Hannah Joseph and Kyle Vieira Give Presentation on Electronic Discovery

On January 6, 2020, Hannah T. Joseph and Kyle Vieira gave a presentation at the Boston Bar Association on electronic discovery. The program was titled E-Discovery Basics: Who, What, Where, When, WHY!

According to the description of the program, “E-Discovery has become a critical component to any litigation. This program will provide tips and tricks for how to develop an e-discovery strategy, how to engage and manage the vendor relationship, and how to satisfy your discovery obligations.”

Hannah and Kyle recently co-authored an article titled “A Conversation that Every Employer Should Have with Its eDiscovery Vendor.” In their article, Kyle and Hannah offer practical advice to employers about working with eDiscovery vendors.

According to their article, “eDiscovery, which encompasses the collection, preservation, analysis, review, and production of electronically-stored information (ESI), is a necessary and often critical component of litigation. Indeed, eDiscovery is not only expected in most cases, but can also determine litigation strategy and outcomes. Given the sheer volume of potentially-relevant ESI in any given matter, as well as the evolving nature of legal disputes (a ‘small’ matter can quickly balloon into full-blown litigation involving multiple custodians) the appropriate management of eDiscovery is often key to litigating effectively and controlling costs. In most instances, this will mean partnering with the right eDiscovery vendor.”

Hannah Joseph is an attorney with the firm’s litigation group, focusing her practice on the growing areas of trade secrets law, restrictive covenants, employee mobility, and unfair competition. She has counseled both corporate and individual clients on the use and enforceability of noncompete, nonsolicitation, and nondisclosure agreements, and successfully litigated cases on both sides regarding the enforcement of such agreements. Hannah also represents corporate and individual clients in disputes involving breach of contract, breach of fiduciary duty, and intra-corporate matters.

Kyle Vieira is also an attorney with the firm’s litigation group, and he has worked on various noncompete and trade secrets matters since he started working for Beck Reed Riden LLP in 2019. Kyle graduated from Boston University School of Law in 2019. He was a member of Boston University’s Intellectual Property Society and participated in Moot Court.

Beck Reed Riden LLPis Boston’s innovative litigation boutique. Our lawyers have years of experience at large law firms, working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment. We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

A Conversation that Every Employer Should Have with Its eDiscovery Vendor

eDiscovery, which encompasses the collection, preservation, analysis, review, and production of electronically-stored information (ESI), is a necessary and often critical component of litigation.

Indeed, eDiscovery is not only expected in most cases, but can also determine litigation strategy and outcomes. Given the sheer volume of potentially-relevant ESI in any given matter, as well as the evolving nature of legal disputes (a “small” matter can quickly balloon into full-blown litigation involving multiple custodians) the appropriate management of eDiscovery is often key to litigating effectively and controlling costs. In most instances, this will mean partnering with the right eDiscovery vendor.

Oftentimes, eDiscovery vendors will offer volume-discount pricing and other perks in order to earn a spot on an employer’s coveted preferred vendor list. For those employers who are involved with the vetting of their eDiscovery vendors, below are some considerations to keep in mind.

  1. Your vendor’s capabilities – starting the conversation

 When it comes to capabilities, not all vendors are built the same. It is important, at the outset of your matter, to anticipate the needs of your case and select a vendor who can best meet them. Consider whether your vendor can provide the following:

  • Collection and preservation of data;
  • Forensics analysis;
  • A review platform (and related support and technologies);
  • A managed review of documents; and
  • Expert testimony

Some cases (such as, for example, a large-scale trade secrets litigation) may require the full gamut of services. In those instances, it may be best to retain a vendor that can perform each of the above-listed functions effectively, so as to streamline processes. (In this regard, you can trust – but should verify – vendors’ representations about their capabilities. More on this, below.) In other cases, it may suffice to select a vendor who specializes in only some of these processes. In either instance, it is important to pick the right vendor early in the process; switching vendors mid-case can create myriad issues (including chain-of-custody problems) and complicate expert testimony.

Once you have started the conversation, how do you determine whether your vendor can perform the functions it says it can, and at the speed and with the efficiency and accuracy that you need? Having an informed conversation about each of the above-listed functions will be key.

