Electronic discovery and its transformational consequences have been a defining feature of 21st century litigation. The sheer proliferation of data and associated complexity has necessitated the development of specialized software to manage and catalog this information. Data have become so complex that protocols surrounding metadata, i.e., data about data, have become a regular aspect of the discovery process. Agreements regarding the use and discoverability of electronically stored information (ESI) are commonplace in any case with a sufficiently large volume of documents.

Overlapping with the rise of e-discovery, and partially driven by it, has been the increasing prevalence of parties seeking protective orders. While the use of protective orders in litigation predates e-discovery, some producing parties now use the sheer volume of data available as an excuse to seek protective orders governing its disclosure. Litigants are often forced to “negotiate” protective orders and ESI protocols to jointly submit to the court. But these negotiations are a classic case of information asymmetry; the party with access to more data has a clearer idea of how to craft these agreements in its favor. Exploiting this leverage can prevent the unwanted disclosure of information that otherwise would become part of the public record.

In legal systems that value transparency, as ours tries to, court filings are the archetypal example of something falling within the public record. Some parties, however, are uncomfortable with resolving their disputes in a public forum, especially defendants who may face potential liability from future plaintiffs bringing similar suits. To avoid such transparency, a growing trend has been for parties to seek protective orders governing the use and disclosure of “confidential” information before even moving forward with the discovery process.

While the litigation process has always involved access to personally or commercially sensitive information, these concerns have multiplied in the digital age. Unfortunately, parties wishing to prolong or delay the litigation process often use their usual arsenal of tactics through raising boilerplate objections, filing responses at the last possible moment, and seeking extensions whenever available. And the use of protective orders, originally conceived as an exception to the general rule, has been weaponized by some parties as just another dilatory tactic to obstruct the litigation process. This column discusses the history of protective orders, their modern usage, and when this usage strays into the territory of abuse.

In the past, discovery would typically be filed with the court, to which the public had a presumptive right of access. See Robert Timony Reagan, ”Confidential Discovery: A Pocket Guide on Protective Orders,” Federal Judicial Center, at 2 (2012). As cases grew more complex, it quickly became unwieldy for courts to store the discovery records for every case listed on their docket. This led to the modern practice of exchanging discovery between the parties only, and attaching only relevant exhibits for the court to review.

While most discovery is no longer filed with the court, a strong presumption still exists of public access to evidence admitted at trial or considered by courts when deciding the merits of a case. This is more than just public policy underlying the discovery process; it falls within the ambit of First Amendment rights, as discussed in Seattle Times v. Rhinehart, 467 U.S. 20 (1984). There, the leader of a religious group allegedly engaged in scandalous and sensational practices sued the Seattle Times for its coverage of his church. During discovery, the Seattle Times sought information relating to the financial affairs and membership of the organization. The plaintiffs, whose very purpose for instituting the suit was to stop the allegedly defamatory coverage of their organization, obviously did not want to give the newspaper further ammunition. To prevent this, the plaintiffs sought and were granted a protective order prohibiting “publishing, disseminating, or using the information in any way except where necessary to prepare for and try the case.”

On appeal, the Seattle Times raised First Amendment grounds, arguing that there was a legitimate public interest in this information and that the protective order acted as an unconstitutional prior restraint on free speech. While the Supreme Court agreed that information obtained through discovery will almost always be protected speech, that does not mean “that a litigant has an unrestrained right to disseminate” such information. Because the rules allowing parties to obtain discovery at all “are a matter of legislative grace,” the court held that the legislature is equally free to allow protective orders governing the dissemination of this information.

The Supreme Court’s opinion in Seattle Times assuaged many of the concerns trial courts had regarding the issuance of protective orders. A decade after its issuance, the U.S. Court of Appeals for the Third Circuit analyzed the “widespread and increasing use by district courts of confidentiality orders to facilitate settlements, and the consequential sacrifice of public access to the information deemed confidential by such orders.” See Pansy v. Borough of Stroudsburg, 23 F.3d 772, 775 (3d. Cir. 1994). There, a third party-intervenor newspaper sought to obtain copies of a settlement agreement purportedly protected by a confidentiality order. Finding that the potentially untimely intervenors nevertheless had standing to challenge the confidentiality order, the Third Circuit relied on the strong public policy arguments favoring disclosure, Pennsylvania’s freedom of information laws, and the general consensus among courts that such orders should be subject to significant scrutiny.

As the Pansy court observed in 1994, “disturbingly, some courts routinely sign orders which contain confidentiality clauses without considering the propriety of such orders, or the countervailing public interests which are sacrificed …” Unfortunately, this trend shows no signs of abating, and it has become common practice for producing parties to seek protective orders limiting the public’s access to information obtained in discovery. “Umbrella” protective orders, which allow a party to designate whatever documents they see fit as confidential, are routine in many forms of litigation. While the burden is always on the party seeking confidentiality to demonstrate good cause for such a designation, these umbrella protective orders place the burden of raising such an objection on the non-producing party. See Cipollone v. Liggett Group, 785 F.2d 1108, 1122-23 (3d. Cir. 1986).

The good faith use of umbrella protective orders can legitimately improve the speed and efficiency of litigation, as it needlessly prolongs discovery if a producing party has to individually move document-by-document to designate clearly confidential records as such. This is still true in modern litigation, which can involve the production of voluminous and highly sensitive ESI. But umbrella protective orders can also be easily abused. A producing party’s wanton or excessive use of confidential designations forces their opponent to challenge these designations document-by-document. Further, a common feature of most e-discovery platforms is the ability to mass-designate a selection of documents as confidential, allowing producing parties to easily designate thousands of documents as such but forcing challenging parties to raise their objections document-by-document. While the legal burden never shifts from the producing party, litigants wishing to delay or drive up the cost of litigation can easily do so through frivolous use of confidential designations.

