Zapproved has published The 3 Archetypes of Corporate E-Discovery to shed light on the widening gap between corporate legal teams that have conquered their e-discovery challenges and those that are still struggling to do so — or simply haven’t prioritized it.

The report summarizes the common attitudes held by e-discovery executives — and how those beliefs are influencing behaviors, processes and priorities.

Amid this environment are the inescapable pressures nearly every legal professional faces:

• Responsibly lower costs while managing risk.
• Provide better visibility and accuracy into litigation timelines and costs.
• Expand portfolio to manage compliance and regulatory response.
• Keep up with the rapidly evolving digital data and ephemeral communications landscape.

By identifying Achievers, Strugglers and Idlers as the three predominant archetypes amongst corporate e-discovery professionals, the report shows how each attitude impacts success. Achievers, which represent 30% of the e-discovery market, believe automation is good for business and report high confidence in defensibility. That leaves 70% of e-discovery professionals struggling or disengaged.

Download the report.

The Healthcare Compliance Institute is scheduled for Oct. 29-Nov. 1 in Washington, DC.

The event will give participants the opportunity to go beyond legal analysis, learn how to implement systems that ensure the law is followed, and gain practical advice from experts in a one-of-a-kind forum where lawyers and compliance officers work together, according to the Health Care Compliance Association.

Some of the topics to be covered include:

• Are We Ineffective at Assessing Compliance Program Effectiveness or Are Industry and Government Using Different Standards?
• Handling a Criminal Healthcare Fraud Case
• Tips and Tools for Mitigating CMS Enforcement Actions
• Using Data and Statistics to Defend Against Health Care Enforcement
• Your Company Has Been Served with a Civil Investigative Demand: Now What?
• Managed Care Fraud Enforcement & Compliance

Register or get more information.

Before Equifax discovered a massive computer breach that exposed sensitive information about millions of Americans, the company lobbied Congress on legislation to limit how much it could be forced to pay if sued by consumers, reports The Washington Post.

The company also pressed lawmakers to roll back the powers of its regulators, according to reporters Renae Merle and Hamza Shaban.

“Since at least 2015, the credit reporting agency has repeatedly lobbied lawmakers on issues related to ‘data security and breach notification,’ according to federal disclosure forms,” the Post reports.

Read the Post‘s article.

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President Donald Trump’s travel ban offers the Supreme Court the chance to make a major pronouncement on the president’s power over immigration. But the case also could vanish into the legal ether, and that may be what a majority of the court is hoping for, points out Associated Press reporter Mark Sherman.

“Getting rid of the case would allow the justices to avoid second-guessing the president on a matter of national security or endorsing an especially controversial part of Trump’s agenda,” Sherman writes.

The timing of the ban could help the justices avoid a showdown because the 90-day travel ban on visitors from six mostly Muslim countries will expire before the court will hear the challenge.

Read the AP article.

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“Incompetent,” “unethical” and “bizarre” were some of the words lawyers and ethics experts used to characterize a loud, public conversation Trump lawyer Ty Cobb had in a restaurant about the Russia investigation.

Bloomberg Law reported that when Cobb joined President Trump’s legal team in July, he was “intended to be traffic cop, enforcer of discipline” on the case. Then on Sunday a New York Times reporter revealed “he had overheard Cobb and Trump attorney John Dowd ‘casually and loudly’ discussing the investigation and Cobb’s dispute with White House counsel Don McGahn while eating at a popular Washington, D.C. steakhouse. ”

Bloomberg interviewed several ethics experts, one who said, “the failure to take precautions to protect client confidences violates lawyer ethics rules and can lead to discipline.”

Read the Bloomberg article.

The National Association of Corporate Directors has published an article that outlines five key steps to help companies prevent negative headline events and respond when a crisis can’t be avoided. The article can be downloaded from the NACD website.

With social media as an accelerant, a smoldering corporate crisis or failure can almost instantly flare into the firestorm of a viral headline event. In this recent interview in NACD Directorship magazine, Robert E. Bostrom outlines the five key steps companies can follow. He strongly recommends that companies take the following measures:

• Establish an enterprise-wide risk committee.
• Proactively evaluate and prioritize a broad portfolio of risks.
• Empower the GC as the representative on risk to the board.
• Use risk management as a business tool for evaluating strategies, plans, and investments.
• Strategize and plan for managing negative events.

