With the help of Doug Mitchell and Andy Brudtkuhl I will be going live with an Interactive Learning Environment to complement this blog very soon. The Rush on Business Legal Wire will focus primarily on employment law, franchise due diligence / investigation issues and business purchase or sale considerations. I also hope to attract top speakers to participate in the process. The online seminar presentations will include in-depth written materials, audio presentations, podcasts and possibly video.
Forums will also be available for you to share your insights and ask questions. Similar to the blog format, I won't be able to answer questions regarding specific situations but we can discuss topics generally.
I welcome your comments and suggestions on topics you would like to hear more about.
Organizations need to respond to an increasing number of document requests, from regulatory compliance issues to internal investigations to full-scale litigation. Much of this information is available electronically. Despite the prevalence of such document requests most organizations remain reactive rather than proactive when it comes to dealing with the issue of electronic discovery.
Are you prepared?
Today I will present at the Central Iowa SHRM monthly meeting located at Copper Creek Golf Course on electronic workplace issues. The electronic workplace is all around us. Computers, voice mail, internet, intranet, e-mail, fax machines, laptops, PDAs, videoconferencing, social media, blogs and more are common features in the American workplace. The development of the electronic workplace has not come without legal implications. The same technology that allows us to perform work more efficiently creates several twists on several areas of employment law. We will explore many of the dangers and pitfalls in the electronic workplace:
- Discovery in Litigation
- Record Retention
- Discrimination, harassment and other concerns
- Accessing Inappropriate Material
- Social Media and Blogs
- Copyright violations
III. Employee Privacy Rights
- Electronic Communications Privacy Act
- Handbooks - lower expectation of privacy
- Workers' Compensation
V. Employment Ads and Resume Posting on Internet
Program details: Tuesday, April 8, 2008 at Copper Creek Golf Course, 4825 Copper Creek Drive, Pleasant Hill, Iowa. Registration begins at 7:15 a.m. Business Meeting begins at 7:40 a.m. Program begins at 8:00 a.m.
1.0 General recertification credit has been pre-approved.
Thanks to the Central Iowa SHRM Chapter for the invitation.
Today is my last day with the Sullivan & Ward law firm. This coming Monday I am taking a hop, skip and a jump over to the law firm of Brick Gentry, P.C. in West Des Moines, Iowa. This is actually almost literally true as the Brick Gentry law firm is located across the parking lot just to the west of my current office location.
It is difficult to leave my friends at the Sullivan & Ward firm but I am excited by this new opportunity. Brick Gentry is a growing law firm with an excellent reputation in the Des Moines legal community for over 40 years. The firm now consists of approximately twenty-five lawyers practicing in a wide range of areas including business law, municipal law, health care law, employment law, litigation and real estate.
I'll join the firm as a shareholder and continue to work with my current business law clients and litigation matters. Rush on Business will also continue although you will notice some changes to the links and contact information on the blog in the next couple of days.
My new contact information is:
Rush Nigut, Brick Gentry, P.C., 6701 Westown Parkway, Suite 100, West Des Moines, IA 50266. Phone: 515-274-1450; Fax: 515-274-1488; email: firstname.lastname@example.org
Thank you again to all of you that read this blog. I appreciate your support and look forward to this next step in the journey. Stay tuned for more because I have a few plans ahead to mix it up and enhance the blog. I'll need to settled in but I am looking forward to working on some new challenges very soon.
photo on flickr by phxpma
The Electronic Discovery Blog of K & L Gates has an informative post on a recent electronic discovery decision out of the Northern District of Georgia.
Lessons from this decision:
- DIscovery requests for emails should be relevent, specific and limited by time, sender and recipient.
- Following a written document retention and destruction schedule can prevent spoilation sanctions.
- Plaintiffs should request company-wide email perservation and not rely solely on the fact litigation has commenced. Requests should also include the names of individuals from whom you want the emails.
- If the costs of retrieving emails on backup tapes are too high, judges are reluctant to order production.
Read the entire decision here.
Welcome to a RAGBRAI inspired Blawg Review. What is RAGBRAI? The Register's Annual Great Bicycle Ride Across Iowa is an annual seven-day ride across the state. Heading into its 36th year, RAGBRAI is the longest, largest and oldest touring bicycle ride in the world. It's not a race. It's an experience. And since Blawg Review is a carnival, nothing says carnival in an uniquely Iowa way like bicycles, spandex, pork chops, pie, frivolity and 10,000 of your closest friends!
