Lang, Richert & Patch congratulates the following Super Lawyers: personal injury and wrongful death specialist Robert L. Patch II; construction and complex litigation attorney Val W. Saldana; bankruptcy and insolvency advocate Rene Lastreto II; employment and labor law attorney Charles T. Taylor; and construction law specialist Mark L. Creede.

Among Lang, Richert & Patch’s up-and-coming attorneys are Rising Stars: Matthew W. Quall, construction litigation attorney; Craig B. Fry, corporate and business transactions and bankruptcy specialist; Scott J. Ivy, business litigation, attorney; and Ana de Alba, business litigation attorney.

These 9 Super Lawyer and Rising Star honorees come from diverse practice areas and represent nearly half of all attorneys practicing with Lang, Richert, & Patch. Lang, Richert & Patch is proud to have among the largest contingent of Super Lawyer and Rising Star honorees in the Central Valley.

Lang, Richert & Patch continues to maintain its reputation as “The Firm of Distinction”, with five attorneys earning the title of Super Lawyer and two others being named as Rising Stars. The Super Lawyers hailing from Lang, Richert & Patch include; personal injury and wrongful death specialist Robert L. Patch II, construction and complex litigation attorney Val W. Saldana, bankruptcy and insolvency advocate Rene Lastreto II, employment and labor law attorney Charles T. Taylor, and construction law specialist Mark L. Creede. LR&P further recognizes Rising Stars, Matthew W. Quall, construction litigation attorney, and Craig B. Fry, corporate and business transactions and bankruptcy specialist.

The selection of Super Lawyers and Rising Stars from Lang, Richert & Patch represents the broad and diverse set of skills and backgrounds the firm brings to litigation matters. The seven Super Lawyer and Rising Star honorees represent two thirds of the lawyers currently practicing with Lang, Richert, & Patch and is by far the largest contingent in the Central Valley. Attorney Val Saldana commented that the title is, “as much an honor for the entire firm, as it is for the individuals involved”. Saldana further noted, “we have always taken a collaborative team approach to our complex litigation matters.” The multiple Super Lawyer and Rising Star distinctions demonstrate Lang, Richert & Patch’s ability to provide aggressive and effective results to a wide range of client demands.

Lang, Richert & Patch has strived for more than 40 years to provide its clients with premier legal services through establishing an open and collaborative environment while maintaining a result driven mentality. The experience and expertise of the firm has earned the respect of both the local and legal communities. The firm also received the prestigious, Martindale-Hubbell AV-rating, which is the highest peer rating for ethics and ability. Looking ahead, Val Saldana notes that, “we have worked hard to achieve preeminent status in the business litigation and bankruptcy departments. And we intend to keep on building.”

A call to action heard loud and clear in the legal community was answered last month during the Fresno County Women Lawyers’ “Women Helping Women” luncheon. The luncheon featured speakers Jenny Bates, Director of The Hacienda Drug/Alcohol Rehabilitation Center for Women and Deborah Torres, Director of Samaritan Women. The speakers shared stories of how their organizations help women who have been incarcerated get back on their feet. Those attending the luncheon were asked to donate career clothing, toiletries, postage stamps, and bus tokens to help these wonderful organizations improve the lives of the women they serve. Generating donations for both organizations, FCWL members took up the call to action and made the luncheon an amazing success.

Despite the generosity of FCWL members, the need for donations and volunteers is still great. If you are interested in donating items, the following wish lists may help steer you in the right direction:

Samaritan Women Wish List
• Volunteers
• Pen-pals
• Donations
• Personal hygiene products
• Toilet paper
• Paper towels
• Garbage bags
• Bus tokens
• Forever postage stamps
• Clothing
• Shoes
• Accessories
• Linens
• Cleaning products

*If you would like more information and/or to make a donation, please contact Deborah Torres at (559) 227-2190 or at dtorres@fresnorescuemission.org.

The Hacienda Drug/Alcohol Rehabilitation Center for Women Wish List
• Volunteers
• Adopt a room
• Build a park
• Create toys for on-site play
• Refurbish building
• Donations
• Golf carts
• Game room supplies
• Arts and crafts supplies
• Washer/Dryers
• Carpet and installation
• Camping supplies
• Gift cards for manicures, pedicures, haircuts, etc.
• Wrought iron fence for property
• Repaving parking lots
• Trash compactor
• Replanting
• Picnic tables with umbrellas

*If you would like more information and/or to make a donation, please contact Jenny Bates at (559) 977-5515 or at jbates@mhsinc.org.

