What Are Interrogatories, Requests to Produce, and Admissions?

What Are Interrogatories, Requests to Produce, and Admissions?

In civil lawsuits, the parties obtain and exchange information in a process called “discovery”.  This is very different from criminal cases where the police investigate and the prosecutor brings a case based on that evidence and has to disclose it to the defense.  In civil cases, the proponent of an allegation has the obligation to devleop the evidence to prove that allegation and obtains it through the process of discovery.

Discovery in civil disputes takes on two basic forms; what lawyers call “paper discovery”, and the “other stuff”.  Paper discovery actually isn’t paper anymore, but it is the series of requests provided for by our Florida procedural rules that includes interrogatories, requests to produce, and requests for admissions.  The “other stuff” is discovery aside from these requests, such as depositions and inspections of property or equipment.

Interrogatories

Interrogatories are only exchanged between the actual parties in a lawsuit, i.e. plaintiff and defendant.  They essentially are just written questions to the other.  They are limited in number, but Judges usually allow more if there is good reason.  A party’s lawyer will normally draft the answers with the party and they are sworn to under oath.

Requests to Produce

Requests to produce ask for documents or categories of documents, including electronic documents and data.  In addition to being directed at the other party in a suit, in a slightly different form, they can also be used to non-parties so they don’t have to appear at a deposition just to deliver documents.  Unlike interrogatories, these are not limited, but your lawyer will first assess whether there are objections to the requests and what should be produced.  Because these are regularly used in lawsuits, this is why parties can not now just delete data or throw away computers or devices when they are served with a lawsuit or litigation hold notice.

Requests for Admissions

Requests for admissions, like interrogatories, only go between the parties.  They ask a party to admit or deny some specific fact so it doesn’t have to be proven later.  Again, these are to be answered with your attorney as they have far-reaching implications in a case.  Admitting a fact admits it for all purposes, but wrongfully denying a fact carries consequences as well.  Therefore, the best person to assess these requests with you is obviously your attorney.

Timing of Discovery

Sometimes these discovery requests will come with the lawsuit.  In such scenario, you want to be sure to provide those to your attorney and let him or her know that you received those with the suit.  For certain requests, admissions for example, failure to timely respond can actually admit the requests so you don’t want to leave your attorney in the dark and think those requests don’t matter.

There is no right or wrong time to employ these discovery requests either.  Sometimes they are done at the beginning of the suit, sometimes toward the end, sometimes they are used several times in different phases of discovery and sometimes they are even coupled with other discovery mechanisms like depositions.

The Takeaway

The takeaway is that parties in a civil lawsuit use discovery to gather evidence to prove their case and the Florida Rules of Civil Procedure dictate what discovery mechanisms are available.  Therefore, someone who intimately knows those Rules should be in your corner drafting and responding to discovery requests.  Going it along is not a good idea and you know what they say about those who represent themselves. . .

About the Author

A Board Certified expert in business litigation by the Florida Bar, David Steinfeld, Esq. is the owner of the Law Office of David Steinfeld in Palm Beach Gardens – http://www.thepalmbeachbusinesslawyer.com.  As a member of the Association of Certified E-Discovery Specialists, Mr. Steinfeld keeps on top of e-discovery developments and also teaches Judges, lawyers, and paralegals how to perform e-discovery.  He is AV-Preeminent rated by Martindale-Hubbell, 10.0-Superb rated by AVVO, and was highlighted as “One to Watch” for 2014 by Attorney-at-Law Magazine.  He has been named one of Florida’s Legal Elite for 2012, 2013 and 2015, recognized as one of the top business lawyers in Florida by The Legal Network for 2013, 2014, and 2015, and was selected for inclusion in the list of Florida Super Lawyers for 2014 and 2015.

Mr. Steinfeld is the incoming Vice Chair of the Florida Bar Board Certification Committee for business litigation and is the current Chair of the Palm Beach County Bar’s Business Litigation CLE Committee.  He is also a member of the Board of Directors of the North County Section of the Palm Beach Bar and was appointed by the Florida Supreme Court to its Committee on Business and Contract Jury Instructions.  He is an invited Fellow in the Litigation Counsel of America and a full Professor of Law at Dankook University Law School in South, Korea.  Informative videos and articles are available for free at thepalmbeachbusinesslawyer.com.

The Law Office of David Steinfeld –

E-mail: info@davidsteinfeld.com

Tel: (561) 316-7905

What Are Your Document and Data Preservation Obligations?

Our world is becoming increasingly digital.  Businesses are keeping more and more information in electronic format, which highlights the question of what must a business operating in Florida keep and what can it delete in the context of a civil lawsuit.

