Wednesday, August 27, 2008

Kennedy and Mighel on Legal Aspects of Collaboration Tools--ILTA Wednesday AM

Title and Session Link and Slides: Legal Aspects of Collaboration Tools (Blogs, Wikis, MashUps, IM, Text Messages, Social Networks and More)


Collaboration technologies help promote information sharing, efficiency, cost reduction and can provide competitive advantages. How does the legal environment deal with the information overload and the security of confidential information escaping the realm of the organization? What aspects of legal information need to be considered to help determine how collaboration tools should be utilized in the legal world (and when they should not)? What policies must be in place to protect the shared information?


Tom Mighell - newly of Fios
Dennis Kennedy - MasterCard Worldwide
Their new collaboration for lawyers blog

My take:

There were two nice moments in Dennis’ and Tom’s presentations on collaboration today and yesterday. At the end of both, they had a “contest” to find the person who had most recently joined legal technology. Two people who had been doing legal tech for less than three months were selected, and received a copy of the collaboration book. That was the spirit of ILTA!

Dennis’ main thrust was that, because collaboration is no longer an option, we need practical approaches to addressing collaboration issues. Free internet tools make it easier to collaborate, perhaps without your knowledge.

Much of Tom & Dennis’ talk was at a fairly abstract level. Although they clearly knew their subject well, they didn’t have as many specific examples or choices of collaborative tools that lawyers might make as I would have liked. Perhaps it would have helped to focus on a particular aspect of collaboration technology, whether it be document collaboration management, wikis, social networking, or another smaller part of this large field, or to focus on collaboration at a particular type of firm, be it solo, small, large, or corporate. Even so, they did not address IP issues, discoverability, or contractual implications of collaborative lawyering.

There was a fair amount of interesting audience participation. For instance, they elicited that no one at the presentation had firm-branded blogs that allow comments. 10% or so of the people present had firm IM systems, or allowed external systems in. Tom mentioned that some firms are using IM-style messaging that lives wholly inside browsers.

Web 2.0 has allowed people to move from team collaboration to community collaboration. One example is Yelp. It is a site for food that lets you pose questions and get answers. Another example is delicious.

LinkedIn recommendations are an area of potential concern.

Google Sites lets you display calendars, financial information, and documents in one place “like Sharepoint.”

What can we do to select good collaboration tools? An example of how not to select a tool is “track changes” in Word. Once that cycle gets started, it’s hard to break out. IM methods should be secure. If you survey what people are using, you’ll be surprised at what you use. One can then start to guide people to the right tools to use.

Litigation support has been functioning as project managers for a long time. The new technology makes it easier to keep track of documents and what people are doing. The goal should be to enhance workflow.

We use email too much now as a collaboration tool. The ultimate goal is to have happier, more connected clients.

Loss of control is one common concern. Transactional lawyers are taught to control the draft. Working in Google docs does not provide that same feeling of control.

Tom said that “firms are starting to move to Google apps.” When I asked him about this after the formal session, he indicated that this statement was based on anecdotal evidence about smaller firms. Some attorneys think that having stuff on other people’s computers is more problematic. The reason seems to be that when your own machines fail and your data center goes down, you can do something about it. Personally, I’d rather have Google’s 500+ security engineers and global reputation worrying about my documents than the 2-3 people the firm can afford. Tom indicated that the Google brand makes people feel more comfortable about security.

Going outside the firewall inevitably raises security issues. Even a Service Level Agreement (SLA) will not protect you if the vendor goes out of business. Another issue with new collaborative tools is the process for allowing downloads of new software.

The two main technology use issues addressed by the ABA have been email and metadata. The ABA issued an opinion that email need not be encrypted to maintain attorney-client privilege. At least one state has found that lawyers should have some knowledge that metadata exists, and that lack of knowledge of that fact is a potential violation of their ethical violation. A Canadian opinion stated that attorneys should know the technologies that they are using to serve their client.

Appropriate balance between risks and benefits.

If the telephone was just rolled out today, some firms would consider it too risky. The risks should be compared with other existing risks. How do risks for wikis compare with those for existing documents? IM vs. email?

You have to go with the culture of the firm to some extent.

Cost of "Free" Collaboration Products

Security, backup, lack of guarantees, and hidden costs all make most “free” tools less than free. What additional hardware will be required?

Collaboration Choices

Firms should have a “basket” of collaborative choices. Some can be high-risk, high-reward options. Having an appropriate policy is important. You want to channel appropriate behaviors. Controls might cover things like blogging, use of particular sites, and assessing what programs are running on the firm systems.

Whatever systems firms use must have authentication and security features. Tom feels that there should be a blogging policy. You wouldn’t want to have unmoderated comments on a firm-branded blog. Taking a public position on a policy could lead to problems with a position taken in a future lawsuit.

The SLA with the collaboration vendor must spell out specific guarantees and what happens in the event of a breach or business failure.

Tom feels that the price of gas is one of the factors driving collaboration and videoconferencing.

Next Steps

Tom and Dennis left us with three recommended action steps to further our firms’ handling of collaboration issues.

  1. assemble whatever firm policies may apply
  2. look at collaboration tools in use (through a survey?)
  3. sketch out the main issues in a potential collaboration tools policy

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