Seeking Compassion for Those That Society Forgets

by Zachary Deubler
DiMuroGinsberg, PC
After an eight-day jury trial in December 2017, the defendant was found guilty on thirty-one counts related to money laundering and wire fraud. He was sentenced to a total of 96 months imprisonment, followed by three years of supervised release.

Shortly after his sentencing in January 2017, but before his incarceration for his underlying conviction, the defendant suffered a grand mal seizure. A subsequent CT scan showed a mass in the right temporal lobe of his brain, and a later MRI showed an infiltrative mass-like lesion suggestive of glioblastoma multiforme (GBM). That same January, the defendant underwent subtotal tumor resection which postponed his incarceration.

A postoperative MRI showed that the bulk of the tumor had been removed, though some residual tumor was still seen in scans. After his surgery and his initial round of radiation therapy, the defendant self-reported to the Bureau of Prisons to begin his sentence. Subsequent tumor pathology conducted in prison showed that mass was consistent with a high-grade (WHO Grade III) GBM.

In July 2018, the prison’s doctors evaluated the defendant and projected that he had less than 18 months to live.

That’s when DiMuroGinsberg began its hard-fought battle to obtain a compassionate release for this dying prisoner. On December 21, 2018, the President signed the First Step Act of 2018 into law. Among other reforms, the First Step Act amended 18 U.S.C. § 3582 to permit defendants to file their own motions for compassionate release when, among other requirements, there are extraordinary and compelling reasons to warrant the reduction of the prisoner’s sentence to time served. Among the accepted “extraordinary and compelling reasons” to justify a reduction in sentence is the diagnosis of a terminal illness, such as brain cancer.

Though a defendant might qualify under the First Step Act for a reduction in sentence, the defendant must nevertheless prove that they are deserving of such a reduction; by no means is the diagnosis of a terminal illness grounds for an automatic reduction in sentence. As was the case here, the government often fights the release of those who seek compassionate release under the new First Step Act.

The type of cancer the our client suffered from tends to present mild symptoms—headaches, mild seizures, and fatigue—until the very end life where the patient can suffer from a sudden and sharp decline in health. This presents its own obstacles in convincing a court that a particular defendant is sick enough to warrant a reduction in their sentence, when at first glance they appear to be fine. Though the defendant’s symptoms in this particular case were initially mild, his health deteriorated while in prison; an MRI in August 2019 showed an enhancing mass, and an MRI in November 2019 showed a new brain mass. Given his disease progression, the prisoner’s oncologist took him off the standard chemotherapy regimen and placed him on different drug regiment in a last-ditch attempt to stave off the cancer—it was still a fight to get the release.

In February 2020, the defendant was found unconscious on his cell floor by his cellmate, suffering from yet another grand-mal seizure. After the defendant was brought to the prison’s urgent care center, he continued to suffer from uncontrollable seizures that did not respond to anti-seizure medication.  When he was partially stabilized the prison’s medical staff transferred him to a local hospital’s ICU where he was subsequently intubated and placed in a medically induced coma surrounded by prison guards and cut off from all non-approved contact.

This sudden progression of his illness was enough to finally secure a reduction in his sentence. The defendant subsequently died several days later in the hospital ICU. It was March 4, 2020.
Even though DiMuroGinsberg is pleased to have secured his release, which enabled his family to see him in his final days, we are reminded of those still suffering in our nation’s prisons who are unable to spend their final moment surrounded by those who care for them.

DiMuroGinsberg received an Outstanding Achievement Award from the Washington Lawyers’ Committee for the work we did on this compassionate release case. This was done pro bono by DimuroGinsberg’s Nina Ginsberg and Zachary Deubler in conjunction with the FAMM (Families Against Mandatory Minimums), Washington Lawyers’ Committee, NACDL Compassionate Release Clearinghouse.

Did Your Contract Anticipate Coronovirus? The Application Of Force Majeure Clauses In Uncertain Times

by Jarrad Wright
DiMuroGinsberg, PC
In recent days, daily life in Northern Virginia, the Washington D.C. metro area, and throughout the United States has been disrupted with school closures and mandates from public health officials. As of now, the economic impact of the Coronavirus (COVID–19) pandemic is unknown. While the length and extent of the economic impact is unknown, companies of all sizes are preparing contingencies. Part of that preparation is analyzing current and future contractual obligations. A key issue for any company or individuals that have contractual obligations is the potential impact of force majeure clauses.

Commonly known as “acts of God” clauses, force majeure clauses in contracts allow a party to not perform a contract obligation due to certain unforeseeable circumstances. These circumstances often include natural disasters and may include terrorism cases. Whether or not pandemics such as COVID-19 are implicated is a question that will be governed by the language of the contract at issue and may be impacted by the various governmental emergency declarations that have been issued in recent days. Force majeure clauses are present in a variety of contracts including leases, insurance agreements, travel insurance, supplier agreements, government contracts, and building contracts.