The weather in Iowa is frigid this winter. As the weekend of this Blawg Review approaches Iowans brace for another heavy snow. Our friend Charlie Longbrief looks at the floor below his stationary bike and dreams of summer. A person can stand only so many YMCA spinning classes. He thinks back to his first RAGBRAI as a twenty year old when law school hadn't yet entered his mind and the biggest celebrity on the ride was Oakland Raiders great and Miller Lite spokeman Ben Davidson. Now it's nothing to see the likes of lawyer turned politician John Edwards or the bicycling legend himself, Lance Armstrong. Armstrong may have participated in the famous New York City Marathon but his heart will always belong with RAGBRAI. Listen for yourself:
This year's ride starts in the river town of Missouri Valley. While performing the traditional dip of his back tire in the Missouri River, Charlie sees Liz Overton of the Iowa Law Blog who warns him that because of the $350,000 settlement in a 2004 RAGBRAI death bicyclers better beware of the new proposed legislation from the Iowa State Association of Counties.
Unfazed Charlie gets on his bike and sets out on his adventure. But as he rides off he does ask himself whether Mad Kane is right. Is it wise to travel with friends particularly where tents are involved?
About 15 miles down the road Charlie takes a break and starts getting an earful from New Yorker Eric Turkewitz about how State Farm has been hit with a RICO lawsuit over alleged sham medical exams. That hasn't been reported elsewhere and Charlie worries whether State Farm might be doing the same thing in Iowa. Charlie is so interested he and Eric ride the rest of the way to Harlan together. Although its only the first day Turkewitz remarks that he agrees with Lance Armstrong . . . RAGBRAI is a hell of lot more fun than his beloved New York City Marathon.
As he pulls into Harlan, Charlie finds himself a little short on cash and heads off to find an ATM. There he sees John Crenshaw who starts telling him about the biggest scams banks are pulling off everyday. Charlie just shakes his head in agreement as he pays the $2.00 charge to get the money out of the ATM. After a little angel hair pasta its time to hit the sleeping bag. There is a big week ahead and unfortunately Charlie isn't twenty any longer.
Day 2: Harlan to Jefferson - 83 miles
The next morning Charlie wakes up bright and early and sets off for Jefferson. He has some clients that are buying a business nearby and that reminds him he should heed Larry Staton Jr.'s advice to know what you are getting when you buy a trademark from an existing business.
About half way to Jefferson our city boy is a little mesmerized by the miles and miles of corn. It makes him wonder whether Farmer David will be able to pay that large patent judgment he now owes Monsanto as reported by the Patent Baristas.
In Scranton, just short of Jefferson, Charlie sees a big group of people gathered in a park off the town's main drag. There he sees Dan Slater of the WSJ Law Blog who explains that all the hoopla is because the M & M boys have turned their attention to the RAGBRAI water slides because the Naked Cowboy drove them outta of Dodge. The revelers love it and the log jam causes a very slow ride into Jefferson that evening.
Day 3: Jefferson to Ames - 56 miles
It's a big day for politicians on the way to Ames, home of Iowa State University. Barack Obama and John McCain are expected to make appearances today. Hillary Clinton is here too and keeps talking about how the Florida and Michigan delegates must count. Obama shrugs it off by saying even his six year old knows it wouldn't be fair to count votes where there was no campaign. But at least Florida has made significant strides in improving its jury system according to Juries. While Diane Levin points out voters can learn a lot from the field of negotiation. Eugene Volokh shares that John Mellencamp may be able to stop McCain from playing his songs after all.
All the political talk has people addressing serious issues on the road today. Riding on a three person tandum, Leon Gettler of Sox First tells Charlie that Sarbanes-Oxley not only failed to stop the subprime meltdown, it contributed by giving investors the false confidence that they could rely on the law, and not prudence to protect their market holdings. Scott Greenfield shares that Congress has a pending bill that may immunize banks from paying billions in dollars to a small Plano, Texas company. Patently-O adds that although DataTreasury is not directly mentioned in the bill it is pretty clear that Section 14 is directed primarily at the company.