E-discovery rules have caused in-house counsel to take a harder line with some of the e-mails that workers think are private

“Don’t put this in writing, but … ” Those are the opening words of an e-mail that got the writer’s company in legal hot water. And there are plenty more where that came from.

“This is off the record,” started the e-mail that in fact put it all on the record.

How about this one? “We may be in breach of contract, and here’s why.”

These examples of troublesome e-mails general counsel say they’ve run across don’t include the countless off color so-called jokes forwarded to contact lists of colleagues, interested or not, or links to Web sites that are definitely not part of a corporate job description.

The “send” button — together with its evil cousins, “forward” and “reply all” — are causing a world of trouble for corporations as they connect to evidence in legal proceedings and create a new mess for in-house lawyers to clean up.

“We all need to educate ourselves and our clients about the large bucket of problems that come up with e-mails,” said R. Scott Meece, global general counsel, senior vide president and secretary of CIBA Vision Corp. “People send e-mails as though they were having conversations with someone in a bar.”

The problem with e-mails has been a recurring topic recently in GC roundtable discussions and elsewhere — including protracted legal battles.

“We’ve broken open a lot of investigations just because of what we find in the e-mails,” said W. Scott Sorrels, a partner with Powell Goldstein specializing in corporate securities and regulatory matters and a former enforcement attorney with the U.S. Securities and Exchange Commission. He and Jennifer D. Odom, a Powell Goldstein partner specializing in securities, corporate and regulatory litigation as well as electronic discovery, have given a series of presentations on the perils of e-mail.

“We had one example that started out, ‘don’t put this in writing but … ‘” Sorrels said. The writer “then proceeded to shoot himself in the foot, the knee and the elbow.”

It has now become routine even in civil investigations for computers to be subpoenaed so lawyers can look at e-mails and hard drives. And one thing always leads to another. “We have forensic software that shows multiple levels of deletions. It shows thought processes. We can learn far more than from just a document alone,” said Sorrels. “E-mails have taken over the world.”

“You wouldn’t believe the things that people say — as though they’re just talking to a buddy,” said CIBA Vision’s Meece. Yet these e-mails are saved, backed up, forwarded or otherwise preserved — even when people think they’ve deleted them. “They very well can live forever.”

Even worse, sometimes e-mails tell a part of the story, but not all of it. So their continuing existence amounts to a sound bite taken out of context, multiplied and amplified forever.

“My biggest fear with e-mails is not that it can be used against you in some way, but that the assumption is it’s telling the whole story, and it’s not,” said Meece. “It may be the truth but not the whole truth, and there may be some silly stuff in there that’s not ‘nothing but the truth.’”

Ask just about any GC or labor and employment lawyer, and you’ll hear similar concerns. “We deal with this issue all the time — more and more,” said Matthew W. Clarke, a partner in Smith, Gambrell & Russell’s employer services. “The main problem that occurs over and over is that people have such a casual attitude and approach when it comes to writing and sending e-mails.”

The resulting problem is not just a matter of taste but a matter of law — as in harassment or hostile work environment. “People will put something in an e-mail that they would never say in front of other people or in a drafted memo,” said Clarke. “They’ll just put catty comments or frankly inappropriate language. They don’t think the e-mail will ever come back to bite them or ever see the light of day. Now, with e-discovery rules, plaintiffs are dredging up e-mails that go back years. They call people names. They make inappropriate comments.”

These include, Clarke said, “can you believe that [expletive] is complaining about this?” Or, “I can’t believe she’s pregnant at such an inconvenient time at work.” Or, “we need to get rid of the dead wood.”

E-mails, text messages, BlackBerry communications all are potential time bombs if not worded thoughtfully and with discipline. “It just creates the potential for a permanent record for all this type of stuff,” Clarke said. “People don’t realize that to some degree, if it’s in an e-mail, it’s analogous to etching it in stone.”

Clarke’s best advice to in-house counsel is to work with other departments to regularly repeat training in e-mail etiquette. Remind employees that their communications on office computers — and even company cell phones, BlackBerrys and home computers used for work — belong to the company and are not in any way private. If it’s off the record, don’t write it. Pick up the phone or better yet, walk over. Don’t hit the send button in the heat of anger.

And above all, said Clarke, never say anything in an e-mail that you wouldn’t want to see displayed on a giant screen in a court room in front of a judge and jury even years from now. Because that is exactly where it might end up.