While it is impossible to know precisely the impact of COVID-19 and whether and how long quarantines may apply, countries such as Italy, France, and Spain have already imposed quarantines overseas. In the United States, Ohio has ordered that bars and restaurants must close indoor dining and New York has ordered movie theaters, gyms, bars and restaurant closures. On March 15, 2020, the Centers for Disease Control and Prevention issued updated guidance recommending that events over fifty people be cancelled. While the guidance does not apply to schools, universities, or businesses, the guidance applies to other gatherings such as weddings, parades, festivals, concerts and sporting events.

While public health is paramount, business impacted by closures or reduced business opportunities are facing questions as to whether they can or have to meet their contractual obligations. Careful analysis of the language of the particular force majeure in each contract at issue is important as force majeure is a contractual creation and the parties’ contract generally govern. In order to understand a provision, the applicable state contracting law that applies should be analyzed carefully.

After the September 11th attacks, business losses resulted in litigation over the applicability of force majeure. Business can expect such issues to once again come to the forefront as the implications of the virus become clear. For example, in the insurance context, the application of business interruption insurance and whether or not a pandemic applies is a source of likely disputes as is insurance disputes over losses incurred because of orders issued by civil authorities when combatting the virus. In the business context, the ability to perform government contracts and service contracts, and whether such non-performance is excused is likely to be litigated.

Accordingly, business should prepare as best they can for the unforeseeable. By staying knowledgeable about the current situation and by carefully reviewing all key insurance agreements or other agreements potentially impacted by the virus, companies and individuals begin to plan on how to deal with the economic and business disruptions. This is even more important for companies and individuals contemplating entering into new agreements.

DiMuroGinsberg has decades of experience in counseling about and litigating business disputes in the Northern Virginia and D.C. metro area and stands ready to answer questions about force majeure and related business disputes that may arise. If you have any questions or an issue you’d like to discuss, please call us at 703-684-4334.

Congress Enacts COVID-19 Paid Leave Entitlements

by Jonathan Mook
DiMuroGinsberg, PC
The coronavirus has wreaked havoc throughout the country, creating significant hardships on employees and employers alike as businesses adjust to the new world in which persons are advised to “shelter in place.” To help alleviate the situation, Congress recently passed the Families First Coronavirus Response Act (“FFCRA”), which creates two new types of paid leave for employees: (1) Expanded Family and Medical Leave and (2) Emergency Paid Sick Leave. To assist employers in paying for the newly created paid leave entitlements, employers will be eligible to receive tax credits in connection with their employee payroll tax filing.

Here’s a summary of what the new leave entitlements provide:

Who Is Eligible?

In general, employees of private sector employers with fewer than 500 employees, and certain public sector employers, are eligible for up to two weeks of fully or partially paid sick leave for COVID-19 related reasons. Employees who have been employed for at least 30 days prior to their leave request may be eligible for up to an additional 10 weeks of partially paid expanded family and medical leave.

What Are the Qualifying Reasons for Leave?

To be a qualifying reason, the leave must be related to the COVID-19 pandemic, and the employee must be unable to work (including unable to telework) for one of the following reasons:

  1. Is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  2. Has been advised by a health care provider to self-quarantine related to COVID-19;
  3. Is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
  4. Is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
  5. Is caring for his or her child whose school or place of care is closed (or child care provider is unavailable) due to COVID-19 related reasons; or
  6. Is experiencing any other substantially-similar condition specified by the U.S. Department of Health and Human Services.
What Are the New Paid Leave Entitlements?

Generally, employers covered under the Act must provide employees:

Up to two weeks (80 hours, or a part-time employee’s two-week equivalent) of paid sick leave based on the higher of the regular rate of pay, or the applicable state or Federal minimum wage, paid at:

  • 100% for qualifying reasons Nos. 1-3 above, up to $511 daily and $5,110 total;
  • 2/3 for qualifying reasons Nos. 4 and 6 above, up to $200 daily and $2,000 total; and
  • Up to 10 weeks more of paid sick leave and expanded family and medical leave paid at 2/3 for qualifying reason No. 5 above, up to $200 daily and $12,000 total.

A part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work over that period.

Tax Credits

Covered employers qualify for dollar-for-dollar reimbursement through tax credits for all qualifying wages paid under the FFCRA. Qualifying wages are those paid to an employee who takes leave under the Act for a qualifying reason, up to the appropriate per diem and aggregate payment caps. Applicable tax credits also apply to amounts paid or incurred to maintain health insurance coverage.

