It the Year of TAR
According to Chinese astrology, 2015 is the Year of the Sheep. Why not make it the Year of Technology-Assisted Review, too? The benefits of this technology are many.
* First-pass tool: significantly speeds up access to important documents
* Review of opposing counsel’s production
* Serves as compliance tool by detecting potential risk patterns
Judge Peck was the first judge in this country to recognize the value TAR and suggest how appropriate it is. He has also championed TAR’s various uses, including the review of received production, especially since no negotiation with opposing counsel has to occur to do so. Today, there are about 15 domestic decisions expressly approving of TAR. Recently in Dynamo Holdings Limited Partnership and Dynamo GP Inc., Tax Matters Partner v. Commissioner of Internal Revenue, the tax court considered it a legitimate approach.
3. Create a Sound, Enforceable BYOD Policy
The blurring of professional and personal lives through Bring Your Own Device (BYOD) programs can not only be problematic for employees seeking work-life balance, but also for companies pressed to provide adequate data security on those same devices, especially in advance of possible future litigation.
Under Fed. R. Civ. P. 34, whether discovery obligations are tied to employees’ personal devices depends on whether those devices are within the “possession, custody or control” of that company. While pertinent case law is not particularly ample, there are a handful of significant cases that address discovery of data on personal devices used for business purposes, for example In re Pradaxa (Dabigatran Etexilate) Products Liability Litigation out of the Southern District of Illinois.
Rather than try to stifle employees’ (or a company’s) adoption of technology or limit it to company-issued devices, a company would be best served by learning how to adapt. In the year ahead, consider reducing legal and liability risk for your company by creating a sound, enforceable security policy. For more on how to create such a policy, consider reading our recent BYOD white paper.
With such a policy in place, a company can feel confident in reaping the benefits that BYOD offers, including hardware cost-savings and a more efficient and productive workforce.
We wish you great professional and personal success in the new year. We appreciate your readership and look forward to bringing you more topics of interest in 2015.