Bostrom provides some strong insights into the role of the GC in both preventing and managing crises. He also offers his thoughts on how boards and management must align in order to prevent (or survive) headline events.

Download the article.

Veteran trial lawyer David Elrod has joined the business and entertainment law firm Shackelford, Bowen, McKinley & Norton, LLP, as a partner in the Dallas office, marking a significant expansion of the firm’s existing litigation practice, the firm announces.

Also joining Shackelford are partner Worthy Walker, of counsel Barbara Wohlrabe and associate Hayley Ellison. The attorneys all have substantial experience in complex commercial and energy disputes in Texas and around the country.

“It’s not every day that you have the opportunity to bring upper-tier litigators such as David and his team into your firm. Their addition strengthens our litigation and trial capabilities regionally and throughout the country, while also adding a robust energy litigation section.”

Read the firm’s announcement.

The executives of some Silicon Valley companies have been forced out of their corporate positions because of sexual improprieties between themselves and employees, but one company has weathered a similar ordeal with little apparent repercussion.

The New York Times discusses the case of Upload, an entertainment and news hub for the VR industry. When the former digital media manager sued the company after she was fired, allegedly because she complained about the hostile atmosphere, the company at first denied the allegations. Then, as the Times‘ story about the suit neared publication, Upload’s CEO and president issued a statement saying, “We let you down and we are sorry.”

The Silicon Valley story took a turn. As reporter David Streitfeld writes:

In contrast to the venture capitalists who were knocked off their perches this summer by harassment complaints, Upload was scarcely dented by the publicity surrounding [the] suit. [The CEO and president] were not forced to resign. Investors did not pull their money. The company’s events continued, if in terms that were a bit more muted.

Read the NYT article.

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The Trump administration is quietly moving to allow energy exploration in the Arctic National Wildlife Refuge for the first time in more than 30 years, according to documents obtained by The Washington Post, with a draft rule that would lay the groundwork for drilling.

“Congress has sole authority to determine whether oil and gas drilling can take place within the refuge’s 19.6 million acres,” reports Juliet Eilperin for The Post. “But seismic studies represent a necessary first step, and Interior Department officials are modifying a 1980s regulation to permit them.”

Environmentalists and some of Alaska’s native tribes have fought against exploration in the ANWR for years, but state politicians and many Republicans in Washington have pressed to extract the billions of barrels of oil lying beneath the refuge’s coastal plain, Eilperin writes.

Read the Post article.

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A well-crafted master services agreement for outsourced services can create a powerful alliance between you as the customer and the service provider or vendor, writes Matt Hafter for Thompson Coburn LLP. Then there’s the other kind of agreement.

Writing with what he calls “hearty dose of well-meaning sarcasm,” he highlights a few of the pitfalls that will likely or almost guarantee an unsuccessful relationship with your vendors.

As an example, his first point is, “Make sure the business unit using the services stops their involvement in the procurement process after the RFP.”

Another is, “Use the word ‘penalty’ to describe fee credits for service level failures.”

Read the article.

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The terms “personal information,” “personal data,” “personally identifiable information,” and “PII” are often left undefined in contracts and treated as if they were terms of art for which there was a single definition, points out David A. Zetoony of Bryan Cave.

“Because different statutes, regulations, and guidance documents define the terms differently, you could either say that they are not terms of art, or that they are terms of art that are highly dependent upon context,” he explains.

He offers an example of one of the most expansive and one of the most narrow definitions of near identical phrases, and illustrates the degree to which the meaning of such terms can differ depending upon context.

Read the article.

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Tom Kulik of Dallas-based Scheef & Stone writes about a trend toward companies and counsel using rote reliance on forms for non-disclosure agreements without thinking through the application of the provisions and whether the document actually reflects what is contemplated (let alone needed) for the intended transaction.

Writing for Above the Law, he discusses the top five most overlooked elements in NDAs that should always be addressed before signing on the dotted line.

Those include the importance of definitions, exclusions, “what the government seeks, it can inadvertently take away,” “use needs a purpose,” and “the term is only the beginning.”

Read the article.

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A post by Joshua M. Pellant of Faegre Baker Daniels discusses the use of  a provision for a stipulated or “liquidated” damage amount in the event of specified contract breaches in construction contracts.