Enforcement

Employers may not discharge, discipline, or otherwise discriminate against any employee who lawfully takes paid sick leave or expanded family and medical leave under the FFCRA. The U.S. Department of Labor (DOL) will investigate and enforce compliance with the FFCRA.

Notice

Employers are required to post a notice informing employees as to their entitlement to both Expanded FMLA and Emergency PSL. For those employees who are teleworking, the notice can be emailed to them or placed on an intranet site and employees notified to view it there. The DOL has issued a poster for employers to use to provide the required notice to their employees.

Additional Information

If you would like to receive a copy of the DOL poster, or have any questions about the new leave requirements, please contact DiMuroGinsberg’s Employment Law Practice Leader, Jonathan R. Mook at jmook@dimuro.com.

Covid-19 and The Rush to Remote Office Work, The Basics.

by Zachary Deubler
DiMuroGinsberg, PC
Offices around the country are shutting their doors and directing staff to work from home as the World Health Organization on Friday confirmed more than 132,000 cases of COVID-19 (COVID-19) worldwide and declared the outbreak a world-wide pandemic. Recently, the Centers for Disease Control and Prevention is urging a nationwide halt to gatherings of more than 50 people for the next eight weeks. With this rush to remote work, small and medium-sized law firms have been put in a tough spot. Firms are faced with difficult questions. Should I close my office? How quickly can we transition to remote work? What policies are (or should be) in place regarding remote office work?

In many instances, asking attorneys to work from home is a relatively easy matter. If an attorney has a laptop, internet connection and phone; remote work is not difficult. However, this assumes there are still support staff at the office fielding calls, submitting filings and other traditional office support. Typically, these individuals, which can be the backbone of a small firm, are only setup for in-office work—i.e. they don’t have a laptop, firm phones, or remote computer access. Moreover, how do you handle your physical front desk and the phones that need to be answered?

Certainly, there is no “one size fits all” approach and each individual law firm must make the choice that feels right for them. Moreover, these decisions are even tougher for small and medium -sized firms without dedicated IT departments to help them develop a plan moving forward. However, for these small and medium-sized firms, moving to a remote office is not as hard as one might think.

Remote Office Policy:

Whether a firm already has a remote office program in place or is looking into options for the future, it’s absolutely vital that firms spell out the details of their program up front. The first step is establishing clear expectations for whatever policy you choose to adopt. There must be clearly defined parameters so that managers, supervisors and workers all understand the rules; such details include expected work hours and which work options will be available—i.e. via phone or video conferencing, etc.

Another minefield that needs attention is the recording of hours for both salaried and hourly employees. Just because an employee is working from home, that does not mean they will not be paid their normal wages. Separate issues may arise between workers with salaried positions and those with hourly positions. Finally, the issue of expenses can be a particularly sensitive subject when it comes to remote work; costs such as personal mobile phone data used in connection with work on an employee’s non-business plan, or the cost of purchasing a computer compatible with the business’s network are all things that must be considered in the development of any policy.

Whether you are drafting a new policy or revising your current policy to conform with current events; it is critically important that you consult an employment law expert while drafting your policy. DiMuroGinsberg has decades of experience with counseling employment law related issues in the Northern Virginia and D.C. metro area and stands ready to answer questions about remote office policy and related business inquires that may arise during this national health crisis.

Remote Computer Access:

The simplest solution for remote file access to your firm’s computer network is a dedicated VPN. Many firms already have such a service in place. However, just because your firm has a VPN already established does not mean you are ready for mass remote connections. Every firm has an internet provider who provides the office with access to the internet. However, like your home internet plan, your office’s internet is “throttled” to the speed that is paid for within the plan. There are two relevant internet speeds, download speeds—how fast can your computer pull something from the internet, and upload speeds—how fast can your computer push information to the internet. For most of us in our daily lives, we are concerned with the former, download speeds—relevant for downloading files, programs, emails and streaming audio and video. However, a productive and reliable VPN connection relies primarily on upload speeds; this is because your computer is pushing files, remote desktop sessions and other information out from your office’s network to your home computer and/or laptop, In most cases, a firm purchases a single internet “hook-up” or pipe from their service provider in which all information flows (both in and out) and the internet speed plan controls how fast (and how much) information is allowed to pass through the pipe at any given time. If your firm does not have sufficient upload speeds, an increased number of VPN remote connections will render remote work horribly slow and unstable. As such, and as more firms debate remote offices, it is important that firms consult with their internet service provider now to ensure they have sufficient upload speeds to enable multiple simultaneous outside connections for remote work.

Though VPNs are a fantastic service, many smaller firms have not invested in the network hardware to make them possible; and if faced with the sudden decision about whether to close, managers might not have time to hire a vender to install the necessary hardware and software to make the VPN work. Not to worry, there are currently services available that offer many of the same benefits of a VPN—i.e. remote access to office networks—without the need to purchase or set-up additional hardware. Many of these services can be set-up in a matter of minutes and offer plans that range from month to month, to yearly. One of the best-known venders in this area is GoToMyPC1, which allows users to access their office computer’s desktop though a secure connection and can work on both Macs and PCs.

