If you have a union in your workplace, or if unions have tried to organize workers in your workplace, you know that unions need ways to communicate with your employees. Before the current digital age, unions relied primarily on communicating through informational picketing and leafleting, posters and mailings, and individual and group meeting to encourage unionization or to communicate with members and represented employees. Today, with the modern workplace and internet-connected workers, communications can be conducted far more quickly, efficiently, cheaply and often more effectively through electronic means, such as email. But historically, unions have not been permitted access to company email systems. The current rule is that “employees have no statutory right to use the[ir] Employer’s e-mail system” for non-work-related purposes. If unions and the current Presidential administration get their way, that all might change.
July 22, 2014 No Comments
Breaking the Seal: Does Using Third Party eDiscovery Vendors Raise Privilege and Work Product Issues?
We’re not breaking news when we tell you that the exponential growth of electronic documents generated by clients has complicated the discovery process. Reducing this massive volume of information down to the relevant information needed to resolve a dispute requires the use of technology for collecting, filtering, processing, analyzing and producing electronically stored information. Attorneys now have to deal with metadata, servers, and social media in order to litigate the merits of cases. Ethics rules have been modified to require lawyers to understand the risks and benefits of technology. And preservation sanctions have alerted attorneys to the need to understand the difference between an email server and a locally-archived PST file. Attorneys should not try to lead double lives as data processors and litigators. Given the real need to properly handle these issues, consulting technology and litigation support providers is common and necessary. But does involving these third-party resources create a risk to the attorney client privilege or work product protections?
July 17, 2014 No Comments
Twice previously this year, we posted about the potential consequences to cloud-based media from the legal dispute between streaming video service Aereo and the television broadcast industry. Last week, the Supreme Court, in a 6-3 opinion, resolved much of the uncertainty detailed in those earlier posts. While the Court ruled against Aereo – holding that its transmission of the broadcasters’ content amounted to a public performance and thus violated the networks’ copyright – the majority’s decision took pains to limit its decision to the facts at issue. Justice Breyer, delivering the opinion of the Court, noted that “we have not considered whether the public performance right is infringed when the user of a service pays primarily for something other than the transmission of copyrighted works, such as the remote storage of content.”
June 30, 2014 No Comments
It should no longer be news that, for parties to most lawsuits, responding to discovery entails searching, reviewing, and producing electronically stored information. Also widely recognized is the fact that electronic discovery can be a costly, time-consuming burden. This burden is magnified for a nonparty subject to a request for ESI who likely won’t see any corresponding upside – that is, no need to use the documents produced to support a claim or defense of their own and no need to receive documents from others for the same purposes. Fortunately, therefore, there are some protections built into the Federal Rules that may minimize the burden to a nonparty on the receiving end of a subpoena. But given the relative scarcity of legal authority on the topic, the varying approaches at the state level, and specific facts of any particular case, nonparties facing discovery demands should try to negotiate a response plan that reduces legal risks and costs. A reasonable plan may even include cost shifting.
June 23, 2014 No Comments
Over the past few years, both the Equal Employment Opportunity Commission and the Federal Trade Commission have been closely scrutinizing the time-honored practice of employee background checks. We’ve posted about background checks before – particularly the risky business of relying on online information brokers instead of, or in addition to, a bona fide credit reporting agency. But the EEOC and FTC recently took the very unusual step of jointly issuing two guides on employment background checks, so we thought it might be helpful to give our readers a refresher.
May 1, 2014 No Comments
Recently the United States federal antitrust enforcement agencies — the Federal Trade Commission and the Justice Department’s Antitrust Division — issued a joint policy statement designed to “make it clear that they do not believe that antitrust is, or should be, a roadblock to legitimate cybersecurity information sharing.” The release made headlines globally, but the real story is that the risk of antitrust exposure for exchange of cyber risk information, even among direct competitors, was and remains almost non-existent.
That is because the U.S. antitrust laws (principally Section 1 of the Sherman Act) prohibit horizontal conspiracies and agreements among rivals, like price fixing, that harm competition. In some areas, information exchange can be competitively problematic, for instance where firms share non-public bidding or price data, or M&A transactions where the deal parties “gun jump” by acting as if they were already merged instead of continuing to compete independently. Yet as the policy statement confirmed, “cyber threat information typically is very technical in nature and very different from the sharing of competitively sensitive information such as current or future prices and output or business plans” and is thus “highly unlikely to lead to a reduction in competition.”