The simple answer of keep everything may not be practical or efficient.  Sure, storage media is cheap, but storing everything also means someone at a law firm has to look through it, which can translate in enormous electronic discovery costs in litigation; we’ll get to that in a minute.

Not long ago, Florida adopted procedural rules in civil cases (contract suits, car accidents, divorces, etc.) that were modeled largely on existing Federal Rules.  Our Florida Rules require that parties perserve relevant data when served with a lawsuit or receive reasonable notice to keep data, whichever is earlier.  So, for example, if your business isn’t suing or being sued, you can freely clean out your hard drive, but you might want to consult with counsel first or archive data just to be sure.  You can still delete data if you are involved in a suit, just not data relevant to that dispute.  If you do, bad things can happen called sanctions for spoliation of evidence.

So then, what’s the easy solution? Have a data management plan and preservation policy and follow it.  If you do, you are in the safe harbor of the Florida Rules.  What do you put in that Plan?  That’s something a Board Certified expert in business litigation with experience with electronic discovery should craft for you.

Now, what is electronic discovery you asked? It is the process of obtaining and processing relevant data by and between parties in a civil lawsuit.  More simply, it’s getting your e-mails and stuff in a lawsuit.  It takes the old process lawyers used of gathering all the documents and exchanging them in a case and brings it into the 21st Century.  It recognizes that businesses and people have a lot of data and it makes efficient use of technology to process that data.  But, someone still has to look through a certain amount of that data and that’s what increases your costs.

In e-discovery as it is called, there are two large costs; the software and the lawyers who use it.  The software cost depends on the vendor and there are about a thousand of them.  Some charge for upload of data and for use.  So, the more data you have to upload and store, the more expensive it is and that’s why storing everything isn’t always the best answer.  The attorneys’ fees naturally depend on the billing arrangement with the law firm, but at the end of the day, someone has to look through some part of that data.  So, the less data there is, the less time it takes, and the less it costs.  Getting the picture?

So, in sum, storing all data for a business isn’t necessarily the best solution as doing so may inadvertently cause future e-discovery expenses to balloon in any lawsuit.  In Florida’s State Courts, businesses now have a legal obligation to preserve electronic data when demanded (with limits) or when sued, whichever comes first.  The intelligent reaction for any business or business owner is to have a proper data management plan and preservation policy for the business in place now to reduce e-discovery costs and exposure to liability later.  For that, look to one of the 240 Board Certified business litigation experts in Florida who can guide you through this developing area of e-discovery.

About the Author

A Board Certified expert in business litigation by the Florida Bar, David Steinfeld, Esq. is the owner of the Law Office of David Steinfeld in Palm Beach Gardens – davidsteinfeld.com.  As a member of the Association of Certified E-Discovery Specialists, Mr. Steinfeld keeps on top of e-discovery developments.  He also teaches Judges, lawyers, and paralegals how to perform e-discovery for Everything e-Discovery, LLC eveythinge-discovery.com.  He is AV-Preeminent rated by Martindale-Hubbell, 10.0-Superb rated by AVVO, and was highlighted as “One to Watch” for 2014 by Attorney-at-Law Magazine.  He has been named one of Florida’s Legal Elite for 2012, 2013 and 2015, recognized as one of the top business lawyers in Florida by The Legal Network for 2013, 2014, and 2015, and was selected for inclusion in the list of Florida Super Lawyers for 2014 and 2015.

Mr. Steinfeld is the incoming Vice Chair of the Florida Bar Board Certification Committee for business litigation and is the current Chair of the Palm Beach County Bar’s Business Litigation CLE Committee.  He is also a member of the Board of Directors of the North County Section of the Palm Beach Bar and was appointed by the Florida Supreme Court to its Committee on Business and Contract Jury Instructions.  He is an invited Fellow in the Litigation Counsel of America and a full Professor of Law at Dankook University Law School in South, Korea.  Informative videos and articles are available for free at davidsteinfeld.com.

The Law Office of David Steinfeld –

E-mail: info@davidsteinfeld.com

Tel: (561) 316-7905.

What does the logo of the Law Office of David Steinfeld mean?

Often times I am asked what the trademarked logo for the Law Office of David Steinfeld signifies.  It has two simple components; a courthouse and a large lowercase “e” with computer code for “electronic”.  The courthouse is obvious.  The “e” represents that fact that my practice is all digital and heavily involved with new and emerging issues in business litigation, like electronic discovery.