Phone Services

In addition to having remote access to work files, firms still must be able to answer their incoming calls even if there is no front desk receptionist. Some businesses have sophisticated phone systems, such as Voice over Internet Protocol (“VoIP” Phones), which allow incoming calls to be automatically redirected to cellphones and home landlines. However, many small firms still have traditional landline-based phone systems without advanced features that allow for automatic call routing, hence the need for the phone answering service. There is a myriad of phone answering services available with a range of plans and features available to suit every firm’s needs. The greatest benefit of these services is that you can keep your firm’s current phone numbers. Simply have your phone system forward all calls to the answering service provider and allow your vender to handle the rest. These phone services can take messages, route calls to cell and home phones and make appointments—anything an in-person front desk receptionist currently does. Many service providers offer monthly and custom plans, so you can engage their services in a cost-effective manner.

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Conclusion

While there is a lot of uncertainty surrounding COVID-19 and its effects on our national and local economies, DiMuroGinsberg stands willing and able to handle the legal concerns of our clients and the community at large during this difficult time. If you have questions regarding employment issues surrounding your business decision to work remote, or if you have general inquiries regarding other legal matters reach out to us at (703) 684-4333 and we would be happy to assist you.

The Coronavirus and DiMuroGinsberg

DiMuroGinsberg is taking the Coronavirus seriously, while trying to continue business as seamlessly as possible. For that reason, we have instituted the following measures to ensure the safety of our clients, attorneys, colleagues, and friends:

  • If you have an appointment at our offices and are not feeling well, please let us know and we will change it to another day or to a phone or video conference—whichever is most convenient for you.
  • If you simply would rather not care to go out for a meeting, again we’re happy to set up a conference call or a video conference for you.
  • Our staff is dedicated to keeping our offices clean. We wipe down surfaces, door knobs and handles, etc. daily to ensure the safety of our staff and clients.

We at DiMuroGinsberg are all joining together to help our clients, employees, colleagues, and friends stay free of the Coronavirus. If you have any questions or concerns about these efforts, please contact our Director of Operations, Michele Kraftschik at mkraftschik@dimuro.com.

If you have any questions about dealing with the impact of the Coronavirus on your business operations or employees, you should contact your attorney or DiMuroGinsberg’s Jonathan Mook at jmook@dimuro.com. Also, check out our article entitled, “The Coronavirus –How Do We Manage It?” which can be found on our website.

The Coronavirus —How Do We Manage It?

by Stephanie West
DiMuroGinsberg, PC

Are you one of those people that washes your hands every chance you get in order to ward off Coronavirus? And, are you well-stocked at home and ready to be quarantined for a month if necessary?

OR

Are you someone who thinks this Coronavirus scare is a bunch of brouhaha about nothing?

Whichever type of person you are, Coronavirus (COVID-19) will Impact you whether you are freaked out or not. In many stores, medicines, bleach and even popular canned goods can’t be had. Travel is affected. Conferences are being cancelled right and left. Offices and schools are closing…new rules everywhere you look and they change day by day. (Today, it was the NBA, March Madness and Broadway!)

What is COVID-19 anyway? It is believed that COVID-19 is a virus that was originally contracted from an animal and then transmitted from human to human. Its symptoms range from mild to severe respiratory symptoms, fever, cough, shortness of breath, and breathing difficulties. In severe cases, the virus has led to pneumonia and kidney failure and has resulted in an increasing number of deaths. The Center for Disease Control (CDC) believes at this time, that symptoms may appear within two to fourteen days after exposure. However, some infected individuals have shown little to no symptoms at all.

What is there to be done in the workplace? What if we get quarantined? As business owners, we must find a way not only to have our employees work from home (the easy part for some) but to have the infrastructure work off-site as well. Employees are worried and want to know we have a plan. So, show them you do.

Following are some guidelines and suggestions from the CDC:

  • Actively encourage sick employees to stay home:
    • Employees who have symptoms of acute respiratory illness should stay home and not come back to work until they are free of fever (100.4 or greater using a thermometer) and any other symptoms for at least 24 hours, without the use of fever-reducing or other symptom-altering medicines, like cough suppressants.
    • Your sick leave policies should be flexible and consistent with public health guidance and make sure that your employees are aware of them.
    • Companies that provide contract employees to your firm should be both aware of your policies and follow them.
    • Don’t require a note from a healthcare provider for an employee to return to work during this time. Health providers are too busy to provide these notes and they might not be able to provide them in a timely fashion.
    • Maintain flexible policies that permit employees to stay home to care for a sick family member. Be aware that this might be a more frequent occurrence during these times.
  • Separate sick employees
    • The CDC recommends that employees who appear to have acute respiratory illness symptoms, like a cough, shortness of breath, etc. upon arrival to work or become sick during the day, should be separated from other employees and should be sent home immediately.
    • Sick employees should cover their noses and mouths with a tissue when coughing or sneezing (or use an elbow or shoulder if no tissue is readily available).
  • Respiratory etiquette and hand hygiene by all employees:
    • Provide tissues and no touch disposal receptacles for your employees.
    • Provide soap and water and alcohol-base hand rubs in the workplace. Ensure that adequate supplies are maintained. Place hand rubs in multiple locations or in conference rooms to encourage hand hygiene.
    • Instruct employees to clean their hands often with an alcohol-based hand sanitizer that contains at least 60 – 95% alcohol, or wash their hands with soap and water for at least 20 seconds.
  • Perform routine environmental cleaning:
    • Routinely clean all frequently touched surfaces in the workplace, such as workstations, countertops, and doorknobs.
    • No addition disinfection is recommended at this time.
    • Provide disposable wipes so that commonly used surfaces (doorknobs, keyboards, desks, remotes) can be wiped before each use.
  • Advise employees before traveling to take certain steps:
    • Check the CDC’s Traveler’s Health Notices (https://www.cdc.gov/coronavirus/2019-ncov/travelers/index.html)for the latest guidance and recommendations for each country to which you will travel.
    • Advise employees to check themselves for symptoms of acute respiratory illness before starting travel and notify their supervisor and stay home if they are sick.
    • Ensure employees who become sick while traveling or on temporary assignment understand that they should notify their supervisor and should promptly call a healthcare provider for advice if needed.
    • If outside the US, sick employees should follow your company’s policy for obtaining medical care or consult a healthcare provide or overseas medical assistance company to assist them with finding an appropriate healthcare provider in that country. A US consular officer can help locate healthcare services. However, US embassies, consulates, and military facilities do not have the legal authority, capability, and resources to evacuate or give medicines, vaccines, or medical care to private US citizens overseas.
  • Additional Measures in Response to Currently Occurring Sporadic Importations of the COVID-19:
    • Employees who are well but who have a sick family member at home with COVID-19, should notify their supervisor and refer to CDC guidance for how to conduct a risk assessment of their potential exposure.
    • If an employee is confirmed to have COVID-19, employers should inform fellow employees of the possible exposure to COVID-19 in the workplaces but maintain confidentiality as to the identity of the person, as required by the Americans with Disabilities Act (ADA). Employees exposed to a co-worker with confirmed COVID-19 should refer to CDC guidance for how to conduct a risk assessment of their potential exposure.

Speaking of the ADA, what are the special requirements under the ADA during a pandemic? Even though seemingly innocent questions asked about an employee’s health for protection purposes might seem alright to you, it’s not alright according to the ADA. Following are some things to watch out for:

  • Employees with disabilities should be included in planning discussions and employer communications concerning pandemic preparedness. Those communications should be accessible to disabled employees.
  • You may not ask any disability-related questions specifically, when figuring which employees might not be available during a pandemic. You may ask questions that are not disability-related such as: who may have issues with transportation or child-care or simple yes or no answers where a detailed description of which item is the problem is not stated specifically.

The basic rule here is to treat the disabled person the same as you would treat any other employee, unless they ask for a special accommodation. Then you must assess whether the accommodation is reasonable in the situation. For example, if the employee asks to work at home, the job can be done at home, and the workplace could be a hazard to them, that is a reasonable accommodation to the employee.

As this pandemic ebbs and flows, winds and grows and hopefully dies out soon, be prepared with a plan that works for your company. Use the CDC as a guide. Clearly, these suggested steps won’t work for all companies. Get a team together (if you haven’t already done so) and make decisions about how you will handle situations as they arise.

At DiMuroGinsberg, we stand ready to provide advice and assistance should it prove necessary as you make steps to combat the Coronavirus We can help you make sure your work place is a safe environment within which your employees will be working during these uncertain times. Please feel free to contact one of our attorneys about matters that may arise.

Good luck and keep washing your hands!

When Does an Order Qualify as a Final Order? How Does This Affect Bankruptcies?