Of course, none of this is to say that protective orders should never be issued. There are sometimes compelling reasons that a confidentiality order should be entered, with the classic example being to protect trade secrets. See Reagan, Confidential Discovery at 7. In suits between competitors within the same industry, it is common practice for courts to allow “attorney eyes only” designations to prevent the harmful disclosure of proprietary information. Such an order prevents counsel from sharing relevant information with their own client in order to ease concerns regarding the improper dissemination of commercially sensitive documents. Further, because the metadata associated with these documents can easily track who has accessed them, such designations no longer must rely on the honor system.

Even compelling rationales like protecting trade secrets cannot justify using disproportionately broad and untethered confidentiality orders. In Smith v. BIC, 869 F.2d 194 (3d. Cir. 1989), the plaintiff, allegedly injured by a defective lighter, sought discovery regarding “design information, safety test results, and information regarding other complaints and accidents.” The defendant corporation raised the usual objections of relevance and overbreadth, but also sought a confidentiality order to protect its trade secrets. The trial court denied such an order, and BIC Corp. predictably appealed. On review, the Third Circuit found that the defendants had stated good cause for a protective order relating to trade secrets, but that the order should be limited to just those: trade secrets. Despite BIC’s contentions, records relating to other complaints and accidents were not trade secrets, and the defendants failed to state sufficient reasons that this information should be protected.

The increasing prevalence of broad, disproportionate confidentiality orders is a concerning trend, especially because they are frequently abused by producing parties (usually defense counsel) seeking to sandbag the litigation process. When handling a case involving a lot of ESI, practitioners should negotiate both ESI protocols and confidentiality (or protective) order from the very beginning of the case. Some counsel will likely insist on a very broad definition of the term “confidential material” on a protective order (e.g., insisting that anything personal or proprietary would be confidential even though, by definition, any nonpublic material is generally either “personal” or “proprietary”). Even if the negotiation process takes some time and efforts, it would be prudent to have a narrow definition of “confidential material” (e.g., limiting the definition to include only trade secrets). Protective orders were originally developed as an exception, not the norm. While e-discovery has exponentially increased the volume of discovery available, practitioners should not conflate size with sensitivity.

In the April 2021 Young Lawyers Issue of Law Practice Today, Kandis Kovalsky wrote “Zoom Court Appearances: Rising to the Occasion While Seated”

On March 13, 2020, a national emergency was declared in the United States as a result of the COVID-19 pandemic. Instantly, courts across the country were shuttered. Many courts, particularly the federal courts, quickly rallied and embraced Zoom as a means to continue to hold hearings and move the many criminal and civil cases on their dockets. Some lawyers reveled in the courts’ embracement of Zoom, as the legal profession is often criticized as being somewhat of a dinosaur. Others were initially less excited about having to use a webcam and embrace modern technology, and while appearing in court, no less. Indeed, some lawyers even exclaimed that using Zoom (e.g., the technology) is more stressful than participating in the hearing itself.

Some of those initial cynics have now adjusted, and appreciate the practicalities that Zoom offers over having to travel by plane, train, or automobile to appear for an in-person hearing that lasts a few hours or less. But lawyers by and large seem to agree that, at least for major events like evidentiary hearings or oral arguments on dispositive motions or temporary restraining orders, Zoom offers a much-less satisfying alternative to a courtroom—the majesties of which cannot be replicated virtually.

The extent to which courts will continue to uses Zoom after the pandemic remains to be seen, but for now, and likely the rest of 2021, courts will continue to hold hearings on Zoom. As such, learning Zoom etiquette for court appearances is critical. We are slightly more than a year from when the legal profession cozied up to Zoom, yet I still see and hear of lawyers making embarrassing mistakes. So, while some of the below tips may seem obvious and mundane, they all correspond to mistakes I have heard of or seen lawyers make recently. The good news is that these tips are all easy to follow.

Here are nine important tips for setting yourself, and your clients, up for success while appearing before a court on Zoom.

Suit Up.

Just because your daily work attire has likely become relaxed, does not mean your court attire can or should. We have all heard of the term “dress for success,” and this principle remains the same for court appearances on Zoom. How you dress is also an important part of courtroom decorum. Generally, men should appear in court in a suit and tie, and women should appear either in a suit, or alternatively, a dress, or skirt and blouse combination. Lawyers should dress for a Zoom hearing as they would for an in-person hearing (although, ladies can probably safely skip the heels). In the last year, I have seen and heard of lawyers appearing before judges not only not in suits, but in hoodies (!), t-shirts, sweaters, unbuttoned shirts, and without ties. Dressing like this before a (likely robed) judge is disrespectful to the court and a disservice to the clients being represented. I recommend strictly following this tip, and not taking any liberties with it. By that I mean I would not even risk wearing jeans, spandex, or sweatpants (with the idea being only your top half will be seen on the camera while you are seated), because you may have to get up during the hearing for any number of reasons (I have). By the way, the lawyer in the sweater was reprimanded by the judge. Not a position any lawyer wants to be in, ever.

Speak Slowly.