As a business lawyer that counsels and represents businesses and their owners, I recognize that it is critical to move at the speed of these businesses and to not slow them down.  Most businesses now almost exclusively use e-mail and store their records digitally.  Most law firms do not and are not set up to work with businesses so as not to significantly disrupt their operations.  I cannot image telling a business client nowadays to print thousands of e-mails so I can manually review them in a lawsuit.  The time to do that and the cost of the paper and ink is totally unnecessary when they can easily and securely upload data to an e-discovery vendor and have me log in remotely to use the sophisticated e-discovery software to cull and review those.  Business litigation is all about costs.  If the businesses’ lawyer can reduce those costs, then the process can be more efficient and affordable.

Discovery is the process by which parties to a civil lawsuit obtain and exchange information before trial.  E-Discovery is the term given to doing this process electronically using sophisticated software.  In addition to performing e-discovery regularly, I also teach lawyers and even Judges how to properly and ethically do e-discovery.  Because there are a multitude of vendors that provide e-discovery software, the question that often arises from lawyers is how to choose the right one.  For that, I have created a “consumer reports” type website to assist lawyers nationwide in choosing the right software for their cases called e-discoverysoftwarereviews.com.  Through understanding this new e-discovery process and staying current on its trends and developments, the Law Office of David Steinfeld can provide the best and most efficient representation to its clients.

But what business wants to be involved in an expensive and time-consuming lawsuit if they can avoid it?  That is where the planning and counseling aspect of my practice comes in.  For those business people who recognize the importance of avoiding problems before they occur, I advise them on and draft important business documents, such as contracts, operating and shareholder agreements, non-competes, non-disclosures, and the purchase and sale of a business or its assets. I have also created and placed a significant number of free videos and articles on my Firm’s website, http://www.thepalmbeachbusinesslawyer.com, that explain these legal issues that businesses commonly face and provide basic background information on them.

steinfeld

The Law Office of David Steinfeld’s videos and articles are designed to help the business owner to understand the parts of a lawsuits and what documents they should have for their business.  This also saves the client time and money in that I don’t always have to explain these issues in such great detail because the client already has an understanding of the legal vocabulary and concepts from watching those videos or reading the brief articles.  I have even crafted a series of articles about key areas commonly encountered in business lawsuits, such as what are interrogatories and what happens at mediation, which clients can read to save the time and cost of me explaining it.  Any way that I can save my business clients money makes the process more efficient and affordable for them.

My practice also uses a large amount of technology to service clients, so business people do not even have to leave their office to work with me.  Simple technologies like video chat and screen sharing allow my Firm to service clients virtually any time and worldwide.  For example, while teaching American law in South Korea, I was able to design and craft all the business documents for a growing South Florida personal injury law firm that allowed it to efficiently expand Statewide.

Although my Firm is based in Palm Beach Gardens, Florida, I regularly counsel and represent businesses and individual clients all over Palm Beach County from Jupiter to Boca Raton, across the State of Florida and all over the United States, Europe and Asia when they have business dealings in the State of Florida.  I am licensed to practice before all Courts in Florida from trial Courts up to the Florida Supreme Court, and all Federal Courts in Florida, including Bankruptcy Courts, the Federal Appeals Court that covers Florida, and even the United States Supreme Court.  Even though I may not regularly practice in all of these Courts, I maintain these licenses because a business client in Palm Beach County and I may sue in the local State Court and the other side may remove the case to Federal Court and change the venue to the Northern District of Florida, which may then later be appealed to the Federal Appellate Court in Atlanta or even the US Supreme Court.  I would do a disservice if I was unable to counsel and represent my client through that entire process, which to me is what a business should expect of its business lawyer.

About the Author

Board Certified expert in business litigation by the Florida Bar, David Steinfeld, Esq. is the owner of the Law Office of David Steinfeld in Palm Beach Gardens.  He is AV-Preeminent rated by Martindale-Hubbell, 10.0-Superb rated by AVVO, named one of Florida’s Legal Elite for 2012 and 2013, highlighted as “One to Watch” for 2014 by Attorney-at-Law Magazine, selected for inclusion in the list of Florida Super Lawyers for 2014, and recognized as one of the top business lawyers in Florida for 2013 and 2014 by The Legal Network.

Mr. Steinfeld sits on the Florida Bar Board Certification Committee for business litigation and is the current Chair of the Palm Beach County Bar’s Business Litigation CLE Committee.  He was also appointed by the Florida Supreme Court to its Committee on Business and Contract Jury Instructions and is a member of the Association of Certified E-Discovery Specialists.  He is an invited Fellow in the national trial lawyer honor society, the Litigation Counsel of America, and is a full Professor of Law at Dankook University Law School in South, Korea.  Informative videos and articles are available for free at davidsteinfeld.com.