By Jarrad Wright

Failing to notice an appeal in time is a classic pitfall that has led to numerous malpractice claims. One key problem plaguing counsel is determining whether or not an order qualifies as a final order for appellate purposes. As a general rule, a trial court decision becomes final for appellate purposes only after the entire case is finished and when there is nothing more for the trial court to do but execute a judgment. While simple in concept, practical application of this general rule can become complicated, especially when there are different types of claims and parties involved. Indeed, in the bankruptcy context, the United States Supreme Court’s recent decision in Ritzen Group, Inc. v. Jackson Masonry, LLC held that the finality requirement for filing an appeal requires creditors to file an appeal of denials of motions to lift the automatic stay within fourteen days, which is often long before the value of the underlying claim would be decided let alone a bankruptcy would be concluded. This understanding of finality could initially seem counterintuitive but, as Justice Ginsburg explained when writing for a unanimous Court, the “ordinary understanding of “final decision” is not attuned to the distinctive character of bankruptcy litigation.”

When a company or individual files for bankruptcy an automatic stay stops all pending and future civil litigation and attempts by creditors to collect on debts. Creditors wishing to proceed with these efforts outside of bankruptcy court are required to file a motion to lift the automatic stay with the bankruptcy court. Using a variety of factors, the bankruptcy court then decides whether to allow the creditor to proceed independently in another forum or whether the matter should be decided as part of the overall bankruptcy case. In the Ritzen case, the creditor waited until after his claim had been adjudicated and the plan of reorganization had been confirmed, to appeal the denial of the motion to lift the automatic stay. However, the Supreme Court held that “the adjudication of a motion for relief from the automatic stay forms a discrete procedural unit within the embracive bankruptcy case.” The upshot of the Ritzen case is that parties involved in a lift stay proceeding must be ready to file an appeal within the fourteen-day period of the bankruptcy court’s determination.

The Court’s reasoning is that moving to lift the automatic stay is a separate issue from the determination of the creditors’ claim itself and the Court explained that “[i]mmediate appeal, if successful, will permit creditors to establish their rights expeditiously outside the bankruptcy process, affecting the relief sought and awarded later in the bankruptcy case.” Moreover, the Court explained that it does not matter whether the bankruptcy court’s decision on lifting the stay implicates other issues to be decided later in the bankruptcy case as long as it “conclusively resolves the movant’s entitlement to the requested relief.” Therefore, in the narrow context of a motion to lift the automatic stay, a bankruptcy court’s determination to grant or deny lifting the automatic stay is a “final” order in which a litigator should quickly move to notice an appeal in order to avoid waiving such an appeal.

However, litigators should be wary of applying Ritzen outside of this narrow context. Routinely in non-bankruptcy cases a pre-judgment decision can have a significant impact on the course of litigation and can affect the relief sought and to be awarded later, yet the decision may not be final for purposes of appeal. In other instances such as a decision dismissing a party for lack of personal jurisdiction may be appealable immediately. Ultimately, careful consideration of the circumstances and type of order involved remains necessary to avoid the classic pitfall.

eDiscovery and How to Best Use it

by Bethany Coan, eDiscovery Project Manager
eDiscovery (electronic discovery…I know you knew that) is here to stay! With thousands of emails and documents connected to individual parties, the amount of discovery law firms are receiving is not getting any smaller. Communications, containing incredibly important information for review, have expanded from simple emails, apps like “What’s App”, Facebook Messenger and Slack just to name a few. New online programs are available to make these communications easier for all, but knowing the most efficient and safest ways to use eDiscovery or any form of communication you choose, is of the utmost importance to your success.

Here are some of the most crucial tips to effectively working with eDiscovery

  1. Create a Timeline! Whether you are using online programs or reviewing your documents the old-fashioned way, creating a timeline using all of your documents will allow you to see exactly how all of the emails and their attachments fit together. The timeline will make it easier to find emails and events by certain dates. A timeline can also help you sort by sender, recipient, date, subject, etc. so you can track various points of information which is helpful to identifying key documents. Some eDiscovery review platforms offer this on their site, but you can create your own timeline using Excel (and save it to a central location available to all team members working on the case). I have found this incredibly helpful for finding hot documents and their connected email chain. It’s a great way to see everything laid out in a visual way instead of endless pages of emails. If the documents have been Bates-numbered, it is ideal to add the page numbers to the timeline for additional reference.
  2. Use Tags! This is the best way to identify key documents that you want to return to at a later point on any eDiscovery platform. The tags can be highly nuanced or much broader, but, either way, it can shave off valuable time searching for documents previously identified. Once the tags have been added, you can review all the documents that have been identified by these tags at one time. The online reviewing platforms will allow you to add as many tags as you would like. I have used tags like “Hot Docs,” “For RFAs,” “Exhibit [X],” and “Deposition” to identify important documents that are necessary for the many stages leading up to trial. The tagged names (i.e. Confidential, Attorneys Eyes Only) can be stamped at the bottom of the chosen pages once you are ready to download the production.
  3. Don’t Remove Metadata! If at all possible, it’s always better to upload an email in its native format rather than a PDF version of the same email. These eDiscovery programs are capable of performing searches based on the time/date an email was sent, who it was sent to, a specific phrase, etc., but once the metadata is removed, it is a flat image and it can be much harder to find the desired email. When receiving emails and documents from clients for discovery, strongly encourage them to give it to you in a native format to keep from losing that valuable and pertinent information. It will make the search process so much easier and faster. The eDiscovery platforms will detect the words in the PDF emails, but it is not nearly as accurate.
  4. Be Specific with Your Search Terms! The key to any good search is using the right search terms. Search terms that are too vague will produce an overwhelming number of documents to sift through. Utilizing Boolean Terms to combine keywords with operators and modifiers such as “AND”, “OR”, and “NOT” will create a richer context among the search terms you explore. The more specific you get, the smaller number of hits that will be returned. Include as much relevant information as you possibly can. eDiscovery platforms offer advanced searches for date ranges, email addresses, lists of names or numbers, etc. You can even designate words to be highlighted automatically when found from page-to-page.