Audio lags happen on Zoom for a number of reasons. While it is always important to speak slowly, it is even more important to do so during a Zoom hearing. This tip is especially important if a court reporter is transcribing the hearing. I recently participated in a hearing where the judge had to request, more than once, that one lawyer arguing speak slower because the court reporter could not transcribe what was being said. Speaking too fast often occurs when reading notes, so I would suggest that you also do not read an argument word-for-word from your notes. This strategy is not effective in a courtroom, and nor on Zoom.

Kill the Noise.

And, I mean, all noise. Just like electronic devices must be turned off, or at least silenced, in the courtroom, they should be turned off or silenced while you are participating in a virtual hearing. If you are participating in the hearing from your office, then I recommend placing a “Do Not Disturb” sign on your closed office door, placing your landline on “Do Not Disturb,” silencing your mobile phone and silencing any sounds on Microsoft Outlook, Teams, Skype, or another messaging platform. If you are working from home, do the same, and no, it is not acceptable to say “Sorry, your honor, that is just my dog.” Dogs are cute, but they have not filed an entry of appearance, and should not make any guest appearances during your hearings. Prepare ahead of time so the space you will be using for the hearing will be free of possible noise from children, dogs, birds, cats, etc. If necessary, meaning you cannot ensure an animal or kid-free noise zone for the hearing, make arrangements for a relative, neighbor, friend, or babysitter to look after your kids or pets.

Don’t Lean Back.

This is an easy one to forget, especially with longer hearings with multiple participants, but remember to sit upright throughout the hearing. Just like you would not slouch in your chair in a courtroom, you should not slouch in your chair while participating in a Zoom hearing. Slouching and leaning back, while not as bad as the hoodie, signal a too relaxed and casual attitude. I recently participated in a hearing where opposing counsel was leaning back the entire time, even while he was addressing the court. I found it to be distracting and unprofessional, which means the judge likely did as well. Save leaning back for your post-hearing victory dance.

Tech Check.

The day before any hearing, restart your computer to make sure it installs all recent updates. Also, make sure that you have the most recent version of Zoom installed, and the most recent version of any other program you intend to use during the hearing, like Adobe, Microsoft Word, or Microsoft Teams. Recently, during an oral argument, my Adobe froze. I was using Adobe to access copies of the pleadings and other relevant filings, so this was a problem. Additionally, during the oral argument, I was concerned that the freezing of Adobe would affect my Zoom connection with the court, but thankfully it did not. It did, however, provide an unwelcome distraction, which is not something you want while appearing in court. After you restart your computer and make sure you are using the most up-to-date version of Zoom, do a test run of Zoom, including a soundcheck. Separately, make sure that your name appears on Zoom as your first and last name. When you join a Zoom meeting, you should receive a prompt that allows you to type in your name how you would like it to appear. Sometimes, if you do not do this, your name will as an unclear default—e.g., “Kandis’ iPad.” Lastly, this should go without saying, but check, under the settings tab on Zoom, that you do not have any strange filters turned on, like a cat….

Don’t Be Camera Shy.

If a court schedules a Zoom conference, assume that you should appear using video. I have seen attorneys of record dial-in with a phone to a Zoom hearing, and then have to switch to using video (which is what led to some of the unfortunate attire selections discussed earlier). Obviously, always read the text of the applicable order and check in advance with the clerk or courtroom deputy about the judge’s intentions or preferences, but if a court schedules a hearing on Zoom, as opposed to a conference line, it is safe to assume that the court intends for the parties to appear on camera—even if the judge might not. My colleague recently participated in a hearing where the judge was not using the video function but required that the parties use it. When addressing the court, look into the camera. This will make it seem to the judge that you are making eye contact. If you are looking at the judge (or anything else) on your screen, you will appear as though you are looking down. Once you are “in” a virtual court hearing, avoid “leaving” the hearing—meaning, avoid turning your video off without first notifying the court. Repeated entrances and departures in the middle of a hearing in court would likely not be accepted, and the same rule applies to Zoom too. Last, make sure the area you will be attending the hearing has appropriate lighting. If your screen is too dark, the judge cannot properly see your face. Generally, the lighting behind your camera should be brighter than the lighting behind you. If there are windows in the room you will be using, position yourself to face the window rather than have the window behind you. As someone with two big skyscraper windows behind her and who cannot easily sit on the other side of her L-shaped desk, I appreciate this can be tricky. A lifesaver can be found in the “Adjust for low light” setting under the Video Settings in Zoom. In this same tab, you can also use the “Touch up my appearance” scale to brighten up your image. You’re welcome.

Surround Yourself with Less.

Your surroundings say a lot about you. Look at the background of the space you intend to use for the hearing (which I know is already immaculate) and consider whether it contains any pictures, posters, artwork, or things that would be controversial, distracting, or that could paint you in an unfavorable or unserious light (even if unfairly). I would strongly suggest that attorneys remove any political posters, books, or memorabilia from the view of the camera. Beyond that, this one involves largely good judgment and reasonable minds can differ on what is distracting and potentially unfavorable. I want the court to focus on me, not what is behind me, so I avoid having any personal pictures, sports memorabilia, books, or other clutter behind me.

Five Minutes Early Is On Time.

I always enter any Zoom hearing five to seven minutes early. This way, I have a buffer to deal with tech issues. I routinely see attorneys arriving to Zoom hearings a few minutes late, even after the host (the court) has started the meeting, because they had “trouble with the link.” Avoid having to be in a position of apologizing to the court by joining the meeting five minutes early.

Pass Virtual Notes.