The Law Office of David Steinfeld – E-mail: info@davidsteinfeld.com

Tel: (561) 316-7905.

JANUARY 1, 2015 IS COMING – IS YOUR LLC READY?

On January 1, 2015, Florida’s Revised Limited Liability Company Act will apply to ALL LLCs incorporated in and doing business in Florida and it will be the new rule.  The changes from the old LLC Act are dramatic and substantial.  Is your LLC ready?

The old LLC Act was missing a lot of default provisions that previously had to be addressed by operating agreements, if the business had one.  The new Act fills in those gaps and, taken together, operate as a fallback operating agreement for businesses that don’t have one.  But, do you even know what those new provisions are and really want what the Legislature has chosen for your business?

If your company has no operating agreement, the new Act provides that it is deemed member-managed from January 1, 2015.  That may not be the way your company is set up, but it will be on January 1 unless you make a new operating agreement.  Also, members will have certain rights that they previously did not and that you might not want to give them, such as appraisal rights.  Most notably, the new Act sets the value of membership interest as “fair value”, which is a somewhat nebulous concept and requires expensive expert evaluation and testimony to establish.  Maybe your business is better served by a set amount or a formula such as three times EBITA.  Without an operating agreement, you will be stuck with fair value from January 1, 2015.

Your updated or new operating agreement can depart from these new statutory defaults and apply a different set of rules and standards that serve the unique needs of your business.  The cost? Far less to make an operating agreement before January 1, 2015, than to litigate these issues later.  Of course, you can also wait until after January 1, 2015, and hope for the best if you are the gambling type and like to take risks with the business that you built.

The prudent and proper way to approach this situation is to sit down with a qualified expert in business litigation who understands how these issues are litigated and how to structure them to avoid litigation or at least maximize the opportunities for success in future disputes.  Your business is one of the most important elements of your life and livelihood.  If you had a water leak in your house or a problem with your car’s engine, would you just leave it and hope for the best?  Of course not.  So, the optimum time to “repair” your LLC is before the changeover on January 1, 2015.

To schedule an evaluation of your LLC and the preparation of a new operating agreement or other important documents, such as contracts, liability waivers, non-competes, and non-disclosures, to name a few, contact the Law Office of David Steinfeld at (561) 316-7905 or through http://www.thepalmbeachbusinesslawyer.com or http://davidsteinfeld.com

Discovery? What am I, Columbus?!

Quote

My lawyer in my civil lawsuit keeps talking about discovery, but I’m embarrassed to ask what that is.  In criminal cases, I know that the police investigate the crime, the prosecutor charges the defendant, and the trial decides the guilt or innocence.  But what about a civil lawsuit?

In a civil case, it’s the opposite from criminal; the parties have to gather their own evidence through a structured process called “discovery”.  A party files the lawsuit based on a sometimes limited, but good faith belief of the other side’s actions and then undergoes a structured process called discovery to gather the evidence before trial.  The structure is contained in the rules of civil procedure and impacted by the rules of evidence.  Of course, this is a gross oversimplification of the process, but you get the idea.

In civil disputes, each party has the ability in the discovery process to ask the other side for documents and information.  Documents are obtained through Requests to Produce and nowadays can also include electronic records, like e-mails and social media posts.  Other information can be gathered through written questions called Interrogatories or orally through a deposition or both.  Parties can also verify certain facts by asking the other side to admit them in Requests for Admissions.

Sometimes, however, parties outside the lawsuit hold key information.  Discovery may also be obtained from those third-parties or non-parties by way of a deposition or document request without deposition.  But, Interrogatories and Requests for Admissions may only be directed to another party in the lawsuit.  We refer to those involved in a civil suit as a “party” because they can be individuals or business entities.

Discovery takes time to complete because large blocks of time are built into our Florida Rules of Civil Procedure.  For example, after sending a request to another party, you have to wait at least 30 days for a response and sometimes longer depending on the circumstances.  Discovery requests can also sometimes require court action or uncover and lead to other information and evidence that is helpful to claims or yields and supports new claims.  Oftentimes, this is why lawsuits take so long, but that is not always a bad thing because it allows parties to gain some perspective over the dispute as time goes by.

In sum, it is best for any party to get over the embarrassment of not knowing what discovery is and inquire of their attorney as to the purpose and plan of each action in discovery, if the attorney hasn’t already initiated that discussion.