June 1, 2007 – Though the U.S. Supreme Court cut back this week on Americans’ rights to sue for equal pay in the real-world workplace, our rights to sue for wrongs visited upon our imaginary selves in imaginary game worlds made some modestly countervailing gains.

“This has been one of the most important weeks in US virtual-world law in memory, perhaps ever,” says S. Gregory Boyd, an intellectual property attorney and games law expert at Kenyon & Kenyon.

First, in a 46-page ruling handed down Wednesday, U.S. District Judge Eduardo Robreno of Philadelphia allowed a player’s suit against Linden Lab, the maker of the popular online fantasy game Second Life, to go forward. In April 2006 Linden Lab seized Marc Bragg’s virtual property and expelled him from the game for allegedly violating its terms of use by using an “exploit” — a software trick, essentially — to buy virtual land in that world on the cheap. In October 2006 Bragg sued to recover the value of his virtual property, which he estimates at $6,000, as well as about $2,000 in U.S. currency that he had in a game-related account controlled by Linden Lab. “While the property and the world where it is found are ‘virtual,’” Judge Robreno wrote, “the dispute is real.” Though the game’s Terms of Use (i.e., the contract to which the user clicks his agreement before starting the game) required that such disputes be handled by arbitration in San Francisco, the judge found those arbitration provisions to be “unconscionable.” This was so, Judge Robreno found, even though Linden Lab offered to move the arbitration to Philadelphia and pay all of Bragg’s upfront fees. It was so, moreover, even though Bragg, who is himself a lawyer, might have seemed unusually well situated to understand the meaning of the Terms of Use.

Then, on the same day that the Bragg ruling came down, a player of Blizzard Entertainment’s wildly popular subscription-based online game, World of Warcraft, filed a nationwide federal class-action suit in Miami, Florida, against a company known as IGE (formerly International Gaming Entertainment). (Blizzard is a unit of Vivendi (VIVEF.PK).) IGE is in the business of facilitating so-called “real-money trade”; that is, it runs online exchanges where players of online games, including World of Warcraft, can buy and sell virtual currency and trinkets that have value in a particular game in exchange for real money, even though such transactions are typically forbidden by most games’ Terms of Use agreements. Plaintiff Antonio Hernandez, represented by G. Richard Newsome of Orlando, Florida, maintains that real money trade causes “pollution and interruption of the fantasy Subscribers paid for.” He alleges that IGE’s low-paid contract laborers in Southeast Asia “strip out scarce and limited virtual world resources,” devalue the in-game currency, and effectively put “honest” players at a disadvantage vis-a-vis unscrupulous ones. Hernandez says he spent more than $50 on the World of Warcraft software, more than $50 on its “Burning Crusade” expansion upgrade, and $15 per month in subscription fees. (World of Warcraft, which launched in North America in November 2004, is probably the most successful so-called “massively multiplayer online role-playing game” (MMORPG) ever marketed, with, currently, an estimated 8.5 million subscribers worldwide, according to Blizzard.)

Defendants IGE and Linden Labs each declined comment on the case against it, stating that it does not comment on pending litigation.

I have written before on the subject of real money trade in virtual worlds, both in a November 2005 Fortune feature story (”From Megs to Riches”), available here, and in a November 27, 2006 blog posting, available here, about the “Anshe Chung,” who is believed to be the first person to accumulate $1 million worth of real value entirely through machinations inside an online world (Second Life).

While some worlds, like Second Life, permit and facilitate real money trade, most, like World of Warcraft, forbid it. Still others, like Sony Online Entertainment’s EverQuest, have attempted to offer subscribers the choice of operating in versions of the world where it is permitted and other versions where it isn’t. (SOE is ultimately owned by Sony (SNE).)

Legally and factually, the more interesting of the two cases is the Hernandez class action. IGE has previously defended its business model by saying that it does not violate any game’s Terms of Use, because its employees do not play the games themselves, and, therefore, never enter into those so-called “click-through agreements.” IGE merely brokers trades between people that do play the game.

