NFPA 2006 Salary Survey

NFPA has released their 2006 Salary Survey (click here). The survey has some positive information regarding the strides that paralegal profession has made and continues to make. IPA wishes everyone a safe, happy, and prosperous new year.

What's coming in 2007?

While many of us are trying to think of resolutions for the new year (yes joining a gym and working out is still a noble goal), it is a good time to make some predictions for 2007. My predictions for 2006 were about 50/50, so I am going to make 2 predictions this year, double down so to speak, and hope for best.

This will be the year of EDD:

Perhaps it is a given with the rule changes going into effect, but I believe that this year will see significant interest in EDD on both the legal side and the corporate side. I have seen very little interest from each as to the significance of the problem. I believe that primary barrier to more EDD is a result of hesitant trial lawyers who are still a little weary at the idea of diving into EDD issues. I believe that once the trial lawyers see the benefits of EDD and the inescapable benefits and necessity of same, we will see the flood gates open. Since it is usually corporations and defendants who hold the majority of ESI, defendants still seems very comfortable just tabling the issue also.

RSS is in, keeping your head in the sand is out:

I have found that the aspect of legal tech that turns off most legal professionals is the shear volume of information that is out there. The information is constantly evolving and changing. It seems that you either need to dedicate at least a couple of hours every day or week to ongoing issues, products and developments; or you might as well just stay out altogether. I suppose it is the same with many dynamic areas of interest, i.e. sports or politics, where the topics of interest are constantly changing. If you don't know what's going on, you may feel that your time is better spent in other areas. Well, RSS feeds, which have been around for years, have now become common place and hold the answer for the age long problem of finding more hours in the day. RSS feeds allow you to quickly keep up to date on what is going on in legal tech websites, blogs, etc. Additionally, Microsoft's inclusion of an RSS reader in Internet Explorer 7 (IE7), makes the process even easier. For more information on RSS feeds in the legal profession, click here.

IPA would like to thank everyone for their support of IPA's Holiday Luncheon and for their support of Rupert's Kids

IPA is pleased to announce that its Holiday Luncheon was a success, and that due to the generous support of the participants and lawfirms, we exceeded our fundraising goal that went directly to benefit Rupert's Kids! Rupert's Kids is a non-profit organization designed to empower youth to discover their inner strengths, realize their own self worth and their value to society.

Among other things, the goals of Rupert's Kids are as follows:

1. Provide mentoring and educational programming to youth.

2. Develop housing options for low-income families.

3. Foster community partnership, which serve youth and families.

4. Facilitate delivery of financial assistance and/or services to youth, low-income and homeless families in the areas of education, vocational training and job placement.

5. Develop committed volunteers and donors to provide resources of time, money and property.

The program is designed to teach valuable job skills and instill a sense of confidence and self worth that will lead each of the members of Rupert's Kids towards stable housing, employment and relationships which, in turn, will help them become independent contributing members of their communities.

Check out Rupert's Kids' website. (click here).

ABA Tech Show 2007

The annual ABA Tech Show will be held on March 22-24, 2007, in Chicago, IL. I attended this past year and was very impressed (especially with the discounted paralegal rate of under a $100). This year, the advanced registration paralegal rate is $245, which I consider very reasonable for a 3 day technology conference of some of the best legal tech seminars in the country. I have listened to reviews of the different legal tech shows out there; most notable, legal tech east coast - NY (which is primarily considered a vendor show), legal tech west coast - CA (again, considered a vendor show), and the ABA Tech Show. Maybe it because I'm from the midwest and Chicago is just a 4 hour train ride away, or maybe its because I enjoy the city of Chicago, but I believe that the the ABA Tech Show is a step above the others. It seems to be focused primarily on educational and instructional seminar tracks. There is a very large expo hall with every vendor immaginable, but the focus seems to be on legal technology issues first and foremost. My only complaint last year was the intermitant wifi signal.

The program grid is now available on-line and it is sure to excite anyone who enjoys legal technology. If you are only able to make it to one legal technology show this year, I highly reccomend the ABA Tech Show.

Paralegals and regulation

I came across this terrific article entitled "Why a Paralegal Rather than a Secretary."