Gone are the days where we have to furiously scribble down our thoughts on yellow sticky notes and then stealthily pass them to our co-counsel, all the while hoping we are not distracting the court. Now, we can pass virtual notes. I recently used Microsoft Teams, which our office uses, to correspond with my legal team (all of whom were in different places) during an oral argument. It was a great experience. Most of us type faster (and neater) than we write by hand, so I was able to communicate with my team with ease while still listening to everything the judge and opposing counsel said. During the oral argument, one of the lawyers on my team ended up sending me a key suggestion, which I was able to address and weave into my rebuttal argument. Just remember that when you are passing virtual notes—keep the sound off!

Remember that just because you are seated, does not mean you should not rise! Good luck.

About the Author

Kandis L. Kovalsky is a member of Kang Haggerty LLC, a business law firm in Philadelphia, PA. She is co-chair of the ABA Litigation Section, YLD Division. Contact Kandis at kkovalsky@kanghaggerty.com.

Reprinted with permission from the  April 2021 edition of “Law Practice Today” © 2021 American Bar Association.  All rights reserved. Further duplication without permission is prohibited.

Bill A3861 allows corporations to hold their shareholders’ meetings in part, or entirely, by means of remote communication during states of emergency. The board must authorize and adopt guidelines and procedures that would govern such a meeting. The key revision in this bill is that formerly, some shareholders could participate remotely in meetings, but the shareholder meeting had to be held at a physical location. This bill provides that the entire meeting can be held remotely, if need be.

Bill A3850 provides similar revisions, in that the bill authorizes public bodies (public boards, councils, committees, etc.) to conduct meetings and public business via remote communication methods. Notably, now these public bodies can provide notice of meetings via internet posting. The bill provides warning, however, that the issues discussed during the meeting remain limited to the “matters necessary for the continuing operation of government and that relate to the applicable emergency declaration.”

Bill A3903 intends authorize the notarization of documents via remote communication methods during the current public health emergency and state of emergency in New Jersey. It is likely to be enacted, as it passed almost unanimously in the Assembly. Although remote notarization is a relatively new concept, some States have already enacted it (even before the current crisis), particularly in connection with remote location depositions and the need to swear in witnesses. In other words, there are already guidelines to follow which ensure the integrity of notarization. Removing the necessity that people physically “appear” before the notary is expected to reduce the likelihood of transmission and #flattenthecurve with respect to COVID-19.

Jacklyn Fetbroyt is a founding member of Kang Haggerty LLC and is currently a committeeperson of the Voorhees Township Committee. Among other things, Jackie focuses on counseling companies and business owners through all stages of their ventures from conception to dissolution, assisting her business clients in all of their needs for maintenance and growth. On Township Committee, Jackie strives to be a resource to and ears of the residents in her hometown. 

In this ever-changing landscape of information and legislation, please be aware that the information contained in this blog post may no longer be relevant or applicable. The content of this post is for informational purposes only and should not be construed as legal advice or legal opinion. 

Remote depositions allow the deposition to proceed even though the witness is not in the same room as some or all of the other participating counsel and other persons entitled to be present.

As social distancing, travel limitations and working from home have become the norm due to the coronavirus (COVID-19), lawyers should give renewed consideration to conducting depositions by remote means. Remote depositions allow the deposition to proceed even though the witness is not in the same room as some or all of the other participating counsel and other persons entitled to be present.

Federal Rule of Civil Procedure 30(b)(4) and similar state rules authorize remote depositions by stipulation of the parties or court order. Having conducted several depositions through remote means recently, including expert depositions, our firm attorneys believe the benefits of taking remote depositions far outweigh the perceived limitations.

To conduct a remote deposition under the federal or state rules merely requires the parties to stipulate they agree to do so. The stipulation should be in writing but need not be filed with the court or conditioned on court approval so long as the stipulation does not affect the terms of an existing scheduling order or other court order. Since the noticing party generally determines the location of the deposition, its counsel can raise the subject of taking its depositions remotely. Still, any counsel for a party or third-party witness is free to raise the issue. The subject of whether to conduct depositions remotely also should be an item for discussion at the Rule 26(f) conference. It should be addressed in the parties’ report on the conference submitted to the court.

If a party or other counsel refuses to cooperate in agreeing to conduct a deposition remotely on mutually agreeable ground rules, the requesting party can readily seek and obtain a court order for remote depositions. A California federal court, in granting a motion to take video depositions of two South Korean witnesses, found that leave to conduct depositions by telephone should be liberally granted and that a desire to save money constitutes good cause for granting a motion for remote depositions, see Carrico v. Samsung Electronics, Case No. 15-cv-02087 (N.D.Ca. Apr 1, 2016). The court cited to a number of other district courts which it stated, “have found that remote videoconference depositions can be an effective and efficient means of reducing costs.” Given the risk of infection presented by COVID-19, there is a compelling rationale for a finding of good cause by a court for taking depositions remotely if opposing counsel will not agree to do so without leave of court.

Once it is established that a deposition will be conducted remotely, it is important to put in place mutually agreeable, practical arrangements for conducting the remote deposition in an efficient and effective manner. For example, Rule 30(b)(5)(A) provides that unless the parties stipulate otherwise, the deposition “must be conducted before an officer appointed or designated under Rule 28.” The reference to “conducted before” implies the officer will be in the presence of the deponent. Having the court reporter who will administer the oath and keep the stenographic record of the deposition physically present with the deponent carries ancillary benefits to all participants in a deposition conducted remotely. Physical proximity to the deponent maximizes the ability of the court reporter to hear the witness, make an accurate written record, and provide professional and technical assistance if issues arise during the deposition.