As Charlie rides into Ames he sees Kevin O'Keefe and Holden Oliver of What About Clients engaged in a heated discussion about whether corporate clients really want a lawyer that blogs. O'Keefe says yes while Oliver says no. It then gets a little personal when O'Keefe accuses Oliver of being someone else. Charlie blames Teri Rasmussen who started the whole thing when she said every client should want a lawyer who blawgs.
Day 4: Ames to Tama-Toledo - 75 miles
Charlie gets ready to head off to Iowa's version of the twin cities today. In the pancake breakfast line he meets Connie Crosby who is kind enough to introduce him to David Bilinsky. David tells Charlie all about how there is a great need for law firms to turn their senior partners into business leaders. David Maister overhears them and chimes in that one-firm firms are often quite successful.
After an uneventful morning Charlie witnesses an accident on today's route where someone goes to the hospital. It looks like the rider will be okay but David Harlow of HealthBlawg warns that hospital-acquired infections are a real problem. Iowa estate lawyer Matt Gardner says that even if the rider makes it through he should still think about the disposition of his bodily remains.
As he enters Tama (or is it Toledo), John Phillips of the Word on Employment Law almost runs smack into a little beagle that darts in front of him. The incident causes John to conclude that beagles should no longer be excluded from the Animal Employment Protection Act (AEPA). John is obviously a little excited about the near miss and starts rambling about how he handled the situation a whole lot better than Roger Clemens handled the accusations from Brian McNamee.
Day 5: Tama-Toledo to North Liberty - 82 miles
Now that we have passed the mid-way point for this year's ride, everyone is a little loosey-goosey today. Charlie's cadence starts to pick up as the wind blows with the sweet smell of pork chops. That could only mean that Mr. Pork Chop is nearby. As he pulls off the roadside to visit our pork chop hero, Charlie sees that Iowa legal blogger extraordinaire Brett Trout and his band of Iowa legal bloggers are engaging Mr. Pork Chop in a battle of wills to determine who has the loudest pork chop call. Sadly, while Trout may be Iowa's toughest attorney he is no match for Mr. Pork Chop in this arena. Hear why:
After a pork chop and a short nap Charlie rides along to catch up with Michael Moore who discusses risk management in employee terminations and explains sometimes the "How" is as important as the "Why". Pretty soon both of them come across a big party along the roadside. A crowd is gathered around Dennis Kennedy who apparently is still celebrating his blawgiversary and birthday. During the party Tulane Law Professor Alan Childress wonders aloud whether any Iowa legal counselors had ever been in trouble like the lawyer that got into trouble with his state bar by trying to talk his way out of a ticket for deer hunting.
Still a little full from his banana cream pie, Charlie and his new friend Charles H. Green ride along at an easy pace discussing that as more and more banks and consumers walk away from loans--and contracts gone bad, we are reminded that legally binding contracts are often only as strong as the morality of those signing them.
That evening after dinner there is lots of entertainment in North Liberty. At a concert Cathy Gellis proclaims, "I need a husband!" The revelation causes Jon Hyman to explain what happens when office romances go bad. But Cynthia Shapiro, who received her RAGBRAI pass from George's Employment Blawg, says you might be able to have that office romance if you know a few secrets. When Jennifer Jaskolka-Brown overhears them she warns them that email has made it much easier to collect damaging evidence in divorce cases.
Day 6: North Liberty to Tipton - 62 miles
Charlie decides to join the Lance Armstrong peloton this morning for some fun. As you might expect with Armstrong the ride is a little faster paced today. There are several others brave enough to join the pack this morning:
- Colin Samuels says he'll never say never when Charlie asks if he'll ride again but Colin sure didn't like it when he got lost on the road from Harlan to Jefferson.
- David Lat explains that the only reason he is on the ride is because his playstation didn't arrive on time.
- Daniel Solove says this is more fun than being interviewed by Money Magazine.
- Barry Barnett offers tips on how to make the ride easier when you are with him.
- Jackie Dowd contemplates what life would be like without a legal system which is maybe a little profound this late in the ride.
- Carolyn Elefant is usually Solo by Choice but today she is content to ride with the group especially since she thinks Lance is so cute.
- Anne Reed says sometimes its better to walk this way but Charlie can't imagine a walk across Iowa.