It is a very well written explanation about what being a paralegal is all about. I have seen far too many law firms simply refuse to take full advantage of the capabilities of their paralegals. I think this is one reason to support regulation of paralegals in Indiana. Fairly or not, it seems that many attorneys simply view paralegals as hodge-podge of legal staff. Some cannot distinguish paralegals from legal secretaries and many firms consider the paralegals a billable version of legal secretaries. Hopefully, regulation under Rule 2.2 will help define paralegals as seperate subsection of legal professionals.

Overlooked sources of EDD

In reviewing a recent T.R. 30(B)(6) deposition transcript in a case involving EDD collection, I realized how easy it is to overlook one of the more popular sources of EDD, portable mp3 players. I have heard mp3 players mentioned as possible sources of EDD for years, but the reference is often made in passing and only when referring to the least likely sources of ESI (cell phone memory chips and PDAs also being referenced in this category). I realized that mp3 players are perhaps a more likely sources of ESI than most people realize. After all, the recent mp3 player trend has been towards higher capacity portable hard disk drive (HDD) based devices and away from smaller flash memory based devices. Although most people buy these devices (Ipod, Creative Zen, and MS Zune, being the most popular) to listen to music, most people also use them as handy portable HDD to hold, or at least transport larger data files that might not fit on a CD or DVD.

I recently read about a case where analyzing an Ipod from a party to litigation discovered several large .PST files. The person in question had stored the .PST files on his mp3 player to transfer the files between his work computer and an external hard drive device at his home. He simply forgot to delete the devices from his Ipod. I recently polled some of my friends of on the subject and found that the majority of them used their mp3 players as portable HDD to store data files. Most of those that used it for this purpose, had used the device to transfer files between work and home or vice-versa.

So remember, if the President of the United States uses an Ipod, then so might Joe accountant or Sally executive.

I’ve decided to take PACE – now what do I do?

Good for you!! You’ve made the decision to sit for PACE, submitted your application to NFPA and received approval as a qualified candidate. The next step is to order the PACE Study Manual from NFPA, if you haven’t already. This can be ordered directly from NFPA at http://www.paralegals.org/ at a cost of $55, plus $10 shipping. The PACE Study Manual is a necessity as it sets out a blueprint that has been followed for PACE with the five domains weighted as follows:

Administration of Client Matters 23%
Development of Client Legal Matters 30%
Factual and Legal Research 22%
Factual and Legal Writing 20.5%
Office Administration 4.5%

Interspersed throughout these five “domains” are questions that also cover ethics and technology. The PACE Study Manual also contains a bibliography of materials used in preparing the manual. Some of the test questions on PACE may be found in the resources set out in the bibliography and not specifically set out in the Study Manual. Therefore, it is important to be familiar with those resources.

There are any number of ways to study for PACE. You need to decide what works best for you. Some of the ways to study for PACE include:

• Studying on your own with the PACE Study Manual and suggested references
• Getting a study buddy
• Taking the 7-week online PACE review course offered through NFPA and AIPS (details and cost information available at http://www.paralegals.org
• Purchase of PACE Study Manual required
• Work directly with an instructor who is a PACE Registered Paralegal (I have met her and she is great! She is very committed and passionate about helping paralegals study for PACE)
• Online course provides sample test questions no longer kept in the PACE test bank
• Cost includes a mock exam at the end of the course
• The next online course begins January 22, 2007
• Start or join a formal study group. Plans are underway to get a Central Indiana study group formed;
• Participate in a local review course offered periodically by IPA. Plans are underway to present a review course in the spring of 2007
• Contact your local PACE Ambassador for help in locating study materials. IPA is building an IPA PACE Library maintained by the PACE Ambassador for use by PACE candidates in helping to provide study materials/references. These resources are available to be “checked out” by PACE candidates. Calling all paralegals!! If you have old PACE study manuals, paralegal textbooks, bar charts, flashcards, etc. that you are not using and would like to donate to the IPA PACE Library to become the property of IPA, please contact Debi Neale, PACE Ambassador mailto:debi@tabberthahn.com). Let’s build up the IPA PACE Library to help those paralegals who may need our help!