  1. Forensics analysis – a vendor can be a roadblock or an E-ZPass

When it comes to forensics, partnering with a vendor that is responsive and can produce detailed, accurate reports within an expedited timeframe is essential. Moreover, the vendor should be able to produce the reports that you will need and in a format that is sufficiently user-friendly. (A report that provides in-depth analysis can be much more helpful than a series of Excel spreadsheets containing raw data, although – in most cases – you will want both.) Finally, if you anticipate that your matter might become litigation, you will want to ensure that the person performing the forensics analysis has testified successfully before and can meet the Daubert standard.

With these in mind, here are some questions that you may consider asking your vendor:

  • How long does it take you to image a computer? An iPhone?
  • What is your typical turnaround for providing forensics analysis?
  • How much notice do you need to expedite a forensic review?
  • How big is your forensic team?
  • How many dedicated computers do you have within your forensics department?
  • Do you provide 24-hour and weekend support? If so, is there an upcharge?
  • Will there be a case manager assigned to my matter to ensure continuity?
  • What kinds of forensics reports can you produce? (Standard reports include connectivity, cloud activity, file access, internet activity, and among others.)
  • What do your reports look like? How user-friendly are they?
  • Do you have people who can provide expert testimony?

Don’t be afraid to ask for (scrubbed) examples of forensics reports and expert CVs. You can even request to interview the person who will be testifying about the forensics analysis to get a sense of how he or she might perform during examination. By thoroughly vetting your forensics vendor, in addition to getting the information you need, you will begin to get a sense of how responsive the vendor is and how comfortable you are with them.

  1. Document review – managing costs and litigating effectively

Document review and production can drive up the costs of a litigation significantly. Vendors who are savvy in facilitating large-scale reviews should be able to offer a suite of services designed to help make your document review effective, relatively cost-efficient, and accurate (such as, e.g., predictive coding and AI). Moreover, your vendor should be able to offer early case assessment and help you to select the tools that will help you litigate your case most effectively.

For cases that involve large-scale document reviews, companies should also consider partnering with a vendor that can provide a managed review (i.e., document review that is performed by a team of dedicated contracted reviewers and is supervised by an in-house manager to ensure accuracy and consistency). Partnering with one vendor that can provide smart review tools and a managed review will enable you to streamline and coordinate efforts, likely making review and production a faster and more cost-effective process.

Finally, your vendor should have policies and methodologies in place that are designed to ensure that your production is internally consistent and defensible in court. (And your vendor should be prepared to testify as to its policies and methodologies if needed.)

Accordingly, here are some questions that you might ask your vendor.

  • What review platform(s) do you use?
  • What assistive technology do you offer?
  • Do you offer early case assessment?
  • Can you offer managed review? (If so, is the managed review contracted or in-house? What is the selection process for your managers and reviewers?)
  • Will there be a case manager assigned to my matter to ensure continuity?
  • Do you offer 24-hour and weekend support?
  • If needed, are there individuals at your company who can provide testimony regarding your policies and methodologies?

With respect to review platforms and assistive technology, it’s important to note that some are simply better than others. (A clunky platform or ineffective AI can result in dozens or hundreds of additional wasted billable hours.) And, when it comes to large-scale document reviews, a vendor’s approach to case management is of utmost importance, so it will be important to have a case manager staffed to your matter who you can trust.

  1. Choosing the right partner – seeing is believing

Having an initial conversation with a vendor may tell you about its capabilities, approaches, and experience. Some of the most important qualities, however – responsiveness, speed, accuracy, competence, continuity, and your vendor’s ability to take a proactive role in your matter – can only be determined through experience. Consider trying out a few vendors, and asking others who have worked with them (e.g., outside counsel) about their experience and recommendations.

Hannah T. Joseph and Kyle Vieira, the co-authors of this article, are attorneys with the firm’s litigation group, where they focus their practices on trade secrets law, restrictive covenants, employee mobility, and unfair competition.