“These provisions can be an effective tool to recover losses that otherwise may go uncompensated because they cannot be proven or because the damages are not recoverable under an ordinary contract,” he explains. “However, courts generally will not enforce a liquidated damage provision that is seen as a ‘penalty’ unrelated to any anticipated or actual loss. The question, then, is whether a particular contract provision will be interpreted as an enforceable liquidated damages provision or an unenforceable contractual penalty.”

He discusses general enforceability standards and how much is too much (or not enough).

Read the article.

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Chad King of King & Fisher in Dallas offers some timely advice on how companies can protect their information systems in an environment in which it is becoming increasingly difficult to stay ahead of cyber intruders.

He begins by recounting the story of how anti-virus and security company Kaspersky Lab was alleged to have been cooperating with the Russian Federal Security Service (FSB), the name of the Russian counterintelligence agency and successor of the KGB, since 2009. The U.S. federal government mandated that all software made by Kaspersky Labs be removed from government computer systems. Retailers such as Best Buy are also taking steps to remove Kaspersky Labs products from their retail offerings.

“Although it’s unlikely we will ever have a definitive answer about whether Kaspersky Labs is gathering data for the Russian FSB, this incident highlights a growing concern that foreign governments might be collaborating with software and hardware companies to spy on other governments, corporate enterprises, and consumers. How can companies protect themselves in this environment?

His article offers five points to consider to deal with the threat.

Read the article.

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The Winn-Dixie grocery chain is the latest and perhaps highest-profile business to face penalties for websites that are not compliant with the Americans with Disabilities Act (ADA), but it’s not likely to be the last, according to a post on the website of Androvett Legal Media & Marketing.

A federal judge in Florida found that the grocery chain’s website was inaccessible to visually impaired individuals and thus violated the ADA because features such as the website’s online coupons and pharmacy could not be accessed using a screen reader. The court ruled in favor of the plaintiff on all issues and awarded injunctive relief and attorneys’ fees.

The Americans with Disabilities Act prohibits discrimination on the basis of disability in public places, like stores and movie theaters. Increasingly, a battle has been brewing over whether or not websites for such “places of accommodation” must also be accessible.

“In Winn-Dixie’s case, the court agreed that because its website was closely integrated with its stores, the web content must be accessible to the hearing and visually impaired,” said employment attorney Audrey Mross of Dallas-based Munck Wilson Mandala. “If consumer-facing businesses were not aware of ADA website compliance, this case should be an eye-opener.

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Burford’s 2017 Litigation Finance Survey shows that litigation finance continues to achieve dramatic growth, finding that the use of litigation finance in the United States grew by 28% from last year, to 36%. And it has grown 414% since 2013.

Among respondents in the US, UK and Australia, a majority of users (59%) say their use of litigation finance has increased in the last two years.

A strong majority (72%) of all respondents agree that litigation finance is a growing and increasingly important area of the business of law—and, notably, 40% of US companies report having foregone claims due to the cost of litigation.

Pointing to continued growth on the horizon, among all respondents whose organizations have not yet used litigation finance, a majority of law firm respondents (57%) and nearly half of in-house respondents (49%) are likely to consider its use in the next two years.

Some early concerns about litigation finance have evaporated. For example, in the US, the number of in-house respondents with concerns about litigation finance leading to unnecessary litigation fell to 10% from 81% five years ago. Among all respondents, ethical concerns rank dead last among obstacles to use, at 9%.

Only 7% of all respondents are unfamiliar with litigation finance, and only 4% of law firm respondents.

Christopher Bogart, Burford’s CEO, commented: “Burford’s latest research affirms our own experience: More and more often, clients and law firms are turning to litigation finance as a solution to some of the intractable challenges and pressures of managing legal cost and risk, and that strong demand is driving dramatic growth.”

Burford’s 2017 Litigation Finance Survey was conducted by ALM Intelligence, the research arm of ALM Media, publisher of The American Lawyer, from May 17 to June 16, 2017. The full report is available online.

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The Dallas-based trial and appellate law firm Bailey Brauer PLLC has again earned a spot among an elite group of firms that corporate lawyers most fear facing in court.

According to a release from the firm, Bailey Brauer, founded in 2913, is among the youngest and smallest firms included on BTI Litigation Outlook 2018’s Honor Roll of the nation’s Most Feared Law Firms. This is the second time the firm has been recognized for its complex commercial litigation, class action and other litigation work. Selection is based upon interviews with general counsel and in-house litigation leaders nationwide who were asked which lawyers they would least like to face in litigation.