To sum up: be organized, think ahead, be specific and let the programs work for you. You almost have to think like a program thinks as you use the program. Don’t be intimidated. eDiscovery is here and it’s the now and the future of how we will work to bring the best to our clients. Get on the bus.

The Basic Cyber Tool Box for Lawyers

By Zachary Deubler

It’s hard not to have your eyes glaze over when someone mentions the word “technology” and the legal profession in the same sentence. When technology experts using phrases like VPN, Block-chain, encryption, the Cloud, Artificial Intelligence, Data Recovery, lawyers tend to tune out and understandably so. However, since February of 2019, thirty-five states have expressly included knowledge of technology in the official comments for their Rules of Professional Conduct.1 Most states have adopted language similar to comment 8 of the ABA Model Rule 1.1, which states that “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”2 Moreover, in 2012, Model Rule 1.6 was amended to include the following section “A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”3 The amalgamation of these two rules require that lawyers keep up-to-date, to a reasonable degree, with changes in technology while at the same time making reasonable efforts to prevent disclosure of client information. All of this to say, a lawyer needs to have a basic understanding of how Computers and IT play a role in their practice. 4

While we do not pretend that this article addresses all of the complex areas of technology in the practice of law, we do highlight some key areas to consider while you move into the new year. We encourage you to think about the implementation of some of the basics like VPN, Cloud File Sharing, and Data Recovery.

VPN:

Though Virtual Private Network (“VPN”) technology has been out for quite some time, there has been a resurgence of the technology in the news as of late. There are two different uses for VPN technology. The first is a VPN server, and the second is a VPN service. Though they are very similar because they use the backbone technology, their uses are totally different. A VPN server is a business solution for accessing your office files on the road through a secure connection. A VPN server is nothing more than a software program that runs on your office PC 24 hours a day, waiting for you (the VPN client) to connect to it remotely. Once the connection is made to the VPN server, you will have access to your office PC files and other resources in the office – just as if you were physically sitting in front of your computer at your physical office. VPN servers can even be used to get your iPhone, iPads, and Android phones onto your work network and access your client files. Depending on how your VPN server is set-up, it will also include all the benefits of a VPN service, discussed below. A VPN server is not simple to set-up and will require an IT contractor to come for installation and maintenance.

A VPN service is not used for accessing files, but instead, is used to protect your online activity – banking, e-mailing, and other sensitive tasks – from being intercepted and observed. A VPN service allows you to conduct sensitive online activities on public networks – such as coffee shops, trains, hotels, courts. Normally, you would avoid these public networks when working, but with a VPN service, you can conduct your sensitive transactions online knowing your internet traffic is encrypted. To use a VPN in this manner requires that you pay for a VPN service, which can cost anywhere from $35 a year to $10 a month. Though not as fully functional as a VPN server, the VPN service is a DIY project and can easily be accomplished on your own without having to hire outside help.

Cloud File Sharing:

Clients have come to expect an easy way to collaborate with their lawyers. This is due in large part because the internet has gone mainstream and enabled simplicity of services – from banking to ordering a pizza. This has conditioned consumers to expect real-time communication and collaboration. To meet this demand, the vast majority of lawyers use unencrypted e-mail as the primary means of collaboration – e-mail is the default file sharing service – with little regard to the security of the documents contained within that e-mail.5 As discussed above, lawyers have an ethical obligation to ensure that their client’s confidential information remains secure, which includes the way we send and receive documents.