Places to Find Study Materials

1. National Federation of Paralegal Associations Web site (http://www.paralegals.org/)
2. Your local PACE Ambassador and/or paralegal association
3. Your local West, Delmar, Aspen, or James publishing representative
4. Your local legal publication representative
5. Amazon.com (note publication date of textbook)
6. Your local community college or university bookstore that has a paralegal program
7. Your local law school bookstore
8. National Paralegal Reporter and Legal Assistant Today (for articles on legal research, technology, and procedures; and updates on various areas of law)
9. Previous PACE study groups
10. Barnes & Noble, Borders, or any other local bookstore that has a “law” or “legal”
    section
11. National Association of Legal Assistants Web site (http://www.nala.org/)
12. Your firm’s law library and librarian
13. Any student who has completed a paralegal program
14. Bar charts: http://www.barcharts.com/, priced from $2.95 to $5.95 (can also be found
    at local law school bookstores). Bookstores such as Borders and Barnes and
    Nobles may sell bar charts.
15. Seminars sponsored by your local paralegal association, state and local bar associations, PEI, NBI, Lorman, or other continuing education providers

And………..last, but not least…

“IPA Cares – PACE Candidate Survival Kit”

IPA congratulations you on your exciting decision to sit for PACE! This decision alone is a personal achievement and “IPA Cares.” To demonstrate IPA’s moral and professional support of your decision, IPA has developed its own “IPA Cares: PACE Candidate Survival Kit” specifically designed to enhance your study preparation and test taking. This Survival Kit covers in more detail such matters as how PACE was created and designed, the theory behind the writing of the test questions, how to gain employer support regarding your decision to take PACE, frequently asked questions about the online review course, information on PACE study materials and study references, the benefits of participating in a study group, sample test questions, details regarding setting up the test date, test taking tips, test specifics unique to PACE, and overcoming anxiety about PACE. IPA supports your decision to take PACE! The cost of the IPA Cares: PACE Candidate Survival Kit is free to you, however, it is not free to create. Therefore, it can only be provided to serious candidates after they have made the commitment to take PACE and purchased the PACE Study Manual. If that is you, please contact me so I can get a copy of the PACE Candidate Survival Kit to you. IPA Cares! We will do whatever we can to help you proudly achieve your goal of successful completion of PACE.

2007 PACE ONLINE REVIEW COURSE DATES:

January 22, 2007
March 5, 2007
April 16, 2007
June 11, 2007
July 23, 2007
September 10, 2007
October 22, 2007

The cost of the course is $395. The student must purchase the PACE Study Manual before the 7 week class starts. Contact Debi Neale, R.P. at debi@tabberthahn.com or http://www.paralegals.org/ for more information.

Unauthorized Practice of Law – Where is the Line Drawn?

By Lauren K. Jones, RP


Lauren K. Jones, RP continues her articles on Paralegals and the Unauthorized Practice of Law – Where is the Line Drawn?

Legal Advice and Legal Opinions

It is clear that only licensed attorneys may give legal advice and render legal opinions. Is there a difference between “legal advice” and “legal opinion?”

What is a Legal Opinion?

Rule 2.1 states that advice goes beyond giving a legal opinion. Advice refers not only to law but to other considerations such as moral conduct, economic, social and political factors, that may be relevant to the client's situations.

(Comment [1] from Rule 2.1): ...honest assessment. Legal advice often involves unpleasant facts that a client may be disinclined to confront.

(Comment [2] from Rule 2.1): ...relevant moral and ethical considerations in giving advice...moral and ethical considerations impinge most legal questions and may decisively influence how the law will be applied.

(Comment [3] from Rule 2.1): ...responsibility as advisor may include indicating that more may be involved than strictly legal considerations.

What is legal advice? If you are asked to choose for someone between one alternative or another, that is giving legal advice.

The core element of practicing law is giving of legal advice to a client and placing oneself in a very sensitive relationship where the confidence of the client and management of his affairs is left totally in the hands of the "attorney." (Matter of Fletcher, 655 N.E.2d 58.)

Practicing law includes doing or performing services or acts of justice and any matter depending therein, throughout its various stages and includes legal advice and counsel. (Matter of Fletcher, 655 N.E.2d 58.)