The release continues:

“To earn a place on the BTI list is an honor because it’s based on corporate counsel feedback,” said firm co-founder attorney Alex Brauer. “And what it tells me is that the businesses we represent appreciate how we handle their most important cases, and that is being noticed by those across the table as well.”

BTI Consulting Group, based in Massachusetts, is a national business research company that conducts independent research on how Fortune 1000 companies buy, manage and evaluate their professional service providers. A full list of its 2018 honorees is available at https://www.bticonsulting.com/litigation-outlook-fearsome-foursome.

“What BTI focuses on is client service,” said co-founder Clayton Bailey. “And from day one, serving clients has been at the very heart of what we do. To have that dedication recognized by BTI twice in the four years since we opened is validation that we are on target with providing Big Law quality representation in a much more nimble, responsive way.”

This represents the second year in a row that BTI has recognized Bailey Brauer, adding to honors the firm has collected from Benchmark Litigation. Most recently, Mr. Brauer and Mr. Bailey were named individually to the 2017 Texas Super Lawyers listing. Mr. Brauer also was named among the Best Lawyers in Dallas by D Magazine. Mr. Bailey was named among The Best Lawyers in America, The National Law Journal’s Elite Boutique Trailblazers list and to The National Trial Lawyers’ Top 100 civil plaintiff lawyers in Texas.

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Kelly Chen, a partner in the litigation section of Munck Wilson Mandala, has been selected by the National Asian Pacific American Bar Association to receive the 2017 Best Lawyers Under 40 Award (BU40 Award).

The BU40 Award recognizes talented individuals in the Asian Pacific American legal community who are under the age of 40 and have achieved prominence and distinction in their respective careers. Honorees include professionals in the practice of law, academia, business, civic and charitable affairs, the judiciary, or politics, who have demonstrated a strong commitment to Asian Pacific civic or community affairs.

Chen represents clients in intellectual property and commercial litigation and she has an impressive list of legal and business organizations she is involved with as a leader or participant. She most recently served on the board of directors for the Dallas Asian-American Bar Association and she is a recent graduate of Leadership Dallas, Dallas Regional Chamber’s leadership development program. Chen also serves as co-chair of NAPABA’s Diversity and Inclusion Committee and Programming Subcommittee co-chair for the Intellectual Property Committee.

Chen has studied in Shanghai, China, and she speaks fluent Mandarin Chinese. Prior to her legal career, Chen worked as a certified public accountant for Deloitte as well as an international waste management company overseas. She received her J.D. from Southern Methodist University School of Law and she graduated with majors in accounting and business (with honors) from the University of Texas at Austin.

Chen will be honored during the 2017 NAPABA Convention in Washington, DC, on Nov. 3, 2017. NAPABA is the national association of Asian Pacific American attorneys, judges, law professors, and law students. To learn more about NAPABA, visit www.napaba.org.

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DLA Piper has been recognized as a “powerhouse” law firm for class actions and complex commercial litigation by BTI Consulting Group in its recently published BTI Litigation Outlook 2018 report.

The firm was also named a “standout” in IP litigation, securities and finance litigation, complex employment litigation, everyday employment litigation, product liability litigation and everyday commercial litigation. DLA Piper was one of eight firms to be recognized as a “BTI Awesome Opponent,” a category that includes firms clients said they least hope to see on the other side of the table.

The annual report draws on more than 4,800 interviews with corporate counsel and other leading legal decision makers conducted over the past 18 years to recognize law firms that are leading the litigation market by providing clients with faster turnaround times and more innovative approaches. Special analysis for this year’s report was based on feedback received between February and July 2017.

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eSignLive by Vasco has published a white paper discussing the importance of making sure electronic signature providers meet the highest security standards. The paper can be downloaded from eSignLive’s website.

Security is at the core of a trusted digital experience between a company, its employees and customers, says eSignLive.

That means more than simply passing an audit. eSignLive recommends taking a broader view of e-signature security that also addresses:

• Choosing the appropriate level of authentication
• Protecting signatures and documents from tampering
• Making it easy to verify e-signed records
• Ensuring vendor-independent records
• Verifying the vendor has a consistent track record of protecting customer data
• Creating end-to-end trust through white-labeling and integration with your existing IAM framework

Download the white paper.