Day 7: Tipton to LeClaire - 55 miles
The last day! On his ride to LeClaire, Charlie meets up with the anonymous Editor of Blawg Review to tell him the ride has been worth it. Together they dip their front tires into the Mississippi River where Charlie quips that normally what happens on RAGBRAI stays on RAGRBRAI, but this year what happens on RAGBRAI ends up on Blawg Review!
* Legal Disclaimer: This Blawg Review is a work of fiction. Names, characters, places, events and incidents either are the product of the author's imagination or are used fictitiously. Any resemblance to actual persons, living or dead, events or locales is entirely coincidental.
Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues. My dear friend and fellow Iowa legal blogger Brett Trout takes the helm next week. We wish him well as he tries to best the excellence of his previous effort on Blawg Review #106.
While Rush on Business tends to focus only on issues impacting Iowa businesses, we are taking a broader approach with the Iowa Law Blog to cover many different aspects of Iowa law. I know many believe that a law blog (or any blog for that matter) should cover a niche topic. However, I believe that a broader blog is better than no blog and it is frankly tough for a law firm of our size to have eight different niche blogs. Besides the New Jersey Law Blog is a prime example of how a state law blog can achieve remarkable blogging success.
The Iowa Law Blog will focus on several legal areas including:
- Utility law (the core of the law firm's work for over 70 years);
- Business Law;
- Trust and Estates;
- Trial and Mediation;
- Employment Law;
- Regulatory Compliance;
- Family Law; and
- Real Estate
Similar to what Stark and Stark has done in New Jersey, we hope to keep businesses and individuals updated on legal and legislative developments in the Hawkeye State. (Yes, you read that correctly despite the lack of wins and no offense).
We hope you find valuable information on the Iowa Law Blog and look forward to your comments.
Want some great business advice? Looking for something interesting? Try out these posts:
Matt Gardner has an interesting post on his Wealth and Estate Planning blog about the "pot of gold" Iowa landowners are sitting on because of the renewable energy craze and why they should review their estate plan. (Sounds like Iowa farmers have something in common with today's hip-hop stars - both ignore estate planning).
Michael Moore (this one's no sicko) talks about what not to do when it comes to employment record retention / destruction policies on his Pennsylvania Employment Law Blog. Michael has written some great material on this subject and has some terrific comments on this blog as well.
Roy F. Harmon III addresses record retention for ERISA Plan administrators on his Health Plan Law blog.
Carl Lingren shares key interviewing tips for employers on his Employer Ease blog.
Brett Trout says technology lawyers are so hot but have you seen this guy's face lately. (Trust me, there is a story there).
P.S. You may also want to check out Jerry's informative post on "tax traps for the unwary" involving "S" corporations.
I am excited to announce that the Sullivan & Ward law firm will publish its Iowa Law Blog beginning in mid to late August. The firm's law blog will cover general legal issues inlcuding the following areas of law:
- Utility and electric cooperative law;
- Business law;
- Trusts and estates;
- Family law;
- Real Estate law;
- Trial & mediation; and
- Regulatory compliance.
It will be a group effort by the lawyers at Sullivan & Ward. Our friends at Lexblog are developing the blog. Kevin and his staff have been great to work with. I'll let you know when it hits the blogosphere.
Anticipate the arguments that may be made and inferences that could be drawn from the destruction of certain documents and weigh it against the expense of retaining and producing the documents.
In a comment left on my Document Retention and Electronic Discovery post Michael pointed out that businesses need to carefully consider how the destruction of records pursuant to a policy might play to a jury. Often it may be important for a business to retain the information rather than destroy it. He warns,
The employer that destroys old e-mails "pursuant to its record retention policy" is left with the inference that the e-mail may have existed and, even worse, it was destroyed in order to keep the truth from coming out.
I agree that you must carefully consider these policies. That is why it is so important to assemble a team in order to develop a sound document retention policy. I would caution businesses to avoid pulling a form, changing the names and feel like you are covered when it comes to record retention. You should take into account the various ways your organization stores information and be sure to get the IT staff involved in the process. This will help you determine whether it is beneficial and practical to keep or destroy certain information. But whatever happens, do not forget to implement a litigation hold in the event of a dispute.