The following excerpt from the May 2005 edition of Update, a publication of the American Bar Association Standing Committee on Paralegals (Vol. 6, No. 3, p. 4):

“Giving Legal Advice. Courts have traditionally applied three tests to determine whether conduct constitutes the giving of legal advice. The first test is whether the advice given is generally understood to require legal skill or knowledge. The second test is whether the conversation involves advising someone of their legal rights. Most courts recognize a standard exception: a response to a client’s inquiry does not constitute the rendition of legal advice when the legal assistant merely acts as a conduit of advice between a lawyer and a client. If a legal assistant does not convey any thoughts or advice of his or her own, then he or she is not giving legal advice, and therefore, not practicing law. Thus, legal assistants delivering information pursuant to instruction and on behalf of a lawyer should always be certain to make it clear to the client that the lawyer is the source of the information. The third test is whether the advice given is not normally given by a non-lawyer as part of another business or transaction. If someone who is not a lawyer dispenses law-related advice in furtherance of the ordinary course of his or her regular job, it may not amount to the practice of law. For example, many bankers and financial planners regularly dispense advice that involves legal aspects of investment and tax situations.”

Next Article: Rules of Professional Conduct – What Services can a Paralegal Perform in Indiana?

Judge Posner is rumored to be making an appearance in the virtual world "second life"

Do you ever wonder what it would be like to have a different life? A different house, a different job, dare I say, a different spouse? Well second life is about as close as you can get. Second life is a virtual world that only exists on servers around the world. You can create a character (an "avatar") and build your life. You can earn money, buy things, i.e., land, house, buildings, etc. If you want to build a bigger and better house, you can sell your house to a "younger" avatar. Even when you are away from your computer (perhaps working in the real world), your virtual house, dog, etc. remain for others to see.

Several months ago, there was a virtual bank robbery when hackers entered the virtual bank in the virtual world and stole virtual money. There are concerts that you can buy tickets for and attend (virtually). There are press conferences, question and answer sessions, and just about everything else you can think of. Politicians from all stripes have made appearances in Second Life to give campaign stump speaches.

Former Virginia Govenor, Mark Warner:



Well, we can add one more avatar to the list, Hon. Judge Richard A. Posner, Seventh Circuit Court of Appeals. Judge Posner is considered by his peers to be one of the brightest legal minds of our time. Judge Posner is rumored to be making an appearance in second life for the purpose of giving an interview and discussing constitutional law. Click here for more information on the developing story.

ABA issues ethics opinion that metadata mining is permissible

By: Courtney David Mills IPA Technology Director and Litigation Paralegal at Hoover Hull LLP

For the past several years, there has been a standing question about the efficacy searching opponent’s electronic files for meta-data, i.e., hidden data. It should be noted that the vast amount of meta data is irrelevant file information about when a document was created, when it was last access, when it was last printed, etc. The truly sensitive information that is most associated with horror stories about accidentally disclosure relates to tracked changes in word documents, which were not properly removed prior to sending the word document to opposing counsel or the Court.

There were essentially two schools of thought on the issue, one side (mainly the states of New York and Florida) likened the practice of meta-data mining to rifling through the desk draw of an opponent and also compared the issue to inadvertent production of privileged information, i.e. faxing the edited version of a letter with the attorney notes in the margin, rather than the finalized version of same. The other side of the debate stated that attorneys were, or should have been, well aware of issues associated with meta-data and stated that searching files for such information was part of their zealous representation of their respective clients and was simply “fair game.”

Well, after several years of conflicting opinions from state bar associations, the American Bar Association has issued an ethics opinion stating that meta-data mining is permissible. (click here for a copy of the full opinion).

Court awards attorneys fees and costs due to "Plaintiff's Skulduggery"

skul·dug·ger·y [skuhl-duhg-uh-ree]–noun, plural -ger·ies.

1. dishonorable proceedings; mean dishonesty or trickery: bribery, graft, and other such skulduggery.

2. an instance of dishonest or deceitful behavior; trick.

Wow! Whenever a judge has to throw out a word like "Skulduggery", you are probably in for a zinger.

