Servers, Networks, Filtering, Application Software

Cloud computing is used for, among other things, extra storage space and to provide network or system backups. Consider Google Documents, for example.  A lawyer can upload or create documents to be stored there – and the lawyer can then access those documents from anywhere. And if you are traveling, this could be incredibly convenient – no need to lug a computer with you or boxes of documents.

But cloud computing does not come without its concerns. The data you create for your clients is being housed on servers owned by third parties. And even though the service agreement should provide that you own the data – what about the metadata created on the server by the server? There could be data modification logs, and this could clearly be relevant in litigation. Nevada and New Jersey already have issued ethics opinions discussing the use of third-party vendors to store client files and documents in electronic form. [See “Up in the Air: Considering Cloud Computing” by David Elkanich, The Ethical Quandary, May 8, 2009,]

An attorney may not allow an office-sharing counsel to join the attorney´s computer network without blocking access to the attorney´s client files, but the result would be different if the office sharer were "of counsel" to the attorney´s firm. [See “Informal Advisory Opinion Number 980030 - Rule Number: 1.6,” The Missouri Bar, 2006,]

Twenty-one states have Internet filtering laws that apply to public schools or libraries. The majority of these states simply require school boards or public libraries to adopt Internet use policies to prevent minors from gaining access to sexually explicit, obscene or harmful materials. However, some states also require publicly funded institutions to install filtering software on library public access terminals or school computers. [See Children and the Internet: Laws Relating to Filtering, Blocking and Usage Policies in Schools and Libraries,” National Conference of State Legislatures, January 13, 2011]
Among the application software most important to a law office, choosing a word-processing software package is very important because lawyers tend to stay with the first system they learn. Using a database, a lawyer can maintain a list of contacts that will serve as a resource for checking conflicts of interest. The ABA’s Legal Technology Resource Center does not specifically recommend or evaluate law office software, but it can provide general legal technology assistance to law firms of all sizes.

E. Personal Digital Assistants, Compact Discs, Thumb Drives

Many corporate employees have company-issued Personal Digital Assistants (PDAs) or smartphones that may contain discoverable material. This can raise issues for collection, as the tools for acquiring data from such devices are difficult to find.

What are the applicable rules when an attorney inadvertently receives confidential information contained in Compact Discs (CDs)?

In a recent California case, a plaintiff originally produced in excess of 200,000 documents. When the court subsequently ordered further production, the plaintiff produced additional items, including compact discs containing "227 attorney-client privileged emails." The plaintiff explained it had not completed a thorough internal review of the material, being "unable to view the files because of the substantial size of the folders containing e-mails in .pdf form that needed to be viewed through ... [a] Microsoft Outlook application program." (Infor Global Solutions (Michigan) Inc. v. St. Paul Fire & Marine Ins. Co., 2009 WL 2390174 at * 1 (N.D. Cal. 2009).) 

Notably, the defendant realized that privileged documents had been produced, ceased reviewing the documents, and notified the plaintiff. The plaintiff then sought a protective order prohibiting use of the privileged materials, while the defendant opposed it. The magistrate judge invoked rule 502, ruled for the defendant, and ordered the plaintiff to produce the privileged documents. The court found that the plaintiff had not taken reasonable steps to prevent disclosure, specifically citing the plaintiff's failure to seek an extension of time upon experiencing trouble in opening emails stored on the compact disc. 

Furthermore, the plaintiff had not entered into a non-waiver agreement with the defendant; nor did the plaintiff notify the defendant of the difficulties encountered in attempting to review material before its disclosure. Finally, the plaintiff made no effort to open the emails on the disc to review their content after producing the disc and before being notified by the defendant. The court recognized that loss of the attorney-client privilege in a high-stakes, hard-fought litigation is a severe consequence that can lead to serious prejudice, and acknowledged that to protect the privilege, the "law does not require strenuous or Herculean efforts, only reasonable efforts." Nonetheless, using a "holistic reasonable analysis," the court found that the plaintiff had waived the privilege (Infor Global Solutions, 2009 WL 2390174 at *2).

As computer memory has shrunk in both size and price, ultra-portable hard drives called “thumb drives” (or USB Flash Drives) have become increasingly popular. The devices, named for their small size, are solid-state hard drives composed of a USB plug and a small memory chip with capacities ranging up as high as 32GB. They're often incorporated into key chains and jewelry and are inexpensive enough that some companies use them as promotional giveaways. Their blend of portability, price, and capacity makes them ideal tools for lawyers who often find themselves needing to do work away from their desk and their primary computer. Below are a few of the ways you can put a thumb drive to use in your practice.

Storing and Sharing Files

The simplest and most common use for thumb drives is simply as a storage device. Follow the manufacturer's directions (usually nothing more than plugging the thumb drive into an open USB port) and your thumb drive will appear as a hard drive on your computer. You can save files to the thumb drive just as you would a hard drive, floppy disc, or CD-R. Use it to save the key contacts from your address book, blank copies of forms you use often, cases you've been meaning to read – anything that you might want to have access to when you're away from your computer.

Portable Applications

Perhaps the most powerful use for a thumb drive is loading it with a suite of useful applications so that you will have access to the software you need no matter whose computer you're using. Many software providers offer special "portable" versions of their applications that take up less space and are optimized to run from a thumb drive. This software includes everything from web browsers to office productivity suites to games – much of it free. is the most popular resource for such software. In addition to listing individual portable applications, PortableApps also offers a pre-assembled suite of software including Firefox and OpenOffice.

Take Your Set-up With You

f you do not feel like loading applications onto your thumb drive, there is another option: some software will allow you to store information from your commonly used applications on your thumb drive – such as your e-mail from Outlook or your bookmarks from Internet Explorer – and automatically access it when you insert it into another PC. The software does not leave behind any traces of your personal data on the PC you use, and it will automatically sync the data if you plug it back into your own personal computer. Check out the DataTraveler family of USB Flash Drives on for more information and visit to learn about software focused on letting you take your passwords and login information with you.

Speed Up Vista

If you're using Microsoft's Windows Vista, a thumb drive could help boost your computer's performance. One of Vista's features – ReadyBoost – lets you use a thumb drive as an additional memory cache for the operating system. Because flash memory can be accessed far more quickly than the data on your hard drive, this feature will allow cached programs to run more quickly.

Thumb Drive Security

As with any other form of portable media, there are certain security risks associated with thumb drives. They're small enough to be easily misplaced and easy enough to use that most anyone who picks up an unprotected drive will be able to view the contents. The easiest way to protect yourself and your clients is to avoid putting highly sensitive information on the drive and to make sure you know where it is at all times. You can take your thumb drive's security a step further by using software encryption to lock your data behind a password. Visit to see their “Simple Guide to Securing USB Memory Sticks” or visit for its guide to “On-the-fly Encryption for Your USB Flash Drive.” Some thumb drives are sold with security software pre-installed, such as the JumpDrive or the DataTraveler.