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our hand-picked team of lawyers have years of experience at large law firms, working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and employment, and are recognized as a leading authority in trade secret, noncompete, and unfair competition law. We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

 

Russell Beck Quoted in Massachusetts Lawyers Weekly

Russell BeckThe January 12, 2015, issue of Massachusetts Lawyers Weekly features Russell Beck in an article titled “Trade-secret plaintiff can’t audit all of rival’s computers.” Massachusetts Lawyers Weekly

The article covers a decision by the Massachusetts Superior Court that a company was not required to give an opposing party forensic access to all of its computers following allegations that its employee misappropriated trade secrets. The case is titled InVivo Therapeutic Corporation v. PixarBio Corporation.

In the article, Russell Beck is quoted as follows:

Boston attorney Russell Beck, another trade-secret expert, said the decision serves as a reminder that “the sins of the father cannot be visited on the children.”

In other words, Beck said, the mere fact that a departing employee has indisputably stolen trade secrets does not automatically mean that the new employer is equally, or even partially, culpable. Accordingly, a court is going to analyze the employer’s blameworthiness before ordering it to submit to a wholesale forensic investigation by the plaintiff’s expert.

“All too often, we forget that having a smoking gun as to one defendant does not necessarily justify tarnishing the other defendants with the same brush,” the Beck, Reed Riden partner said.

The article is by Massachusetts Lawyers Weekly’s reporter, Eric T. Berkman.

Beck Reed Riden LLPis among the leading2015_BLF_Silver_Standard authorities in trade secret, noncompete, and unfair competition law, and our experience handling these matters is backed by our extensive employment law and business litigation experience. Our hand-picked team combines attorneys with complementary expertise and practical experience. The Wall Street Journal featured Beck Reed Riden LLP’s noncompete agreement experience.

Russell Beck’s work in this area is well recognized; it includes:

  • Over sixteen years of working on trade secret, noncompete, and unfair competition matters
  • Authoring the book Negotiating, Drafting, and Enforcing Noncompetition Agreements and Related Restrictive Covenants (4th ed., MCLE, Inc. 2010), used by other lawyers to help them with their noncompete cases
  • Drafting and advising on the current bill pending before the Massachusetts Legislature to define, codify, and improve noncompetition law
  • Teaching Trade Secrets and Restrictive Covenants at Boston University School of Law
  • Founding and administrating the award-winning blog, Fair Competition Law
  • Establishing and administrating the Noncompete Lawyers and Trade Secret Protection groups on LinkedIn, with over 750 members around the world
  • Founded and chaired the Trade Secret / Noncompete Practice for an AmLaw 100 firm

In addition, Russell was honored for his work in this area of law in the 2014 Chambers USA Guide, which explained that “Russell Beck of Beck Reed Riden LLP specializes in noncompete litigation and is a trade secrets expert. He comes highly recommended by his peers for his nationwide practice in this niche. ‘He’s fantastic,’ sources say.”

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience at large law firms, working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and labor and employment. We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

 

Judging iPhone Encryption: It’s Law Versus Technology in the Courtroom

 

With the release of the iPhone 6, Apple built new security features into the iOS8 operating system, measures which law enforcement officials have complained will hinder criminal investigations.

PhoneOnce a user sets a passcode for a phone using the new operating system, all of the phone’s data – including texts, e-mails, call records, and photos – is encrypted. This means that the phone’s contents are saved in coded form, and anyone accessing them would see only gibberish unless they had the encryption key that unlocks the code.

In a change from previous operating systems, the iOS8 creates a unique encryption key for each device that is partially based on the user’s self-selected passcode. Thus, Apple can no longer break the code and access the user’s data, even if ordered to turn over such information by a court. The director of the F.B.I., James B. Comey, has objected to Apple marketing a product that puts phone data outside the reach of law enforcement, citing concerns about terrorism and kidnapping cases.

The new technology also has implications for lawsuits outside the law enforcement context. A party in a civil lawsuit is typically subject to the discovery process, in which they must turn over to the opposing side all documents and materials that are relevant to the case. This disclosure increasingly includes material such as text messages, call history, and photos or e-mails stored on phones. A court can impose sanctions on a party who deletes or fails to turn over relevant information.