Maria Damiani, CEO of Elite Legal Solutions, which has long provided remote deposition services, explains that “we are following closely the guidance of the Centers for Disease Control so that our reporters assigned to depositions are compliant and symptom free. We also are instructing our reporters to follow the six-foot rule, which means they will be positioning themselves a bit further away from the witness but still be able to make an accurate record.” In setting up a recent remote deposition, Elite arranged for its reporter to go to the home of the deponent, who was under medical advice to avoid travel and proximity to groups of people, so the deposition could proceed remotely on schedule.

It is not necessary that counsel for the witness be physically present with the witness, and we have found that counsel for witnesses will agree to not insist on being physically present. For counsel to participate remotely, all that is necessary is for everyone involved to connect to the deposition using Zoom or another free internet-based videoconferencing tool. The court reporter can bring a laptop with a web camera and microphone to the deposition site so that the deponent can be seen and heard by the other participants. Each participant can be seen by the deponent and the other participants by accepting an invite circulated by the court reporting service to join the Zoom videoconference when the remote deposition is ready to begin. Each participant can elect to participate by audio by either using computer audio or by calling into a toll-free telephone conference line.

At the beginning of the deposition, the court reporter or the questioner can describe the manner in which the remote deposition is being conducted and what a participant can do if he or she loses the video or audio connection to the deposition. Depending on the strength of the internet connection the image of a participant may freeze, but in our experience the audio quality has been consistently excellent. If a participant is speaking using computer audio, it is important to be sure and squarely face the laptop being used. Otherwise, the reporter and others may not hear the participant clearly. If a voice is disrupted, the court reporter or another participant unfailingly immediately raises the issue, which is solved by having the person turn directly to face the computer being used and restate the question or comment.

Some believe that remote depositions are most appropriate when the deposition is anticipated to be short and few exhibits will be involved. Based on our experience—our firm focuses on business litigation matters involving many exhibits, including lengthy financial records—even lengthy depositions with dozens of exhibits can be readily conducted remotely. An approach we have used successfully is to arrange for all potential exhibits to be placed in separate folders with numbered tabs, which are provided to the court reporter beforehand, then called up during the deposition by numbered tab, then marked with exhibit numbers.

To make the exhibits available to other counsel during the remote deposition, each new exhibit can be shared when it is marked by sending it to the other participants as a pdf attachment to an email. It is good practice to withhold questions about each exhibit until the questioner has confirmed on the record that the other participants have received the exhibit and that the document they have is identical in appearance and number of pages to the one marked for use with the witness. Of course, if counsel elects to participate together in the same conference room elsewhere, then hard copies of each exhibit can be distributed to those in attendance as they are marked.

Being physically present with a witness may still be the best way for the examiner to experience and evaluate a witness’ body language, tone or emotion. Taking a deposition with a witness in the same place as the examiner might even be necessary when the examiner believes the witness will be evasive. This is especially true when the evasive witness is coupled with opposing counsel who would likely engage in obstructionism during the deposition. With today’s technology, however, there is a little difference between in-person depositions and videoconference depositions, at least for evaluating and reacting to a witness’ demeanor. In the age of COVID-19, Damiani of Elite Legal Solutions believes “remote depositions may be the perfect way to go to protect yourself and others until this threat dies down.” We agree.

Edward T. Kang is the managing member of Kang Haggerty LLC. He devotes the majority of his practice to business litigation and other litigation involving business entities. Contact him at ekang@khflaw.com.

Reprinted with permission from the March 19, 2020 edition of “The Legal Intelligencer” © 2020 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.

Although a European regulation, the GDPR has affected American companies and, as it appears, has also begun to shape American law and policy. GDPR’s strict regulations and rules do not simply apply within the EU and the European economic area—it affects anyone who does business with a person living in those countries.

Last year, I wrote an article that discussed the implications of the European Union’s (EU) General Data Protection Regulation (commonly referred to as GDPR), which came into effect last May. GDPR’s goal was to create and to ensure the rights of European Union and European economic area citizens to protect their personal data. In the wake of numerous data breaches and many company’s morally gray handling of their customers’ personal data, the implementation of the GDPR gives people the chance to understand better and control the dissemination and use of their personal data. The regulation also insists upon a high level of care from any data handler so that personal information is better protected.

Several years ago, my insurance broker suggested I get cybersecurity insurance for my firm. It seemed a cybersecurity insurance policy was unnecessary, not much different from having an undercoating for a new car. That was then. Now, the benefits of having a cybersecurity insurance policy are not reasonably in dispute these days. In addition to having the security of insurance, another (and more important) benefit of getting a cybersecurity insurance policy was the requirement that I have an IT security and breach policy that deals with how to prevent a security breach and what to do if there is a security breach. While getting a cybersecurity insurance policy may still remain an option for many, having an IT security policy describing detailed procedures to protect against a cybersecurity attack (and what to do when the system is breached) is a must.

Need for Cybersecurity Measures

At the end of September, Edward, Kandis and Jacklyn Fetbroyt, Member of Kang Haggerty, joined hundreds of other lawyers at the 2018 Annual Meeting of the National Association of Minority and Women Owned Law Firms (“NAMWOLF”) to promote diversity in the legal profession through meetings, sessions and CLEs.  Kang Haggerty presented a hit CLE to a full room titled “Emojis Speaking Louder Than Words? The Import of Emojis, Emoticons and Hashtags as Evidence at Trial and Beyond #😊.” Joined by five other panelists and a moderator, Edward discussed evidentiary and ethical issues involving emojis, social media and technology and why lawyers should care about emojis and hashtags.