Part of the trial lawyer's job in business cases is explaining to the jury how a document retention policy works, why it was implemented and the methods by which the business consistently follows it policy. Developing trust can help alleviate the thoughts about businesses just wanting to keep the truth from coming out.
In today’s business environment, organizations need to respond to an increasing number of document requests, from regulatory compliance issues to internal investigations to full-scale litigation. Much of this information is available electronically. Despite the prevalence of such document requests most organizations remain reactive rather than proactive when it comes to dealing with the issue of electronic discovery.
In reality, electronic discovery of documents has been around for several years. But late last year, the federal courts amended its rules regarding electronic discovery. Organizations can no longer afford to be reactive when it comes to the discovery of electronically stored information (ESI). Organizations not prepared for electronic discovery could face fines and/or sanctions if they are sued in federal court. (FYI: It is also expected that Iowa will soon amend its state civil rules regarding electronic discovery making it imperative that all businesses in Iowa should prepare for discovery of ESI).
One way to prepare your organization for the new federal electronic discovery rules is to have a solid document and email retention policy. If don’t have such a policy you need one but even organizations that have a policy should review their policy to make sure it covers issues that may come up under the new federal rules. Some important issues to cover include, but are not limited to:
- The name of the custodian for electronically stored information;
- A list of servers and back-up tapes used by the organization;
- The different ways employees save information in the organization;
- How to implement a litigation hold including email back-up.
It is important to have your IT staff involved in the process. Many organizations will write a policy but fail to take into account the various ways the organization actually stores information. ESI is present, not only on office computers, but also laptops, BlackBerrys, iPhones, other PDAs, and even cell phones.
Fortunately the new federal rules provide a “safe harbor” provision for those organizations that inadvertently destroy ESI during the routine, good faith operation of an electronic information system. How do you qualify for this safe harbor? The best way is through the implementation of an ESI management system that is actively enforced and audited. Investing in an ESI management system is likely to pay big dividends down the road if you are ever involved in litigation and is critically important under the new federal rules regarding electronic discovery.
For more information regarding the new federal electronic discovery rules, document retention policies and ESI management, you may want to check out my podcast with Brett Trout on electronic discovery issues. Another great resource is the Electronic Discovery Law Blog which I highly recommend.
The Iowa Supreme Court Advisory Committee on the Rules of Civil Procedure have proposed amendments to the Civil Rules of Procedure. The proposed amendments primarily address the discovery of electronically stored information and mirror, in large part, the new federal rules concerning electronic discovery which became effective December 1, 2006.
The advisory committee will also be discussing a new Uniform Scheduling Order which will take into account the discovery of electronically stored information.
The Supreme Court Advisory Committee is currently seeking public comments. The deadline for comments is May 1, 2007. The email address for comments is email@example.com and must state "Iowa Rules of Civil Procedure" in the subject line.
As I have suggested in the past, this will make document retention policies a critical business practice for every Iowa business, large or small.
Iowa patent and information technology lawyer Brett Trout recently completed his series of posts on the new federal rules concerning electronic discovery. Brett and I also recently completed a podcast interview discussing the new electronic discovery rules. I encourage you to check it out. Brett has a lot of great information to share on the topic.
One way to prepare your business for the new electronic discovery rules is to have a solid document retention policy. I found this helpful white paper from LexisNexis Applied Discovery regarding the elements of a good document retention policy. Some of the key elements include:
- A written document retention policy must be actively enforced and audited;
- the policy should include the name of the custodian of the information;
- the policy should list the types of servers and back up tapes used;
- a lawyer needs to be familiar with the company's IT system;
- companies must educate employees about the policy and stress implications of not following it;
- the policy must be easy to follow, periodically updated and state how often it will be updated;
- the policy must address the different ways employees save information;
- the policy should also address the litigation hold including email back up tapes.
I am interested in hearing from you if you have other document retention recommendations. In the end, a solid document retention policy could help you avoid substantial sanctions and/or judgments for mismanaging or willfully destroying documents.
I have added podcasts to Rush on Business through BlogTalkRadio. The first podcast is an interview with Iowa patent and information technology lawyer Brett Trout concerning the important federal rule changes regarding electronic discovery and how it impacts your business. Brett is the author of Internet Laws Affecting Your Company. As Brett says, bury your head in the sand regarding electronic discovery and you may pay a hefty price. All companies, large and small, must familiarize themselves with the new rules and plan accordingly. If you wait until you get sued, it's too late.