About the Author

Board Certified expert in business litigation by the Florida Bar, David Steinfeld, Esq. is the owner of the Law Office of David Steinfeld in Palm Beach Gardens – http://www.davidsteinfeld.com.  He is AV-Preeminent rated by Martindale-Hubbell, 10.0-Superb rated by AVVO,  named one of Florida’s Legal Elite for 2012 and 2013, highlighted as “One to Watch” for 2014 by Attorney-at-Law Magazine, recognized as one of the top business lawyers in Florida for 2013 and 2014 by The Legal Network, and was named to the 2014 Florida Super Lawyers List.

Additionally, Mr. Steinfeld sits on the Florida Bar Board Certification Committee for business litigation, the Florida Supreme Court Committee on Business and Contract Jury Instructions, and is the current Chair of the Palm Beach County Bar’s Business Litigation CLE Committee.  He is also involved in the Association of Certified E-Discovery Specialists and is an invited Fellow in the Litigation Counsel of America.  In 2014, Mr. Steinfeld was made a full Professor of Law at Dankook University Law School in South, Korea and regularly instructs on Florida business law and e-discovery.  Informative videos and articles are available for free at http://davidsteinfeld.com.

WHAT EXACTLY IS MEDIATION?

WHAT EXACTLY IS MEDIATION?

This question comes up often because parties in a civil lawsuit in Florida must mediate before they can go to trial, generally speaking.  Mediation is really nothing more than the parties, that is plaintiff and defendant, getting together with their lawyers and a certified mediator, to put their proverbial cards on the table and see if there is another way to resolve their differences.  Mediation is not anyone deciding who is right or who is wrong; the mediator isn’t there to judge and the whole event is confidential, with some limited exceptions.

HOW DOES IT WORK

So how does it work you ask?  Usually one side suggests mediation if it is before the case has been noticed for trial.  If it is noticed, then the Court mandates mediation within a certain time.  The lawyers agree on a mediator, location, and a time and each lawyer has the chance to send a confidential mediation summary to the mediator to give him or her a bird’s eye view of the case as that side sees it.  Unless told to do so, the mediator doesn’t share this summary with the other side.

At the mediation, the parties start together with the mediator, usually in a conference room. The mediator explains that the process is confidential, that he or she doesn’t decide the case, and listens to both sides as an objective, yet skilled observer trying to help the parties meet somewhere in the middle.  Each side then presents their view of the dispute, ordinarily through their lawyers, but the parties themselves can speak and sometimes, depending on the case, it is helpful to get a few things off one’s chest.  After that, the parties go to separate rooms with their attorneys and the mediator meets privately with them.

What the mediator does in speaking privately with each side is try to get that side to see different views of the dispute and to determine where their limits are for settlement.  Different mediators have different styles and your lawyer tries to select or suggest the person that he or she feels is most appropriate for the dispute.  Each side generally pays the mediator in equal shares at the end of the mediation, regardless of the outcome.  Mediators bill by the hour and the parties agree to the rate before the mediation.

WHEN DO YOU MEDIATE

When then do you mediate?  Simple answer – anytime you want and as many times as you want.  Some disputes lend themselves to early mediations; some require more development of the evidence before any meaningful settlement is possible.  The question of when to mediate is a decision to make with your attorney, but unless the Court lets you off the hook, whether to mediate is not normally an option.  The reason why most Judges won’t waive mediation where none has ever occurred is because they know that even mediations that don’t result in a settlement can still set the groundwork for an amicable resolution later.

WHAT IS THE PURPOSE OF MEDIATION

The purpose of mediation is not just to generate a settlement, but to give the parties a chance to explore options that the Court can’t offer and to take control of the outcome of the dispute. Courts really just award money as damages or sometimes property, depending on the case.  However, the parties might accept a swap of assets or really just want a non-compete or some other agreement that means more than money and that a Court can’t usually award on its own.

It is important to recognize that if parties don’t settle their lawsuits, judges or juries make the decisions for them.  If the parties can construct a settlement through mediation that each can live with, they take control of the outcome.

While there are many factors to consider in any mediation, such as the cost of the lawsuit and the evidence, one thing mediation is not is a trial; the mediator doesn’t make any decision.  That right always resides with each party at mediation.

ABOUT THE AUTHOR

Board Certified expert in business litigation by the Florida Bar, David Steinfeld, Esq. is the owner of the Law Office of David Steinfeld in Palm Beach Gardens.  He is AV-Preeminent rated by Martindale-Hubbell, 10.0-Superb rated by AVVO, named one of Florida’s Legal Elite for 2012 and 2013, highlighted as “One to Watch” for 2014 by Attorney-at-Law Magazine, and recognized as one of the top business lawyers in Florida for 2013 and 2014 by The Legal Network and selected for inclusion in the list of Florida SuperLawyers for 2014.