First, assume the worst. Law firms may face different risks depending on the practice area, but every firm should assume that someone is trying to access your files and recognize that though some file-sharing providers can get close, there isn’t a service or company available that can ensure data remains 100 percent confidential.6 Second, educate your clients and staff that “smart” (and not easy) collaboration is the goal of a legal practice. This education can come in the form of retainer agreements and an upfront conversation at the beginning of the matter regarding the way the firm shares and receives documents. Third, and perhaps hardest of all, is stick to your plan. It will be hard to scrap the plan when the first client (or staff member) complains that they have to enter a password every time they receive a document, or that the attachment won’t open on their phone. There are a number of venders to choose from, but there are several key things to keep in mind when picking a vendor: (1) use [a] reliable company or product to feel secure with confidentiality and ease of use; (2) know from the beginning that the product you are using is in your control and is safe for the firm and the firm’s clients; and (3) understand the geographic location of the file sharing services systems, their security, and what they have the ability to do with the files that are shared via their system.7

Data Recovery:

Imagine this: An employee at a firm opens an email attachment and, unbeknownst to them, there’s a program called Cyberlocker hidden in the e-mail, searches their computer and all of the computers on their network for MS Office documents, PDF files, JPG files, and a variety of other types of files. Once this Cyberlocker finds all the files, it encrypts (locks) them with a key only known to the hacker. Now, no one can open any of the firm’s files, move/copy them, or do anything with them without a key to unlock the files. That key is being held for ransom and their data is in someone else’s control. Depending on if the firm was prepared with data backup, they could be back up and running within the same day; or they could be down for days/weeks with massive amount of work product destroyed. In fact, “the FBI has reported that law firms are often viewed as “one-stop shops” for attackers (with information on multiple clients) and it has seen hundreds of law firms being increasingly targeted by hackers.”8

The mantra of all firms, as it relates to security breaches, should be “when, and not if.” Indeed, in 2012 then-FBI director Mueller said “I am convinced that there are only two types of companies: those that have been hacked and those that will be. And even they are converging into one category: companies that have been hacked and will be hacked again.”9 In 2014, the ABA adopted a resolution on cybersecurity that “encourages all private and public sector organizations to develop, implement, and maintain an appropriate cybersecurity program that complies with applicable ethical and legal obligations. A program that is tailored to the nature and scope of the organization and the data and systems to be protected. The organizations covered by it include law firms.”10

As a first step in realizing that goal, all firms should have an individual(s) designated to be responsible for developing and coordinating a security policy. For those starting out, a good basic rule is to have at minimum two back-up locations: one back-up in your office (a local back-up drive) and the second is off-site in a secure cloud (just in case the building burns down, or a power surge damages your in office computer).

Conclusion:

Follow the advice that we often give our clients, “recognize when you’re out of your element and get professional help and guidance.” We are primarily lawyers, and though we enjoy the immense benefits of the digital world that we practice in, we did not go to school to get a degree in cybersecurity or computer coding. Making sure we protect ourselves and our clients will often require that we seek the advice of the experts and work with trained professionals to ensure that we are conducting ourselves in the most efficient, and secure, manner possible. While we don’t pretend to be experts ourselves, we think that it’s incumbent upon our profession to help each other make better and smarter moves as we all progress in this ever-increasing digital universe.

 

1 Tech Competence, https://www.lawsitesblog.com/tech-competence (last visited 12/9/19).
2 ABA Model Rule 1.1 Competence-Comment, https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_1_competence/comment_on_rule_1_1/ (last visited 12/9/19).
3 ABA Model Rule 1.1 Competence-Comment, https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_6_confidentiality_of_information/ (last visited 12/9/19).
4See ABA Opinion 477R—Securing Communication of Protected Client Information, https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba_formal_opinion_477.authcheckdam.pdf (last visited 12/9/19).
5 File-Sharing in the Legal Industry, LexisNexis Survey (2014) https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=11&ved=2ahUKEwjG_ImDgqnmAhVlTd8KHRsiBtkQFjAKegQIChAC&url=https%3A%2F%2Fwww.lexisnexis.com%2F__data%2Fassets%2Fpdf_file%2F0017%2F46061%2Fdocument-security-report.pdf&usg=AOvVaw00yr_xnLqoMSVqzjiR28dG (last visited 12/9/19).
6 See What The Dropbox Hack Means for Lawyers, Above the Law (2016) https://abovethelaw.com/2016/09/what-the-dropbox-hack-means-for-lawyers/?rf=1 (last visited 12/9/19).
7 Law Firm File Sharing: Attorneys in Their Own Words, ABA, (2017) https://www.americanbar.org/groups/gpsolo/publications/gpsolo_ereport/2014/august_2014/law_firm_file_sharing_attorneys_in_their_own_words/ (last visited 12/9/2019). See also 2018 Cloud Computing, ABA, (2019) https://www.americanbar.org/groups/law_practice/publications/techreport/ABATECHREPORT2018/2018Cloud/ (last visited 12/9/19).
8 2018 Cybersecurity, ABA (2019) https://www.americanbar.org/groups/law_practice/publications/techreport/ABATECHREPORT2018/2018Cybersecurity/ (last visited 12/9/19).
9 Id.
10 Id.