This decision followed the Court’s earlier order on sanctions in which the court dismissed the complaint with prejudice and invited the defendant to file an application for attorneys’ fees. Defendant sought $79,524.07 in attorney's fees, and $20,472.32 in costs. The court noted there was ample justification for a fee award in the record, since the evidence showed that the plaintiff “not only altered and destroyed evidence to prevent relevant discovery by Defendant, but continued to modify and destroy evidence even after the court itself had made it clear that the evidence constituted an appropriate area of inquiry for Defendant.” It reduced the attorney fee amount after noting that "a fee award of nearly $80,000 would be excessive." The Court also awarded all costs based on the fact that the "retention of experts was particularly necessary to uncover Plaintiff's skulduggery."

Plasse v. Tyco Elecs. Corp., 2006 WL 3445610 (D. Mass. Nov. 8, 2006)

Misconceptions about the changes to the FRCP

By: Courtney David Mills
IPA Technology Director and Litigation Paralegal at Hoover Hull LLP

Ever since the mainstream media (I hate using this term, but it seems to be accurate) received notification about the changes to the FRCP, their explanations to the general public have been frightening to say the least. I have heard some news stories say that companies are now required to log and store every email you send, every web page you visit and every communication that you make to the outside world. WRONG!!

Although the misperceptions are numerous, I would like to discuss the mis-representations about document retention. The rules really do not address document retention other than the safe harbor provision of T.R. 37 which states that "[a]bsent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system." Routine, good-faith operation does not mean that companies need to store everything for an indefinite period of time. It simply means that companies should have document retention policies in place and should abide by them. If they fail to do so, and potentially relevant information is lost, they will have a hard time claiming protection under the safe harbor provision of T.R. 37, and will likely be open to charges of spoilation of evidence. It doesn't matter whether the policy is to keep email on active data servers for 1 week or 1 year. Just as long as the company has a policy, and follows it.

I suppose the lesson for the day is that while the rule changes are certainly relevant to the legal profession in general, they are probably only interesting to the geeks in the legal profession (I count myself as one). The public at large will likely not notice much of a difference in their day-to-day lives.

I’ve decided to take PACE – now what do I do?

Good for you!! You’ve made the decision to sit for PACE, submitted your application to NFPA and received approval as a qualified candidate. The next step is to order the PACE Study Manual from NFPA, if you haven’t already. This can be ordered directly from NFPA at http://www.paralegals.org/ at a cost of $55, plus $10 shipping. The PACE Study Manual is a necessity as it sets out a blueprint that has been followed for PACE with the five domains weighted as follows:

Administration of Client Matters 23%
Development of Client Legal Matters 30%
Factual and Legal Research 22%
Factual and Legal Writing 20.5%
Office Administration 4.5%

Interspersed throughout these five “domains” are questions that also cover ethics and technology. The PACE Study Manual also contains a bibliography of materials used in preparing the manual. Some of the test questions on PACE may be found in the resources set out in the bibliography and not specifically set out in the Study Manual. Therefore, it is important to be familiar with those resources.

There are any number of ways to study for PACE. You need to decide what works best for you. Some of the ways to study for PACE include:

• Studying on your own with the PACE Study Manual and suggested references
• Getting a study buddy
• Taking the 7-week online PACE review course offered through NFPA and AIPS (details and cost information available at http://www.paralegals.org
• Purchase of PACE Study Manual required
• Work directly with an instructor who is a PACE Registered Paralegal (I have met her and she is great! She is very committed and passionate about helping paralegals study for PACE)
• Online course provides sample test questions no longer kept in the PACE test bank
• Cost includes a mock exam at the end of the course
• The next online course begins January 22, 2007
• Start or join a formal study group. Plans are underway to get a Central Indiana study group formed;
• Participate in a local review course offered periodically by IPA. Plans are underway to present a review course in the spring of 2007
• Contact your local PACE Ambassador for help in locating study materials. IPA is building an IPA PACE Library maintained by the PACE Ambassador for use by PACE candidates in helping to provide study materials/references. These resources are available to be “checked out” by PACE candidates. Calling all paralegals!! If you have old PACE study manuals, paralegal textbooks, bar charts, flashcards, etc. that you are not using and would like to donate to the IPA PACE Library to become the property of IPA, please contact Debi Neale, PACE Ambassador mailto:debi@tabberthahn.com). Let’s build up the IPA PACE Library to help those paralegals who may need our help!