Mr. Steinfeld sits on the Florida Bar Board Certification Committee for business litigation and is the current Chair of the Palm Beach County Bar’s Business Litigation CLE Committee.  In 2014, the Florida Supreme Court appointed him to its Committee for Standard Jury Instructions in business and contract cases.  He is also involved in the Association of Certified E-Discovery Specialists and is an invited Fellow in the Litigation Counsel of America.

Mr. Steinfeld is a full Professor at Dankook University Law School in South, Korea and regularly instructs on Florida business law and e-discovery.  Informative videos and articles are available for free at http://www.davidsteinfeld.com.

Please visit http://www.davidsteinfeld.com

 

How to avoid legal problems in business

Running a business, large or small, requires a good degree of business acumen and planning.  Business owners regularly review their marketing plans, inventory, and their customers to adjust themselves to an ever-changing market.  But how do you avoid legal problems that can plague a business and drain its resources?  One easy word; planning.

Too often business owners are lulled into believing that their legal documents, such as contracts, non-competes, and even their lease, are working just fine.  The old adage, “if it’s not broke, don’t fix it”, doesn’t apply well to legal documents because only the trained legal mind of a qualified business lawyer truly knows whether the documents are working as they were intended.  Thus, scheduling regular reviews of a business’ legal documents with your attorney is a good idea to reduce problems later.

One important legal concept for business owners to discuss with counsel is their liability exposure.  Insurance can cover many areas of liability, but some businesses may find it economically advantageous to self-insure in some areas.  Discussing, for example, the potential liabilities at a business’ own premises by conducting a walk-thru without your business attorney can develop ideas that limit liability exposure.  Is your business attorney looking at your premises and suggesting, for example, installing close-circuit cameras at certain locations?  The relatively minor cost of a few hundred dollars may save a business thousands later in a baseless slip-and-fall.  Also, in negotiating and planning transactions, it is a prudent move to involve your business attorney to be sure that certain issues are addressed by the documents for the transaction.  Yes, there is a cost for the lawyer, but it will be far less than the future lawsuit.

A client of the Law Office of David Steinfeld performs a very special and proprietary weight loss system for large businesses.  Most of that client’s customers naturally want to know just how they achieve such a high degree of success.  If that client disclosed the information, there is a possibility that the larger and very sophisticated customers would simply try to replicate the process to the detriment of the client.

In examining the situation, the Law Office of David Steinfeld suggested and developed a multi-step program for the client to allow them to safely present the information without the risk of suffering a catastrophic theft of their trade secrets.  That program has insured the long-term success of the client’s business and equally allowed the client to identify potential customers who only wanted to steal their method.  This type of low cost planning with counsel can be invaluable to a business and ensure its success for many years to come.  When was the last time your business sat down with counsel to review documents, plans, and discuss liability exposure?

For more information please visit http://davidsteinfeld.com

Is Your Cloud Data Really Secure?

I read an interesting article not long ago by Mr. Michael Geist, a well-respected Canadian law professor, that got me thinking whether data stored in the cloud by Florida businesses is really secure.  The article and Professor Geist’s impressive bio can be found at michaelgeist.ca/content/view/6755/125.

At an increasing pace, businesses around the globe are transitioning their data to cloud storage for a variety of reasons.  On September 1, 2012, the Florida legislature enacted a set of comprehensive electronic discovery rules for civil cases that now allow parties in lawsuits to obtain electronically stored information (ESI) from other parties and even non-parties.  Businesses can and should be taking steps now to ensure they can avail themselves of the safe harbor provisions of those Rules with data management and litigation hold plans prepared by and with their business counsel.  The Law Office of David Steinfeld has several videos and articles on these plans on its website at http://www.davidsteinfeld.com for your reference.

Which brings us to the question of whether data is secure in the cloud and why this is important for every business to consider when selecting a cloud storage provider.  In addition to protecting proprietary data and trade secrets of the business and ensuring access at all times, you should consider where the data is stored and what the policies of the storage provider are with regard to allowing third-party access.

Professor Geist’s article addressed the US Government’s efforts to obtain the cloud data of a company under investigation in a criminal case, but in civil discovery the standard that Judges apply is whether a business has possession, custody or control over certain data.  While a business may not have physical possession or actual custody over ESI as it once did when paper documents were in a file cabinet at the business’s office, the choice to store ESI on servers hosted by another will most likely lead to a determination by a Court that the business at least has control over the data requiring production of the data if all other requisite elements are met.