By explaining how emojis can be used as critical evidence at trial, Edward and the other panelists helped practicing lawyers from all over the country understand that emojis are in more than a millennial’s social media feed. Emojis have found their way into courts through a variety of suits.

Emojis have come a long way since their 1999 introduction to Japanese mobile phones. They are relied on for marketing campaigns, customer satisfaction surveys and inter-office communications. The commonality of emojis in every-day conversation has led to many controversies and misunderstandings.

In October, Edward and Kandis co-authored an article in The Legal Intelligencer on emojis titled “Why Lawyers Should Care About Emojis.” In the article, Edward and Kandis discuss the ethical duty of technology competence, as provided for by Model Rule of Professional Conduct 1.1, which has been adopted by 31 states, including Pennsylvania; the challenges emojis pose in discovery; and using emojis as evidence at trial.

Emojis are not going away anytime soon, and their importance should not be underestimated. As is often the case with so many areas of the legal field, lawyers must be adaptable to changing times. Technology has brought some of the most profound changes to the practice of law and continues to do so. Lawyers should be diligent in remaining apprised of maintaining their technological competence – meaning lawyers should have a basic understanding of emojis and social media and their place in the law.

If you are interested in learning more about this topic or would like to have the CLE presented at your company, please contact Kang Haggerty directly.

Kang Haggerty is a boutique law firm offering counseling and representation for a wide range of legal issues in the following areas of law: business litigation, construction law, bankruptcy and loan workout matters, real estate law, class actions, estate planning and administration, as well as insurance bad faith litigation.

The Ethical Duty of Technology Competence

A lawyer’s fundamental duty has always been to provide competent representation. For years, competence included only a lawyer’s knowledge of substantive areas of the law, experience and skill to handle the representation adequately. As the times changed, and technology became more prominent in life and law, the meaning of competence expanded.

In 2012, Model Rule of Professional Conduct 1.1 was modified so that “competence” in representation includes being able to advise clients on the “benefits and risks of technology” in one’s area of the law. Since then, 31 states, including Pennsylvania, have amended their rules of professional conduct to include “technology competence” as a fundamental duty of lawyers.

The specific language used in each state’s rule governing technological competence varies. In 2014, Pennsylvania released a Formal Ethics Opinion (2014-300) titled “Ethical Obligations for Attorneys Using Social Media” in which it mandated that lawyers be aware of how social media websites operate and the issues they raise. The opinion notes that as the use of social media expands, so does its place in legal disputes, as well as the fact that most clients seeking legal advice have at least one account on a social networking site.

Without technology, emojis would not exist. Given the strength of Pennsylvania’s position on the importance of lawyers being competent in technology, particularly social media, every lawyer should be familiar with emojis and the potential issues they can cause in litigation. For litigators, an understanding of emojis and social media platforms can be critical. Not understanding these platforms can be a disservice to your clients, which can lead to discovery violations, malpractice and ethical violations. To that end, we are starting to see decisional law in this regard. See, e.g., James v. National Finance, 2014 WL 6845560, at *12 (Del. Ch. Dec. 5, 2014) (“Professed technological incompetence is not an excuse for discovery misconduct.”).

The importance of a lawyer’s understanding and depth of knowledge of emojis and social media varies based on their practice area. A lawyer who handles employment lawsuits, for example, is more likely to encounter issues involving emojis than one who handles regulatory litigation. Emojis are communications, however, and they can become an issue in any type of case. Therefore, all lawyers should have a working knowledge of emojis. As the rule of competence has proven to be elastic, it is important that lawyers be too.

Emojis Present Challenges in Discovery

Emojis can present difficulties in discovery. One such challenge is that it is very difficult to search for emojis. Given the volume of electronically stored information (ESI), parties in litigation will often agree to certain search terms to be used by the party making the production of documents as it is often not feasible to review all potentially responsive discovery to determine what should be produced. Using keywords replaces the obligation to review each document with only having to review and produce documents containing agreed on search terms. Emojis, however, at least for now, are very difficult to search for under most configurations. To produce more relevant results, many search technologies deconstruct and interpret documents and, attempt to limit junk content (e.g., spaces and punctuation). Emojis are usually part of this “junk content.” Where on survey estimates that 40 percent of data across messaging apps like iChat is emojis, this problem should not be underestimated. While this predicament is beyond that of most attorneys, e-discovery platforms are likely hard at work on a solution, as emojis present yet another business opportunity for them.

Another challenge emojis present in discovery is that their appearance is often device-specific. If the sender and recipient of an emoji are on the same platform and using the same version of the operating system (i.e., both sender and recipient are on iOS 12), then they should see the same versions of the platform’s emoji implementation. Where, however, the sender and the recipient of an emoji are not using the same platform, the sent emoji and the received emoji can be different, sometimes significantly. With this in mind, if an emoji becomes an important piece of evidence in a case, it is important for the lawyer who seeks to use it at trial to establish the operating systems of both the sender and the recipient. If the operating systems were different, the lawyer seeking to use the emoji must determine what the sender intended to send and if the sent emoji is materially different from the received one. In a world where emoji users now can choose between different races and genders (including gender neutral), the devil is in the detail, and this detail is one that should be considered.

