Presentation is loading. Please wait.

Presentation is loading. Please wait.

E-Billing, E-Strategy, E-Discovery Jack Pierce, Esq. John Browning, Esq. Jennifer Rothstein © CLM Litigation Management Institute 2013. All rights reserved.

Similar presentations


Presentation on theme: "E-Billing, E-Strategy, E-Discovery Jack Pierce, Esq. John Browning, Esq. Jennifer Rothstein © CLM Litigation Management Institute 2013. All rights reserved."— Presentation transcript:

1 E-Billing, E-Strategy, E-Discovery Jack Pierce, Esq. John Browning, Esq. Jennifer Rothstein © CLM Litigation Management Institute All rights reserved. The course material presented herein does not represent the views or opinions of any of the individual faculty members or instructors or of any of the companies or entities with which they may be employed or affiliated. Nothing in the course materials presented should be construed as legal or professional advice or the rendering of a legal or professional opinion on any specific factual situation. Always seek appropriate legal and professional business advice in the context of specific cases.

2 E-Billing Evolution and Development Jack Pierce, Esq.

3 For Services Rendered...

4 Origins of E-Billing  1950s – Invoices for “ Services Rendered ”  1960s – “ Time records are valuable but not conclusive ”  1970s – shift from value to time  Evolution – Transition from value to time- based billing  1990s – Goals of a paperless office:  Development of LEDES and UTBMS

5 LEDES  LEDES – Legal Electronic Data Exchange Standard  1995 – Price Waterhouse convenes a consortium to define a standard electronic billing format for use by the legal industry  LOC – LEDES Oversight Committee  I nternational  Non-profit  Creates and maintains open standard formats for electronic billing

6 Let’s Design a System That Will Fly…

7 Task-Based Billing  1990s – Demands by ACC, corporate clients, ABA, Price Waterhouse and others  Goal – Common Language to describe tasks performed and expenses incurred  Collaboration resulted in the development of UTBMS (Uniform Task-Based Management System)

8 Initial Goals of E-Billing  Automate and streamline invoice review process.  Catch billing errors.  Cost-saving objectives – saving companies time and money in the bill review process.  Early systems did little more than provide an electronic (or scanned) version of the invoice for routing and approval.

9 Evolving Goals of Today ’ s E-Billing  Today ’ s systems are more robust and offer much more.  Ability to create legal budgets.  Conduct audits of legal bills using standards set by multiple billing guidelines.  Corporate scandals (Enron, WorldCom) have resulted in new regulations and greater scrutiny over corporate spending and compliance.  E-billing monitors law department pending and budgeting.

10 Let’s Build a Better Boat…

11 Other Evolving Goals…  Greater analysis of outside counsel ’ s performance  Evaluation of staffing decisions of outside counsel.  Evaluating the effectiveness of AFAs.  Triaging – Assists general counsel in the evaluation of the company ’ s triaging of legal work to outside law firms. (The right cases to the right law firms.)

12 Evaluation of YTD Top Billing Firms

13 Comparison of Fees to Date

14 Analysis of Historical Timekeeper Rates

15 Review average rates by position for a particular firm over the course of several years.

16 “ We’re Processing Your Invoices… ”

17 Benefits and Cost-Savings  Paperless invoice cost savings – reduces paper, printing, copying and storage costs.  Streamlines the review process – Reduced staffing of invoice reviewers.  Time savings in the review process.  More efficient review and quicker approval time.  Quicker turn-around in the payment of invoices.

18 Sometimes Things Don ’ t Work As Planned…

19 Potential Pitfalls – Bumps Along the Road Things Don’t Always Work Smoothly:  Automatic rejection of non-compliant entries or format increases and the rate of re-submission.  Time involved in the re-processing of rejected invoices.  Difficulty in attempting to follow divergent re-submission processes for multiple clients with different reprocessing procedures.  Loss of otherwise billable time spent on re-processing, re-submission and collection process.

20 Some Key Words to Avoid Chart your course carefully – Even though your billing entry may be a legitimate charge, certain words will trigger automatic rejections. Examples:  Calendar – “Chambers conference with Judge Olsen to outline upcoming discovery calendar and motions.”  Index – “Consult with economics expert regarding the applicability of the index of economic indicators to plaintiff’s damages analysis.”  Organize – “Organize trial exhibits to reflect change in order of witnesses.”

21 Avoid Certain Combinations  Is this really block-billing?  “Review & Revise”  “Plan and Participate in…”  “Review and Respond to ”  “Travel to and attend…”  Avoid the use of the semi-colon.  “Meet with witness Smith; prepare Smith for deposition.”  “Review motion to compel; outline response to motion.”  “Meet with trial graphics expert; outline development of new trial exhibits.”

