e-Discovery, e-Health and e-Law Checklist – No Part of the FRCP Amendments Enforceable December 1, 2006 Amended the Administrative Simplification subtitle of the Health Insurance Portability & Accountability Act of 1996

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    1.    What do the new amendments to the Federal Rules of Civil Procedure mean and what has changed

   2.    Who must keep what, where, and how

3.    When to destroy and when to stop

            4.    What data can be recovered and how can it be used in litigation

       5.    How can you assure legal and ethical compliance

       6.    Why violations will occur and why penalties will be sought , and how to avoid them

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1. Read Federal Rules of Civil Procedure including, inter alia, Rules 16(b), Rule 26(f), Rule 26(b)(2), Rule 26(b)(5), Rule 34, and Rule 37, regarding eDiscovery procedures, and any local court rules proposed and final.

2. Read proposed Rule 502 to amend the Federal Rules of Evidence regarding a possible change in attorney-client privilege and work product protections.

3. Read TITLE 18, § 1519 (part of Sarbanes-Oxley legislation), destruction, alteration, or falsification of records in Federal investigations and bankruptcy, regarding criminal penalties applicable independent of Sarbanes-Oxley coverage generally.

4. Read 17 CFR 240.17a-4, Rules of U. S. Securities and Exchange Commission, including in particular subsection (e), regarding electronic storage requirements.

5. Read local rules of professional conduct and responsibility for lawyers, including in particular Rules 1.1 and 1.6 regarding competence and confidentiality.

6. Read Uniform Electronic Transactions Act as enacted in relevant jurisdictions, including in particular Sections 2, 5, 7, and 12 regarding definitions and effectiveness with respect to electronic signatures and contracts.

7. Read UNCITRAL Model Law on Electronic Signatures adopted by the United Nations Commission on International Trade Law in furtherance of the General Assembly’s resolution 2205 (XXI) of 17 December 1966, by which it established the United Nations Commission on International Trade Law.

8. Read Restatement (Second) of Contracts including in particular Section 72 regarding digital signatures.

9. Read eSign Law, Electronic Signatures in Global and National Commerce Act, 15 USC § 7001, including in particular the definitions.

10. Analyze and review document retention compliance program internally for client and externally for contractors, agents, and others working with and for client.

11. Consider time and manner of litigation hold advisory, including to whom and how and when reminders are to be provided and to whom and how.

12. Visit client location(s) for personal view and understanding of the nature and magnitude of, and protections in place with respect to, eDiscovery information.

13. Initiate dialogue with opposing counsel regarding possible quick peek and claw back and other agreements.

14. Review law firm procedures regarding information retention including procedures of contractors and agents, and consider possibility of waiver of attorney-client privilege or other protections and the need to safeguard and produce client-related or other information, and provide advice regarding unintended and inadvertent loss of such protections including, inter alia, disclosures to spouse or others in family or to accountant.

15. Consider retention of expert technology consultants for client and others including law firm, in furtherance of proper understanding of current technology issues and concerns, and provide suitable contractual agreement with law firm in furtherance of maintenance of privileges and other protections.

16. Consider advice regarding cessation of email correspondence relating to pending or threatened litigation or other relevant claim or dispute and review attorney's responses to auditor inquiries and related letters to clients.

17. Recall that the concept of erasure of computer media information is generally misunderstood and media supposedly free of information may nevertheless contain information required to be maintained and produced.

18. Analyze all devices and media from the perspective of being possible information sources, including traditional computers, personal digital assistants, cellular telephones, seemingly inoperative equipment, equipment and media in the process of being discarded, service provider equipment and media, online retention services, prior versions, change tracking software, and recipients of information provided by client to others.

19. Consider retaining outside legal counsel with respect to professional responsibility obligations, particularly if law firm’s work product and the quality of thereof could be an issue and consider a “facts and circumstances” reporting to law firm’s malpractice carrier in connection with the foregoing if appropriate.

20. Review all HIPAA Administrative Simplification subtitle business associate, and confidentiality and non-disclosure, agreements executed by client and by law firm that are relevant, and reasonable assurances materials.

21. Consider appropriateness of providing the subjects of information, including patients, with notification of the possibility of or of actual disclosures of information.

22. Consider possible insurance protection or contractual or equitable indemnification resources for client and for law firm for costs of eDiscovery, and review all indemnifications that might include eDiscovery liabilities.

23. Consider relevant local law in multi-jurisdictional circumstances.

24. Consider and review procedure for attorney and other billing and recording of work including information recitations, and consider loss of confidentiality protections that disclosures to accountants could cause.

25. Discourage humor, whether good, bad, or otherwise.

26. Consider requesting court “sealing” of information.

ASG/tt

Alan@GoldbergLawyer.com

For Educational Purposes Only

Permission Granted to Reproduce for Educational Purposes