In the suit, however, Hernandez alleges that IGE, which is based in Hong Kong but has offices in Miami, Boca Raton, and Beverly Hills, is much more than a mere broker. In World of Warcraft, players can earn in-game currency, called gold, and other virtual items that bestow in-game powers or status by performing certain feats. The complaint alleges that IGE contracts with “hundreds” of “gold farmers” who are “often citizens of developing third world countries who spend up to 14 hours per day, or more, logged onto World of Warcraft collecting resources and World of Warcraft gold.” (Best story I’ve seen on the phenomenon of gold farming in China is a December 2005 New York Times article, available here.) Hernandez’s complaint claims that the IGE’s gold farmers use accounts that “are paid for, or controlled, directly or indirectly,” by IGE. He then accuses IGE of acting in a conspiracy with those gold farmers in ways that violate the consumer protection laws of Florida and the other 49 states, D.C., and Puerto Rico, which generally forbid “unlawful, unfair, unconscionable, deceptive and fraudulent business practices.”

Boyd, of Kenyon & Kenyon, says its hard to comment on the Hernandez case at such an early stage, but does say this: “Traditionally, the players have been harmed by this type of activity and not really had a voice against the people ruining the economies and diminishing the game play experience. Hopefully, this type of legal action will give them that voice.”

February 7, 2007: US Senators yesterday introduced a bill that better protects the privacy of citizens’ personal information in the face of data security breaches across the country.

Senators Patrick Leahy (D-Vt.) and Senator Bernie Sanders (I-Vt.) co-sponsored the Personal Data Privacy and Security Act, which was first introduced in 2005 with co-sponsorship from Arlen Specter (R-Pa.) following serious data breaches at ChoicePoint and LexisNexis.

Senator Specter, who is the Ranking Member on the panel, is co-sponsoring the bill again this Congress.

Since then breaches at several other firms and within state and federal governments have exposed millions of Americans to identity theft by leaking or losing their personal data, which included names, addresses, and sometimes Social Security numbers.

Just last week in Vermont there was a serious data breach of a computer system used by the Vermont Agency of Human Services.

The breach jeopardized the financial data of at least 69,000 Vermonters whose personal financial information was stored on the server. In other recent cases, Designer Shoes Warehouse and TJ Maxx Stores both had the personal information of their customers stolen from their computers.

According to the Privacy Rights Clearing House, since February 2005, more than 100 million records containing personal information have been subject to some sort of security breach.

“Today, Americans live in a world where their most sensitive personal information can be accessed and sold to the highest bidder, with just a few keystrokes on a computer, yet our privacy laws haven’t kept pace,” said Leahy, who has championed privacy protections in his more than three decades in the United States Senate. “This comprehensive bill not only deals with the need to provide Americans with notice when they have been victims of a data breach, but also deals with the underlying problem of lax security and lack of accountability to help prevent data breaches from occurring in the first place. Reforms like these are long overdue.”

He said the bill also can serve as a model for states in enacting laws covering state-kept data.

“This legislation is a critically important tool to protect the privacy of Americans’ personal information. Companies who collect personal information have a serious responsibility to safeguard it and this bill would make sure they do that,” said Sanders. “In addition, we need to treat the theft of personal information as the serious crime that it is. This bill sends the message loud and clear that those who engage in identity theft are going to face increased criminal penalties. I look forward to working with Senator Leahy – who has been at the forefront of the effort to protect Americans’ privacy rights — to advance this important legislation.”

Key features of the bipartisan legislation include increasing criminal penalties for identity theft involving electronic personal data and making it a crime to intentionally or willfully conceal a security breach involving personal data, giving individuals access to, and the opportunity to correct, any personal information held by commercial data brokers, requiring entities that maintain personal data to establish internal policies that protect the personal data of Americans, requiring entities that maintain personal data to give notice to individuals and law enforcement when they experience a breach involving sensitive personal data and requiring the government to establish rules protecting privacy and security when it uses information from commercial data brokers, to conduct audits of government contracts with data brokers and impose penalties on government contractors that fail to meet data privacy and security requirements.

Advocacy group Center for Democratic Technology welcomed the legislation, particularly the provision in the measure that strengthens oversight of the government’s use of commercial databases to collect information about citizens.

Introduction

Effective December 1, 2006, amendments to the Federal Rules of Civil Procedure place new obligations on attorneys using electronically stored information (“ESI”) in federal courts. The amendments force parties to address, early in the case, issues of how to best preserve, collect, and produce ESI.

The amendments were created in response to recognition that ESI raises different issues from conventional paper discovery. Characterized by an exponentially greater volume than hard copy documents, ESI presents a substantial risk of inadvertent production of privileged material. Preservation of ESI also raises an issue, since computer information, unlike paper, is dynamic; computers continuously overwrite, delete, and change stored information. In addition, ESI may become incomprehensible when separated from the system that created it. In response to these problems, the proposed amendments require counsel to address ESI issues from the outset of litigation.