22 Words That May Require More of an Explanation  Supervise  Coordinate  Strategize  Attention to  Monitor  Complex  Analyze  Revise  Obtain  Strategize  Coordinate  Effectuate  Organize  Commence  Work On  Finalize  Gather  Locate  Process  Plan  Update  Begin  Continue to  Input

23 When We Get the Kinks Out We Can All Be Winners!

24 E-Strategy Social Media and Its Impact on The Legal System John Browning, Esq.

25  Over 1 billion unique users each month; 72 hours of video are uploaded to YouTube each minute  Over 1 billion users  Over 400 million tweets daily  Over 200 million users

26 Facebook and Twitter  72 percent of all adult Americans have at least one social networking presence  One in every seven minutes spent online is spent on Facebook  Facebook users spend more than 10.5 billion minutes per day on Facebook  Twitter processed 5,000 “tweets” a day in By 2012, that figure had soared to over 400 million a day.

27 Your Facebook Status – “Served” Changing The Way We Look At Service Of Process  Eight countries outside the U.S. permit service of process via social networking platform (Australia, New Zealand, Canada, United Kingdom, Singapore, Estonia, Ireland, South Africa)  Three states in the U.S. – Minnesota, Texas, Utah  At least one federal court.

28 Changing The Way We Look At Jurisdiction Will Facebook posts or Twitter tweets give rise to jurisdiction?  Some courts say no:  Lyons v. Rienzi & Sons, Inc.  Lifestyle Lift Holding Inc. v. Prendiville  NuboNav, Inc. v. NB Labs, Ltd.  Some courts say yes:  Hale v. Richey  Waterman Steamship Corp. v. Ruiz  Juniper Networks, Inc. v. Jupiter Media, LLC

29  New Causes Of Action  “Libel By Twitter”  New Defenses  “The Facebook Alibi”  New Duties  Is There A “Duty To Tweet?”

30 Constitutional Issues Is a “like” on Facebook protected speech?  Bland v. Roberts  Mattingly v. Milligan

31 Constitutional Issues Cyberbullying laws and the dangers of being overly broad  Proposed Indiana legislation against “delinquent, criminal or tortious” or “juvenile” acts online  The split in circuits over schools’ power to punish student social media expression (Layschock, Kowalski, and other decisions)  Laws banning sex offenders from social media held unconstitutional

32 Who Monitors The Monitors?  Universities turning to third party vendors like UDiligence and Varsity Monitor to monitor the social media activities of student-athletes  Current laws and pending legislation against schools requiring or requesting social media passwords from students

33 Constitutional Issues Fourth Amendment U.S. v. Meregildo (no 4 th Amendment violation where incriminating content from criminal defendant’s Facebook page was provided to prosecutors by a cooperating witness with access)

34 International Law  Access to social media/the Internet as a basic human right?  Implications of the “Arab Spring” – social media as galvanizing political tools, and as governmental response  Tajikistan blocking Facebook access  Kenya tracking of Facebook and Twitter for election “hate speech”  London riots

35 Securities Law  FINRA and other regulatory bodies weighing in with social media guidance  Social media and public disclosure rules: did NetFlix CEO Reed Hastings violate SEC rules by making a single Facebook post?  FBI use of social media to investigate securities fraud

36 Intellectual Property Law  Copyright implications of using photos posted to Twitter – AFP v. Morel  Use of Facebook fans and likes as evidence of secondary meaning in trademark cases  Use of “likes” and other social media content to establish recognition of trade dress/famousness  Paramount Farms Intern. LLC v. Keenan Farms, Inc.

37 Employment Law Whose social media account is it, anyway?  Phonedog v. Kravitz  Ardis Health v. Nankivell  Eagle v. Morgan

38 The National Labor Relations Board wave of decisions involving “Facebook firings”  Is it harassment, or “protected concerted activity?”  What should, and shouldn’t, be in a social media policy? Seeking applicants’/employees’ Facebook passwords  Barred in 6 states; legislation pending in at least 10 more  U.S. Social Networking Online Protection Act

39 Criminal Law  LexisNexis Risk Solutions survey of federal, state and local law enforcement — 83 percent are using social media, particularly Facebook and YouTube  NYPD social media unit  Social media content increasingly being used for proof of motive, state of mind, eyewitness identification (Bradley v. State). Sentencing (Hoffman v. State), and monitoring for parole/probation violations (People v. Mincey)

40 Use Of Social Media In Discovery  Nearly 1,000 reported cases 2012  Seeking entire Facebook account/Facebook password for unfettered access:  Some courts allow: Romano v. Steelcase, Inc.  Some courts do not: Tomkins v. Detroit Metro Airport  What is the trend?