Emojis as Evidence

With so many emojis being transmitted nowadays, it is increasingly likely they will be used as evidence in cases. The analysis of using emojis as evidence as trial is largely the same as it would be for any communication. One of the most common—if not the most common—objections to a “statement” is that it is inadmissible hearsay. In this sense, emojis are unique as they often constitute a statement, but not always. For example, depending on the context, a smiley face emoji with hearts as eyes could mean “I love you,” which is a statement. Alternatively, this same emoji could be used as a modifier of another statement it follows, indicating that the statement should be read “in a loving way.” In the latter instance, the emoji itself would not be a statement and therefore, could not be hearsay (although the statement itself could be).

Another consideration unique to emoji evidence, versus other communicative evidence, is how they should be presented at trial and published to the jury. Once a text message or other communication is determined to be admissible, it can be read aloud to a jury. In this situation, there is often no need to use a demonstrative exhibit of a long string of text. Where emojis are present, however, merely reading the text aloud is often insufficient. If a text message is read aloud to a jury and the emoji is omitted, the jurors will miss out on important context and be denied the opportunity to grasp the writer’s intent fully. Likewise, it should not be left to your opponent to explain to a jury the meaning of any emoji appearing in a communication. Each emoji is often subject to many interpretations, and even then, they are often used to mean something other than their true meaning. As such, communications with emojis being used as evidence, must be shown to a jury. If the recipient and sender of an emoji were using different platforms, it is important to show the jury what the message with the emoji looked like to each, so the jury can fairly and accurately weigh the evidence. A further discussion of this issue can be found in the matter of United States v. Ulbricht, No. 14-cr-68 (KBF), U.S. District Court for the Southern District of New York.

Conclusion

Emojis are here to stay. As is the case with many aspects of the legal profession, lawyers must be willing to adapt to changing times. Technology has brought some of the biggest changes to the practice of law and continues to do so. Lawyers should be diligent in remaining apprised of maintaining their competence in technology, which includes emojis and social media. Before you know, you and your adversary could be arguing over the true meaning of an emoji in your next case—perhaps with the assistance of expert emoji experts.

Edward T. Kang is the managing member of Kang Haggerty LLC. He devotes the majority of his practice to business litigation and other litigation involving business entities. He gave a CLE presentation titled “Emojis Speaking Louder than Words” at the 2018 Annual Meeting of National Association of Minority and Women Owned Law Firms (NAMWOLF) in Chicago, Illinois.

Kandis L. Kovalsky, an associate at the firm, focuses her practice on representing both corporate and individual clients in a broad range of complex commercial litigation matters in Pennsylvania and New Jersey state, federal and bankruptcy courts.

Reprinted with permission from the October 18 edition of “The Legal Intelligencer” © 2018 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.

In a recent annual Federal Bench Bar Conference in Philadelphia, a U.S. District Court judge warned of the perils of allowing clients to perform their own data and document collection.

In a recent annual Federal Bench Bar Conference in Philadelphia, a U.S. District Court judge warned of the perils of allowing clients to perform their own data and document collection. As the judge wisely pointed out, this can be problematic as the lawyers owe a duty to the court to represent truthfully and accurately. If, for example, a client performed the data collection without proper supervision, the lawyer could not accurately represent that all responsive documents have been collected and produced. The 2015 amendments to Federal Rule of Civil Procedure 37 provide dire consequences for failing to preserve electronically stored information (ESI), including monetary sanctions, dismissal of a claim, judgment in favor of the prejudiced party, suppression of evidence and adverse inference instructions. The recent changes to Federal Rule of Evidence 902, which addresses self-authenticating evidence, and is routinely relied on by civil trial lawyers, raises additional concerns with clients performing their own data collection.

Self-authenticating evidence under Rule 902 is evidence that requires no extrinsic evidence to prove that it is what it purports to be. Common examples of self-authenticating evidence include newspapers, periodicals, signed and sealed public documents, and official publications. While the amendments to Rule 902 were created to address the unnecessary expense and inconvenience associated with having live testimony from multiple witnesses solely to authenticate electronic evidence, they also provide guidance on ESI collection and resolving authentication issues relating to ESI before trial.

Amendment to Rule 902

On Dec, 1, 2017, Rule 902 was amended in two important ways that drastically changed the process for both collecting and admitting ESI into evidence. Both amendments now allow for the authentication of electronic evidence by a written affidavit of authentication of a “qualified person.” Subsection (13) covers records “generated by an electronic process or system that produces an accurate result,” such as a system registry (e.g., Windows Registry) report showing that a device was connected to a computer, or showing how smartphone software obtains GPS coordinates. Subsection (14) applies to records “copied from an electronic device, storage medium or file” (e.g., email, hard drive of a computer, cellphone photos, text messages).

Subsections (13) and (14) of Rule 902 are different. The former pertains to computer-generated data, whereas the latter pertains to computer stored data (e.g., user-created data). Subsection (13) is limited to data automatically generated and recorded by electronic processes and systems. The records contain data created by the electronic system. Since there is no human declarant, the only issue is the reliability of the system generating and recording the data. For example, many smartphones contain software that automatically records a log of its user’s text messages. The log containing the date and time of each text, and the number of the other phone involved could be authenticated under Rule 902(13), but the content of the text messages could not. Under Rule 902(13), a party could establish that a smartphone’s software captures the date, time and GPS coordinates of pictures taken, allowing the court to determine that whoever took the picture did so at a certain time and place. Rule 902(13) will be useful in trade secret cases, as it will allow for the authentication of a systems report showing when a party logged into a network and what actions were taken. If a proponent seeks to introduce user-created ESI, such as text messages or emails, that are stored on an electronic device, such as a phone or a computer, they must proceed under Subsection (14).