The Ninth Circuit Federal District Courts and State Courts in California will soon revise their rules to address ESI. Accordingly, counsel should be aware of the new duty to properly communicate with clients and ensure discovery of all sources of relevant ESI.

Summary of Amended FRCP

Amended Rule 16: Pretrial Conferences; Scheduling; Management

• Invites the court to address ESI in the Rule 16 scheduling order.
• Gives the court discretion to enter an order adopting any agreements reached by the parties regarding privileges for material inadvertently produced in discovery.

Amended Rule 26(a)(1)(E): Duty of Disclosure

• Requires a party to disclose, without awaiting a discovery request, all “electronically stored information. . . which the disclosing party may use to support its claims or defenses.”
• At the early stage of initial disclosures, each party must disclose, by category and location, all potential sources of ESI that it may want to use in litigation.

Amended Rule 26(b)(2): Discovery Scope and Limits

• Provides that a party need not produce electronically stored information that is not “reasonably accessible” because of undue burden or cost.
• For example: deleted information, information kept on backup systems for disaster recovery purposes, and legacy data from systems no longer in use.

Amended Rule 26(b)(5): Claims of Privilege or Protection of Trial Preparation Materials

• Allows a party to assert privilege after inadvertent production.
• If a party has produced information in discovery that it claims is privileged or protected as trial-preparation material, it may notify the receiving party of the claim, stating the basis.
• After receiving notification, the receiving party must return, sequester, or destroy the information, and may not use or disclose it to third parties until the claim is resolved.

Amended Rule 26(f): Meeting of Parties

• Requires the parties to discuss, at their initial meeting, three issues relating to discovery of ESI:

1. The form of producing electronically stored information (paper or electronically)
2. Preservation of discoverable ESI; and
3. Approaches to asserting claims of privilege or work-product protection after inadvertent production in discovery.

• In order to be adequately prepared to discuss these matters at the conference, counsel must investigate and discuss with the client the best way for the client’s ESI to be preserved, collected, processed, and produced.
• Amended Form 35 (“Report of Parties’ Planning Meeting”) requires that counsels’ Rule 26(f) reports cover ESI issues and any agreements counsel made about post-production privilege assertion.

Amended Rule 33: Interrogatories to Parties

• Allows a party to answer an interrogatory involving review of business records by providing access to the information, so long as the interrogating party can find the answer as readily as the responding party.

Amended Rule 34: Production of Documents and Things

• Authorizes requesting party to specify form of production. For example, the discoverable emails may be produced in their original Outlook format, or Word files can be produced in searchable PDF format.
• If no format is requested, the responding party may provide the information in any format that is reasonably usable.

Amended Rule 37(f): Failure to Make or Cooperate in Discovery; Sanctions

• “Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide ESI lost as a result of the routine, good-faith operation of an electronic information system.”
• This amendment provides a safe harbor for information lost due to the “routine operation of an electronic information system,” i.e., the ways in which such systems are generally designed to meet the party’s technical and business needs.
• Recognizes that electronic information systems are designed to recycle, delete, and overwrite information in routine operation.
• Does not provide a shield for a party that intentionally destroys specific information because of its relationship to litigation.

Amended Rule 45: Subpoena

• Recognizes that electronic discovery may be obtained from third parties.
• Conforms the provisions for subpoenas to changes in other discovery rules related to discovery of ESI.

Conclusion

The volume and complexity of electronic evidence requires proactive planning to allow clients and counsel to manage potentially discoverable facts and data before litigation. In order to prevent discovery battles, sanctions, or, even worse, avoidable adverse verdicts as a result of those sanctions, litigants who anticipate use of ESI should keep several things in mind. First, counsel has a duty to become familiar with the client’s document retention policies. Although not required by the FRCP, other jurisdictions (federal district courts in Delaware, Kansas, and Wyoming) require interaction between counsel and an IT liaison who has knowledge of the client’s information management system. Second, do not blindly accept a client’s assertion that no ESI exists. Hidden data may remain somewhere in the system, despite the client’s belief that the information was deleted. Third, before the meet and confer conference, counsel should meet with their clients and prepare a robust data management system, which creates a method for preserving, collecting, processing, and producing the client’s ESI. Finally, both parties should work cooperatively to prepare for all likely ESI issues before discovery spats get out of control.