Places to Find Study Materials

1. National Federation of Paralegal Associations Web site (http://www.paralegals.org/)
2. Your local PACE Ambassador and/or paralegal association
3. Your local West, Delmar, Aspen, or James publishing representative
4. Your local legal publication representative
5. Amazon.com (note publication date of textbook)
6. Your local community college or university bookstore that has a paralegal program
7. Your local law school bookstore
8. National Paralegal Reporter and Legal Assistant Today (for articles on legal research, technology, and procedures; and updates on various areas of law)
9. Previous PACE study groups
10. Barnes & Noble, Borders, or any other local bookstore that has a “law” or “legal”
    section
11. National Association of Legal Assistants Web site (http://www.nala.org/)
12. Your firm’s law library and librarian
13. Any student who has completed a paralegal program
14. Bar charts: http://www.barcharts.com/, priced from $2.95 to $5.95 (can also be found
    at local law school bookstores). Bookstores such as Borders and Barnes and
    Nobles may sell bar charts.
15. Seminars sponsored by your local paralegal association, state and local bar associations, PEI, NBI, Lorman, or other continuing education providers

And………..last, but not least…

“IPA Cares – PACE Candidate Survival Kit”

IPA congratulations you on your exciting decision to sit for PACE! This decision alone is a personal achievement and “IPA Cares.” To demonstrate IPA’s moral and professional support of your decision, IPA has developed its own “IPA Cares: PACE Candidate Survival Kit” specifically designed to enhance your study preparation and test taking. This Survival Kit covers in more detail such matters as how PACE was created and designed, the theory behind the writing of the test questions, how to gain employer support regarding your decision to take PACE, frequently asked questions about the online review course, information on PACE study materials and study references, the benefits of participating in a study group, sample test questions, details regarding setting up the test date, test taking tips, test specifics unique to PACE, and overcoming anxiety about PACE. IPA supports your decision to take PACE! The cost of the IPA Cares: PACE Candidate Survival Kit is free to you, however, it is not free to create. Therefore, it can only be provided to serious candidates after they have made the commitment to take PACE and purchased the PACE Study Manual. If that is you, please contact me so I can get a copy of the PACE Candidate Survival Kit to you. IPA Cares! We will do whatever we can to help you proudly achieve your goal of successful completion of PACE.

By: Debi Neale, R.P.
IPA PACE Ambassador

The third in a series of PACE Ambassador Reports

2007 PACE ONLINE REVIEW COURSE DATES:

January 22, 2007
March 5, 2007
April 16, 2007
June 11, 2007
July 23, 2007
September 10, 2007
October 22, 2007

The cost of the course is $395. The student must purchase the PACE Study Manual before the 7 week class starts. Contact Debi Neale, R.P. at debi@tabberthahn.com or http://www.paralegals.org/ for more information.

Changes to the Federal Rules of Civil Procedure – Evolution or Revolution? (part 3 of 3)

By: Courtney David Mills
IPA Technology Director and Litigation Paralegal at Hoover Hull LLP

This article is the third part of a three (3) article series intended to provide an overview of the changes to the FRCP which went into effect on December 1, 2006. The first article in this series provided a brief background and history of the rule amendments which began more than six (6) years ago. The second article in this series discussed the amendments to rules 16, 26, and 33. This article will discuss the amendments to the remaining rules, 34, 37, and 45. Each article is available on the Technology Section of IPA’s website.

Rule 34(a) & (b): Production of Documents, Electronically Stored Information, and Things and Entry Upon Land for Inspection and other Purposes; Procedure.

Trial Rule 34 would be amended to provide that any party may serve onto any other party a request to produce ESI. The rule would also permit the party making the request to inspect, copy, test or sample electronically stored information stored in any storage medium from which information can be obtained. The responding party is also required to translate, if necessary, any ESI that it produces into a “reasonably usable form.” A very important amendment to this rule also states that the request may specify the “form or forms” in which the ESI is to be produced. The three (3) general forms of production are: native, quasi-native, and converted. The producing party may object to the requested form or forms of production by stating the reason for the objection, i.e., overly burdensome, or cost prohibitive. If an objection is made to the form or forms of production, or if no specific form was requested, then the responding party would be required to state the form or forms that it intends to use for production purposes. If a request does not specify the form or forms for producing ESI, a responding party must produce the information in a form or forms in which it is ordinarily maintained, or in a form that is reasonably usable. A party need not produce the same ESI in more than one form. Although not required under the rules, the parties can stipulate to the production of ESI in more than one form for practical purposes, i.e. excel spreadsheets may be produced in native form so that cell formulas are visible and also produced in a quasi-native format so that the spreadsheets can be bates numbered for use during depositions.