The advisory committee noted that evidence now covered by 902(13) and (14) was rarely the subject of a legitimate dispute over authenticity. Rather, parties usually wait until their opponent has incurred the significant expense and time of producing an authentication expert before stipulating to authenticity, or deciding not to oppose it. Since Rules 902(13) and (14) both require that the proponent comply with the notice provisions of Rule 902(11), issues relating to the authentication of ESI can now be addressed well before trial removing the unpleasant element of surprise relating to authentication of ESI. To further limit the surprise at trial, the proponent of the ESI can file a motion in limine well before trial for the court to rule on the sufficiency of the authentication and admissibility of electronic records.

The amendments to Rule 902 do away with the requirement that a foundation witness testify to support authentication of electronic documents. Now, if the procedure in Rule 902(13) and (14) is properly followed, the proponent of the ESI need provide only a certification of authentication of the person performing the collection for there to be a foundation for future questioning about the ESI. Before the amendments to Rule 902 were in effect, the data collector would have to first testify about the merits of the collection process before substantive questions relating to the data could be asked.

While the term “qualified person” is not defined under Rule 902, the notes on the amendment clarify that the qualified person must, at a minimum, check the “hash value” (or use another reliable means of identification and verification) of the proffered item and certify that the hash value was identical to the original. As the notes explain, a hash value “is a number that is often represented as a sequence of characters and is produced by an algorithm based upon the digital contents of a drive, medium, or file” and that “if the hash values for the original and copy are different, then the copy is not identical to the original” and vice versa. Hash values are often referred to as “the fingerprint of a file.”

In the absence of a definition of “qualified person,” a safe approach is to look to the standard for qualifying an expert witness, as provided by Federal Rule of Evidence 702. Accordingly, the affidavit should provide information relating to the affiant’s identity and qualification. The affiant should describe their familiarity with the design of the type of phone or computer at issue. The affiant should also provide information about the methodology used to retrieve and copy the data. If the affiant used the hash value method of identification, the proponent attorney could ask the court to take judicial notice of the general reliability of the method under Federal Rule of Evidence 201(b)(2). To satisfy Rule 702(d), the affiant should state that the software they employed is industry standard and that they encountered no problems when they used it to compare the data and that they followed proper procedure in printing out the contents of the copy.

Rules 902(13) and (14) require a certification that complies with Rule 902(11), which has three requirements. First, the record was made at or near the time by, or from information transmitted by, someone with knowledge. Second, the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling. Third, making the record was a regular practice of that activity. The affiant must also establish the chain of custody to satisfy Federal Rules of Evidence 401 and 901. To do so, the affiant should include information such as the ESI source (make, model, serial number), identity of who delivered the source, collection dates and the means of transfer for the copy of the data.

Generally, clients, and lawyers alike, are not capable of checking and understanding a hash value or other methodology. Further, most clients will not meet the standard of a “qualified person” as required under Rule 902(13) and (14). As described above, the information required to be included in a certification under Rule 902(13) or (14) is complicated. These amendments to Rule 902 raise the question of whether a client should be self-collecting the data in their case, or whether a third party, such as a forensic collection specialist or service, should be performing the collection.

In general, a practitioner should not allow her client to self-collect data, for it is difficult for a client to qualify as a “qualified person” under Rule 902(13) or (14) or to perform a forensically sound data collection. If inadvertent spoliation occurs, your client will face potential sanctions under Federal Rule of Civil Procedure 37. Collecting data without spoliation involves technical expertise. Certain kinds of data, such as file access related and log file data, easily spoliate, even if collected in good faith. Forensic collection agencies have tools that can help generate logs and other materials that can serve as invaluable support for the affidavit required under Rule 902(13) and (14).

If, despite all the above, you still determine your client is competent to self-collect their own data, at a minimum, they must document the steps they take during the collection process, and information relating to the chain of custody, including the ESI source (make, model, serial number), custodian, collection dates and the means of transfer for the copy of the data. This information will be critical come time for authentication of this data. For larger firms with an in-house IT department, it is critical to use these departments in cases of self-collection.

Conclusion

The December 2017 amendments brought Rule 902 current with the Digital Age. Where there is no legitimate dispute about the authenticity of ESI, even if a party will not stipulate to authenticity in advance, the amendments to Rule 902 should promote greater certainty, save litigants and attorneys time and money, and preserve valuable judicial resources by leading to fewer witnesses, less trial preparation relating to ESI. The amendments to Rule 902 take nothing away, are there to help, and will only hurt those who fail to use a valid process of data collection by a qualified individual. Rule 902 is a welcome and much-needed straight path in a windy world of electronic discovery, which is now a multimillion-dollar industry that dominates litigation and the lives of lawyers alike.

Edward T. Kang is the managing member of Kang Haggerty LLC. He devotes the majority of his practice to business litigation and other litigation involving business entities.

Kandis Kovalsky, an associate at the firm, focuses her practice on representing both corporate and individual clients in a broad range of complex commercial litigation matters in Pennsylvania and New Jersey state, federal and bankruptcy courts.

Reprinted with permission from the June 21 edition of “The Legal Intelligencer” © 2018 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.

Facebook has been making headlines lately over claims it shared personal data on more than 87 million people to the political data firm, Cambridge Analytica for use in the 2016 presidential election. In the midst of the Cambridge Analytica chaos, the Pennsylvania Superior Court provided long-overdue guidance on the authentication of posts from Facebook and other social media platforms.