Listen to the electronic discovery podcast by going directly to my BlogTalkRadio Host Page. The podcast is free.
Another upcoming podcast includes an interview with Matthew Ashburn from Sunbelt Business Brokers in Ankeny and Cedar Rapids. Matt has a lot of interesting information regarding how to prepare your business for an eventual sale. The key is good advance planning and it makes a big difference.
I hope you enjoy this new added feature to Rush on Business.
I ran across an excellent article by employment law litigator Jason Storipan of Stark & Stark on issues involving electronic discovery and employment law. Storipan cautions that employers must be aware and plan for the new electronic discovery rules:
". . . [e]mployment law is an area of the law that the increases in the use of technology in the business world increases the risk of a lawsuit. As any employer is aware, technology has changed the workplace, and its use can create a host of problems in the workplace that can lead to litigation. The new Rules on electronic discovery potentially can lead to even more problems for the unprepared employer. In this instance, the best way for the employer to prepare is to plan as if it is involved in litigation and meet with its counsel."
I agree with Storipan. Early preparation for electronic discovery by companies is crucial. The duty to preserve electronic materials begins when a company reasonably anticipates litigation, not once litigation begins. Spoilation is the destruction of of evidence. There are significant consequences for destroying evidence. Employers must be aware of how to preserve this evidence and comply with the new electronic discovery rules. Waiting until you get into litigation is not the answer.
FYI: Patent and information technology lawyer Brett Trout of Des Moines is also planning a series of posts on electronic discovery issues. Be sure to check those out.
The new federal electronic discovery rules became effective December 1, 2006. (See this earlier article for a more detailed description of the rules and the amendments.) Consulting companies appear to be hitting this hot and heavy as several of my clients have received marketing materials offering to assist with their electronic discovery needs. Many clients, especially those who have not been involved in federal litigation, have questions about electronic discovery and the impact of the new rules on their businesses.
In reality, electronic discovery of documents has been around for several years. The new rules have placed more emphasis on electronic discovery. In federal court litigation, the parties will now be required to address electronic discovery right up front in any lawsuit. In the past there were times where courts might have had questions about what was discoverable and what constituted a document for production purposes. Now it is unquestionable that all kinds of electronically stored information are discoverable including emails, spreadsheets, powerpoints, documents, etc. The parties will need to cooperate in order to exchange electronically stored information in a usable format. The organization of such information will take on a greater importance under the new federal rules.
A critical component of the rules is that if you anticipate ligation could occur or if litigation has already occurred you have a duty to preserve electronically stored information. This will help you avoid problems such the case described in this article.
This also brings to the forefront the need for a document and email retention policy. Many clients ask how long they need to keep certain documents. Unfortunately there is no magic formula but the answer varies with the industry and practices of each client and depends on the type of documents. The new rules do not require a document retention policy but recent cases involving the destruction of documents place a strong emphasis on having such a policy.
A $1.888 million dollar judgment in favor of a Delaware bankruptcy trustee stresses the importance of careful consideration before deleting electronic records from your company's computer system. In the case of In re Quintus Corp., 2006 WL 3072982 (Bankr.D.Del.Oct. 27, 2006), the Bankruptcy Court of the Delaware District imposed a penalty of summary judgment against a party the Court found intentionally deleted documents, including electronic records, that would have been harmful to the party's position in the case.
Electronic Discovery Law Blog has a complete summary of the case and a link to the opinion.
If you are interested in learning more about electronic records retention and discovery issues you may also want to check out the Fios white pages and articles on electronic discovery. Legal consultant Dennis Kennedy also has an excellent electronic discovery resources page.
As pointed out in an earlier post, the new federal electronic discovery rules become effective December 1, 2006. Fed. R. Civ. P. 26, 33, 34, 37, and 45 are being amended to take into account the importance of electronic records in the discovery process.
The new federal electronic discovery rules become effective December 1, 2006. Fed. R. Civ. P. 26, 33, 34, 37, and 45 are being amended to take into account the importance of electronic records in the discovery process.
Here are the pending rules amendments.
Thanks to the Minnesota Business Litigation blog for the reminder.
Dennis Kennedy also has a helpful electronic discovery resources page you may want to check out.