Therefore, it is important for any business storing data in the cloud or migrating data to the cloud to consider the policies and procedures of the cloud provider and to understand when that provider may refuse access or allow third-party access to the business’s data.

What If I Get A Subpoena For Electronic Documents?

You may have heard or read that Florida updated its State Court Rules of Civil Procedure on September, 1, 2012, to specifically allow for the discovery of electronically stored information (ESI) in civil lawsuits.  This change requires businesses to now manage their electronic data.  You may have thought that this does not apply to your business because you are not involved in a lawsuit.  You may have also thought that you can put off data management planning until you are involved in a lawsuit.  But, you do not have to be sued or file a lawsuit to be subject to these Rules; your electronic records can be sought by a plaintiff or a defendant in a lawsuit that your business is not even named in.

This article is not meant to provide legal advice or to form an attorney-client relationship; it is meant only to provide general information about this important and deep impacting topic.  Florida’s new electronic discovery (e-discovery) rules contain a safe harbor provision that protects businesses in the case if deletion or destruction of ESI, but only if it occurred through the routine operation of the data management system.  What does this translate to for your business ?  You need a data management plan in place in advance in order to take advantage of the safe harbor provisions later.

There are two ways that a plaintiff or a defendant in a lawsuit can seek and obtain your electronic records, including e-mail, if you are not a party to the litigation.  They can serve a subpoena for the documents or they can serve a subpoena for deposition that includes a document request, called a subpoena duces tecum.  Professionalism generally dictates that the party requesting the records would notify your business in advance and co-ordinate the request or deposition, but circumstances may require another approach, therefore, the first notice that your business may have that your electronic records are being sought in a lawsuit in which your business is not a party is a proverbial knock on the door from a process server.

So what do you do?  The first and immediate step should be to contact your attorney or a Board Certified business litigation attorney if you don’t have one (you can find a list of all Board Certified business litigation attorneys on the Florida Bar’s website at http://www.flabar.org/  ).  Assuming you have a data management plan in place and are following that plan, the costs associated with responding and producing the data are greatly reduced.  In some cases, you may not even bear all of these costs, but if you do not have any data management plan at all, you expose your business to substantially increased expenses and even the risk of sanctions and penalties if your business can not locate or has deleted the data.

There are good arguments to be made that you lacked notice or had no duty to maintain the requested data, but now you have to pay your attorney to advance those to the Court and you have no guaranty that you will win those.  Therefore, why place the business that you have worked so hard to build in such a predicament when it is much less expensive and much easier to put these plans in place now.

With the increasing pace at which businesses operating in Florida are storing data electronically and using e-mail to communicate, it only makes sense to establish a method to manage this data and enact policies for employees about social media usage and storing company data on phones, tablets, laptops, and other such devices that connect to your company’s servers.  The Law Office of David Steinfeld can assist your business in preparing data management and litigatio hold plans to optimize your businesses’ opportunity to avail itself of the safe harbor provisions of the new Florida e-discovery Rules, to protct your business, and reduce your costs later if you are involved directly in a lawsuit or if your electronic records are sought by a party in a lawsuit.  To discuss data management planning for your business either in person, by phone, or video chat, you can reach the Law Office of David Steinfeld at info@davidsteinfeld.com or (561) 316-7905.

For more information please visit http://davidsteinfeld.com

Does Your Florida Business Have Social Media And Device Policies?

As businesses increasingly rely on technology, they must understand the consequences of that reliance.  In September 2012, Florida updated the procedural rules that apply in civil cases to expressly allow parties in lawsuits to obtain electronically stored information (ESI) through the Courts.  The “safe harbor” provisions that were engineered to protect businesses on the receiving end of such requests only operate where the business can show it acted in good faith in accordance with a plan to manage and preserve its data.  Thus, step one for every business operating in Florida that is subject to these new Rules is to have a documented plan.

This article is not meant to provide legal advice or to form an attorney-client relationship; it is meant only to provide general information about the important topic of maintaining coontrol over your electronic data, which is impacting and will continue to impact all businesses operating in Florida.  To address the particular needs of your business and have a data management plan crafted for it, you may contact the Law Office of David Steinfeld using the contact information at the end of this article.