41 Social Media’s Many Uses  Not just incriminating photos or Facebook wall posts any more  Social media discovery also permitted to satisfy jurisdictional questions as well as the issue of a party’s domicile for choice of law determination  In re Air Crash Near Clarence Center

42 Evidentiary Issues  How to authenticate social media content?  Circumstantial authentication permitted:  Tienda v. State  People v. Assi  People v. Valdez  Circumstantial authentication not allowed:  Griffin v. Maryland  Commonwealth v. Williams  State v. Eleck

43 Ethical Issues  Duty of Competence  ABA Ethics 20/20 Commission changes  National trend  Ethical Information-Gathering  Ethics opinions around the country about “false friending” and pretexting  Ohio lawsuit against insurance defense firm and carrier  New Jersey ethics proceedings

44  Preservation of Evidence  Lester v. Allied Concrete (Va. S. Ct. 2012)  Gatto v. United Airlines (D. of N.J. 2013)  Client Confidentiality  Fermin Ricalde case in Miami/Dade County  Attorney Use of Social Media in Jury Selection

45 Dealing With The Digital Afterlife  Increasing number of states adopting legislation to give testators control over their digital assets after death (Oklahoma and others)  The “If I Die” App and other responses by providers

46 Judges and Social Media  To friend or not to friend, that is the question – just not in Florida, where judges friending attorneys is grounds for disqualification  Domville v. State  Judicial ethics opinions about social media are increasing around the country (e.g., Youkers decision from the Dallas Court of Appeals, May 2013).

47 E-Discovery Jennifer Rothstein

48 E-Discovery Overview  E-Discovery – a refresher  Updates to the rules  Strategies  Insurance Channels

49 E-Discovery – Review and Refresh  What is it and why is it still relevant?  Costs and risks involved  Where do we see it?  State vs. Federal level  Critical updates: Proportionality!  June Proposed Amendments to Rule 26 (b)(1) approved for publication and comments

50 Proportionality!  Rule 26 (b) (1) Discovery Scope & Limits proposed language  Case law  Rimkus v. Cammarata (direct)  Solvay (indirect)

51 Proportionality Analysis  States amending their rules  Predictive coding/technology assisted review  Case law: Kleen Products; Da Silva Moore; EORHB (aka “Hooters” case)  7 th Circuit Pilot Program contemplates proportionality as one of its principles  International Trade Commission Rules

52 e-Discovery Strategies  Defensible document retention policy put into place in the ordinary course of business  Fire drills – who do you share it with in your organization?  Does it matter what type of industry you’re in?  Reasonable anticipation of litigation  Who is responsible for anticipation?  Does carrier notice = reasonable anticipation?

53 Legal Holds  Nominate a person within the organization to be responsible for the legal hold process  Legal hold process:  Implementation  Communication  Enforcement  Release

54 The e-Discovery Team  Working with outside consultants and vendors  Reliable, effective cost comparisons  Engaging the risk manager  Relying on your carrier for assistance and e-Discovery communication with your carrier

55 Insurance Channel New to the game or always there?  Is E-Discovery a covered cost in an insurance policy? Where is it referenced?  Litigation management – definition of defense costs  Separate defined term  E-Discovery products  Stand alone policies  Endorsements  Sublimits  Consulting services/readiness assessments

56 E-Discovery Jennifer Rothstein

57 E-Discovery Overview  E-Discovery – a refresher  Updates to the rules  Strategies  Insurance Channels

58 E-Discovery – Review and Refresh  What is it and why is it still relevant?  Costs and risks involved  Where do we see it?  State vs. Federal level  Critical updates: Proportionality!  June Proposed Amendments to Rule 26 (b)(1) approved for publication and comments

59 Proportionality!  Rule 26 (b) (1) Discovery Scope & Limits proposed language  Case law  Rimkus v. Cammarata (direct)  Solvay (indirect)

60 Proportionality Analysis  States amending their rules  Predictive coding/technology assisted review  Case law: Kleen Products; Da Silva Moore; EORHB (aka “Hooters” case)  7 th Circuit Pilot Program contemplates proportionality as one of its principles  International Trade Commission Rules

61 e-Discovery Strategies  Defensible document retention policy put into place in the ordinary course of business  Fire drills – who do you share it with in your organization?  Does it matter what type of industry you’re in?  Reasonable anticipation of litigation  Who is responsible for anticipation?  Does carrier notice = reasonable anticipation?

62 Legal Holds  Nominate a person within the organization to be responsible for the legal hold process  Legal hold process:  Implementation  Communication  Enforcement  Release

63 The e-Discovery Team  Working with outside consultants and vendors  Reliable, effective cost comparisons  Engaging the risk manager  Relying on your carrier for assistance and e-Discovery communication with your carrier

64 Insurance Channel New to the game or always there?  Is E-Discovery a covered cost in an insurance policy? Where is it referenced?  Litigation management – definition of defense costs  Separate defined term  E-Discovery products  Stand alone policies  Endorsements  Sublimits  Consulting services/readiness assessments

65 E-Billing, E-Strategy, E-Discovery Jack Pierce, Esq. John Browning, Esq. Jennifer Rothstein


Download ppt "E-Billing, E-Strategy, E-Discovery Jack Pierce, Esq. John Browning, Esq. Jennifer Rothstein © CLM Litigation Management Institute 2013. All rights reserved."

Similar presentations


Ads by Google