That’s hardly new. More than a decade ago DOJ said exactly the same thing in approving a proposal for cybersecurity information sharing in the electric industry, and Antitrust Division chief Bill Baer called the 2014 reaffirmation “an antitrust non-brainer.” But perceptions can have consequences, and some had voiced the fear that the exchange of IT security information among competitors could present a slippery slope, a forum for the kind of hard-core anticompetitive agreements the government loves to prosecute. At least that is what the White House, which called antitrust law “long a perceived barrier to effective cybersecurity,” reasoned in encouraging the FTC-DOJ clarification. So clearing away the underbrush of misinformation should help reassure business executives that companies which share technical cybersecurity information such as indicators, threat signatures and security practices, and avoid exchanging competitively sensitive information like business plans or prices, will simply not run afoul of the antitrust laws.
April 25, 2014 No Comments
Data breaches can happen at any time and to any business that deals with customer, employee or student data – just look at the Heartbleed security bug, the Target data breaches, or any of the other high-profile breaches that have made the news in the last year. We have posted previously about the importance of having an incident response plan in place before a cyber-security event occurs. As we explained, a good response plan incorporates several different components, one of which is identifying your insurance carrier well in advance and bringing the carrier into your response team.
But have you considered whether a cyber-security event is actually covered by your insurance policies? Many insurers now offer a number of dedicated policies or riders that specifically deal with privacy issues, including data breaches and any resulting liability. If you haven’t already, you should determine whether your current policy covers cyber incidents and the scope of your coverage, particularly if your business deals in large quantities of personally identifiable information. Having a comprehensive cyber-liability policy can ensure that your business will not directly bear the substantial costs that can arise from a data breach.
April 23, 2014 No Comments
Are You Ready for a World in Which More People Own a Mobile Device than a Toothbrush? You Better Be – It’s Already Here
In January 2014, we published a post on Why Social Media Matters. If you didn’t read that post, you should. Regardless, at the end of that article, we included a link to a YouTube video produced by a guy named Erik Qualman. He leads an increasingly influential organization, which started as a blog, called “Socialnomics.” Qualman founded Socialnomics to provide “social & mobile statistics, studies & surprises.” His passion and analysis regarding social media has led to a top-selling book and high-paying gigs as a keynote speaker. But Qualman’s thoughts on social media have been most widely distributed through social media itself — the popular YouTube video linked at the end of our post. Its various versions have been viewed millions and millions of times. It’s full of mind-boggling statistics. It’s entertaining. But, most of all, it’s thoroughly thought provoking.
This week, Qualman published the latest version – #Socialnomics 2014. If this video doesn’t give you and your business something to think about, we don’t know what will.
And, yes, the claim that More People Own a Mobile Device Than a Toothbrush is apparently true. So, the question really isn’t whether you are ready for such a world, because it’s already here. The question is — if you’re not ready, when are you going to start?
For more information, contact John Hutchins.
April 18, 2014 No Comments
Your litigation in 2014 will involve requests for production of electronically stored information (“ESI”), and there is a good chance that some of that information is stored somewhere in “the cloud.” ESI stored in the cloud has unique challenges and opportunities. Determining what relevant, discoverable ESI resides in the cloud; assessing whether it is, or should be, within the scope of your discovery plan; and executing a process for preserving, collecting, and producing it all require an understanding of the legal and practical issues impacting cloud storage. Here are a few key considerations to help you navigate the process.
April 17, 2014 No Comments
The paper check could disappear from the lives of everyday Americans within 12 years, according to researchers at the Federal Reserve of Philadelphia. In a recent poll, 38 percent of respondents indicated that they “never” write personal checks. In fact, the new trend in personal banking is the checkless checking account.
However, American businesses large and small are still pulling out their check ledger and making more 50 percent of their payments the old fashioned way—by paper check. That rate is down from 81 percent of business-to-business payments by paper check in 2004, 74 percent in 2007, and 57 percent in 2010. But even though B2B check payments have decreased in the past decade, the rate of decrease has started slowing—suggesting that it may be difficult for businesses to completely convert to a system of electronic payments.
April 8, 2014 No Comments