Initially, businesses stored data on individual computers and backing those up was a critical task to perform.  Then came in-house servers, that allowed employees to share data and rendered the desktop a point of access to the information.  Next, the cloud removed the server from the office and increased the company’s flexibilty.  Today, we have a proliferation of portable and mobile devices that can access that cloud data anytime and have rendered the old norms obsolite in a very short period of time.  However, like all progress and advancement, this too does not come without a price, which is the increasing difficulty of managing and controlling a company’s data.

In the legal world, electronic discovery, a.k.a. “e-discovery”, is fast gaining momentum as parties and their attorneys realize the potential treasure trove of information that can be obtained from a company’s ESI.  Discovery in litigation is the process by which a party obtains information from the other side or outside parties.  E-discovery is the discovery of ESI.

All businesses that operate in Florida and that are subject to its laws, including e-discovery rules, should have in place or be working toward developing data management and litigation hold plans.  If they are not, they are exposing themselves to the possibility of sanctions if they are involved in litigation, which can be quite severe and detremental to the enterprise.  However, one often overlooked aspect of managing data is the broad access granted employees and vendors by a company to its data through cell phones, tablets, and laptops.

While these devices are definitely convenient, they allow the person accessing data to store and alter it, resulting in a loss of control over the data by a company that has no defined policy or plan.  As an example, imagine a that an employee downloads a contract from Company A’s data archives to the employee’s device, changes the terms, and sends it to Business B, who agrees to the terms.  Then, the employee abruptly leaves Company A and a dispute develops over the contract.

Company A is now in a difficult position because it lacks possession of the very document it is accused of breaching.  While Company A can obtain a copy from Business B in discovery, it may not be able to absolutely verify that what it receives is the agreement.  Additionally, if Business B purposely or inadvertently altered the document and then agreed to the modified version, Company A may not even know to bring an otherwise valid defense because of its own lack of knowledge of the original document.  Fortunately, problems faced by businesses associated with the ease with which data can now be transmitted by and through devices accessing a company’s data can be avoided with proper policies and plans.

My motivation for this article came from a very insightful recent Florida Bar Journal article authored by Robert C. Kain, a prominent Board Certified Intellectual Property Law attorney in Ft. Lauderdale (www.complexip.com).  In it, Mr. Kain discusses the analysis of the Federal Computer Fraud and Abuse Act by various Federal Courts around the Country, highlights the split between them, and identifies some of the shortcomings of the Florida Computer Crimes Act as it applies to employees that take and abuse a company’s data.  This situation should signal to businesses in Florida that unless and until the U.S. Supreme Court resolves the split, they are on their own to protect themselves with policies, procedures, and plans as to how those to whom they grant access to their data can use that data.

To reinforce this, imagine further that Company A had a policy requiring all employees to upload modified documents back to the company.  If the employee followed that policy, Company A would be in a much better situation in the dispute brought by Business B.  Even if the employee failed to follow the policy, Company A would be able to pursue the former employee, depending on its policy, and obtain the data from the employee.  At any rate, it would certainly put Company A in a better position than telling the Judge that it didn’t have the document because it failed to put any policy or procedure in place.

The time to establish plans, policies, and procedures for remote access to your business’s data is now.  As data useage and storage grows and the ability to access and alter that data through a variety of convenient and portable devices increases, business must protect themselves and position themselves to take advantage of the safe harbor provisions of Florida’s new e-discovery Rules by establishing data managment and litigation hold plans that account for and incorporate remote data access through portable and mobile devices.

About the Author

David Steinfeld, Esq. is one of about 230 of the almost 100,000 attorneys in Florida that is a Board Certified Expert in Business Litigation Law by the Florida Bar.  He is the Owner of the Law Office of David Steinfeld, P.L. in Palm Beach Gardens and is rated AV-Preeminent by Martindale-Hubbell, which is the highest peer review rating an attorney can receive.  He is a Member of the Florida Bar’s Business Litigation Board Certification Committee that oversees and regulates certification in that area, the Florida Bar’s Subcommittees on improving Florida’s LLC and Corporate laws, and serves on the Palm Beach County Bar’s Professionalism Committee and is Chair of its Business Litigation Education Committee.  He is also a Member of the Association of Certified E-Discovery Specialists, a Fellow in the invitation-only national trial lawyer honor society, the Litigation Counsel of America, and was named one of Florida Trend Magazine’s Legal Elite for 2012 and 2013.  He regularly speaks on business law related issues and his informative videos and articles on topics such as business litigation, e-discovery, real estate, and social media can be accessed atwww.davidsteinfeld.com.  To schedule an appointment, you can reach the Law Office of David Steinfeld at info@davidsteinfeld.com or (561) 316-7905.