Rule 37(f): Failure to Make Disclosures or Cooperate in Discovery Sanctions; Electronically Stored Information.

This section of Rule 37 is new and states that absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide ESI lost as a result of the routine, good faith operation of an electronic information system. This “safe harbor provision” will rely heavily upon document retention policies, and litigation hold policies to decide what is, or is not “routine, good faith operation.” There are also two important caveats to the safe harbor provision of T.R. 37. First, the safe harbor provision does not apply to information which is lost after a preservation hold is initiated or after litigation is initiated. Second, this rule was also intentionally left limited in its scope with its reference to not being able to impose sanctions “under these rules.” It does not affect other sources of authority to impose sanctions, violations of statutory responsibility or the rules of professional responsibility. The rule is further limited in that a judge is able to decide whether the facts of case fit the “exceptional circumstances” exemption of this rule.

Rule 45 Subpoena; Form; Issuance.

T.R. 45 has several very important provisions that will have a serious impact on both parties and non-parties alike. T.R. 45 has been amended to add that a subpoena shall command each person to whom it is directed to attend and give testimony or to produce and permit inspection, copying, testing, or sampling (the concept of sampling in the EDD context will be discussed in a later article) of among other things, ESI. In addition, a subpoena may specify the form or forms in which ESI is to be produced. Similarly to T.R. 34, if a subpoena does not specify the form or forms for producing ESI, a responding party would be required to produce the ESI in the form or forms that it is ordinarily maintained or in a form or forms that are reasonably usable. T.R. 45 also incorporates the provisions of T.R. 26(b)(2)(B), stating that a party or non-party responding to a subpoena, need not provide ESI from sources that the party identifies as not reasonably accessible due to undue burden or cost. However, motion practice on the issue, i.e. a motion to compel or a motion for a protective order, places the burden on the responding party to show that the information is not reasonably accessible because of undue burden or cost. Even if such a showing is made, the court may order discovery from that party, or non-party, if the requesting party shows good cause, considering the limitations that are set forth in Rule 26(b)(2)(C) (i.e. whether the discovery sought is unreasonable, burden of expense outweighs the benefit, etc.). The court may also specify conditions for production of the requested ESI and in certain situations allow cost shifting. Despite the serious costs to corporations and non-party entities, the courts have thus far been reluctant to allow cost shifting regarding production of ESI and even more hesitant to allow cost-shifting in the context of non-party discovery of ESI.

In summary, T.R. 34 no specifically references production of ESI and allows the requesting party to specify the “form or forms” of production. The addition to T.R. 37 creates a safe harbor protection regarding ESI that is “lost as a result of the routine, good-faith operation of an electronic information system.” T.R. 45 allows subpoenas to request production, inspection, copying, testing or sampling of ESI to parties and non-parties alike.

Whether the amendments to the FRCP live up the hype about revolutionizing the practice of law remains to be seen. However, the simple fact that legal community is discussing these issues, and embracing technology on an entirely new level says something about the direction of the debate. Now that the rules are in effect, it seems clear that paralegals and their attorneys have an undeniable ethical, and professional responsibility to become fluent in technological concepts as they relate to EDD and ESI. The intersection of legal theory and technological concepts is inevitable, and it will be challenging. As we all cope with the changes over the course of the coming year, remember what John F. Kennedy once said, “we choose to go...not because it is easy, but because it is hard, because that goal will serve to measure and organize the best of our energies and skills, because that challenge is one that we are willing to accept, one we are unwilling to postpone, and one which we intend to win.”

IPA is pleased to announce the launch of its legal blog (a.k.a. Blawg)

Indiana Paralegals Association, Inc. (“IPA”) is a professional organization dedicated to the advancement of the paralegal profession. IPA’s Blawg will feature articles, posts and discussions regarding issues that impact the legal professionals. Please visit our primary website for additional information on our organization and details on how to become involved.

Please feel free to email me with any questions or comments.

Courtney David Mills
IPA Technology Director