Screen Shot 2014-10-30 at 11.46.35 AMwon’t the same high level of encryption now available on iPhones — so impenetrable that not even the F.B.I. can gain access — also protect iPhone data during civil proceedings? Yes and no.

The new iPhone encryption ensures that a litigant who produces a password-protected iPhone to the opposing party in a lawsuit is still able to keep the contents unreadable by refusing to disclose the password. However, the absolute security of encryption may be illusory, because courts routinely order parties to disclose passcodes (in addition to electronic devices, like phones and computers) in order to produce information about cases.

LockDepending on the case, a court could order a litigant to turn over their passcode to their own attorney, the opposing attorney, or a neutral third-party for the contents of the phone to be inspected.

In analogous cases involving data stored on Facebook, courts have often ordered parties to turn over their passwords to uncover relevant posts. For example, a Virginia court in James v. Edwards, 85 Va. Cir. 139 (2012), ordered the plaintiff to turn over his Facebook password to his attorney in order to allow the defendant’s counsel to access to the relevant information. In the context of an employment dispute, a defendant in a Massachusetts case was ordered to disclose his password for encrypted files stored on his former employer’s server. Enargy Power Co. v. Xiaolong Wang, 2013 WL 6234625 (D. Mass. 2013).

And what if a litigant refuses to disclose the password to his or her encrypted iPhone despite a court order? Courts have broad authority to enforce their orders, and sanctions can include monetary penalties and even jail. In the case of Keller v. Keller, 2014 WL 4056926 (Conn. Super. Ct. 2014), a litigant was found in contempt for failing to obey an order to provide working passwords to his iPhone that was being forensically examined as part of the proceedings.

So, despite the enhanced encryption available to users of Apple’s mobile operating system, courts retain their power to compel disclosure as needed, and a litigant who elects to ignore a court order does so at his or her own peril.

Beck Reed Riden LLPis Boston’s innovative litigation boutique. Our lawyers have years of experience at large law firms, working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and labor and employment. We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.

Stephen Riden in Massachusetts Lawyers Weekly on Ediscovery

The October 8, 2012, issue of Massachusetts Lawyers Weekly features Stephen Riden in an article about a survey of in-house counsel on ediscovery issues. The article is by Massachusetts Lawyers Weekly’s Managing Editor, David E. Frank.

The article focuses on a survey conducted by BTI Consulting Group, in which 350 general counsel and other “legal decision makers” were asked to evaluate their outside attorneys’ management of ediscovery. The survey reveals widespread dissatisfaction with law firms’ handling of the phase of litigation involving the production of electronically stored information.

In the article, Steve Riden acknowledges the frustration felt by in-house counsel and describes the source of aggravation with the ediscovery process:

‘So much of the frustration in-house lawyers are experiencing is inherent in the process,’ said Stephen D. Riden of Beck, Reed, Riden in Boston. ‘Even the best positioned law firm is still going to find itself on the receiving end of complaints about the hassles associated with e-discovery. I don’t see that changing any time soon.’

Riden said he is not surprised by the results, given the time and money that goes into producing electronic data and the lack of experience many practitioners have dealing with e-discovery.

‘There is always going to be tension between what the client wants, which is minimal cost and hassle, and what the courts require, which can often be expensive and onerous,’ he said. ‘That tension isn’t going to go away any time soon. But this survey should be a wake-up call for law firms in Massachusetts and across the country that there is an area of client services that’s badly in need of improvement.’

Steve Riden frequently writes and speaks about commercial litigation issues, including social media and electronic discovery.

About Us

Beck Reed Riden LLP is Boston’s innovative litigation boutique. Our lawyers have years of experience at large law firms, working with clients ranging from Fortune 500 companies to start-ups and individuals. We focus on business litigation and labor and employment. We are experienced litigators and counselors, helping our clients as business partners to resolve issues and develop strategies that best meet our clients’ legal and business needs – before, during, and after litigation. We’re ready to roll up our sleeves and help you. Read more about us, the types of matters we handle, and what we can do for you here.