This is my last From the Chair column since my year as Chair of the Committee on Legal Technology will end with the June 2008 Annual Meeting of the ISBA. This is my second time as Chair of CoLT and I enjoyed the experience as much as I did in 1996-97. I would like to take this opportunity to thank all of the hardworking members of CoLT and I know my successor will continue to push my primary goal of working to establish a uniform system for electronic filing in the state courts. I started working on this E-Filing over 10 years ago and it seems we are no closer than when I first began working in this technological arena. The problem has never been the technology; that has always been available, and today it is even better. The problem has always been and remains the politics. There are 102 counties in Illinois with 102 clerks of the circuit courts. If each clerk is allowed to set up an E-Filing system we could have 102 different systems which will create an electronic Tower of Babel. The stated goal of the ISBA has been (1) the ability to file, view, and retrieve pleadings electronically (2) using a system that is platform independent, allowing access the system from a Windows, Macintosh, Unix or Linux computer and (3) the cost of filing pleadings electronically not exceed the cost of filing across the counter in the clerk’s office. At this point in time, E-Filing is under the purview of the Supreme Court. The ISBA wants to work with the Court on E-Filing and hopefully I will someday, before I retire, actually be able to file a divorce case while sitting in my office. In the meantime I will continue to walk over to the court and hand my papers over the counter. While this is my last From the Chair column, I will endeavor to continue to contribute to this newsletter and the CoLT. After all, someone needs to continue to tell the Windows users what they are missing by not switching to Macs. By the way, still enjoying Leopard (Mac OS 10.5), not crashed yet. How’s Vista doing? Have you switched to Vista yet or back from Vista to XP?
Technology and the Law. When love goes bad, rely on technology to see what your wife if doing. As a divorce attorney as well as a techno-geek, I was very interested in a recent case coming out of the US District Court for the Eastern District of Michigan involving a husband’s use of key logger software (a program designed to record every keystroke on a computer and store it as a text file). The parties had been married for almost 30 years and had three children when the husband became suspicious of his wife’s activities and he installed key logger software on both home computers. With this software he was able to learn his wife’s passwords for her e-mail account and her private messages on a Web site. The husband used these passwords to access her e-mail and messages where he learned of her sexual activities. The husband then took the parties’ three children and moved out of the marital residence. He gave these e-mails and messages to his divorce attorney and filed for divorce. A custody dispute then ensued and the husband’s attorney used the wife’s e-mails to impeach her regarding her sobriety. Eventually, the wife lost custody and she was granted supervised visitation.
After the divorce case was concluded, the wife sued her ex-husband, his attorney and her own attorney. The husband and his attorney were sued for violation of (1) 18 U.S.C. §2511—The Wiretap Act; (2) 18 U.S.C. §2701—Stored Communications Act against the husband; (3) 18 U.S.C. §2512—Wiretap Act against the husband, his attorney and a John Doe who supplied the key logger software; (4) MCL § 750.539a et seq. and MCL §750.540—Michigan’s Eavesdropping statutes against the husband, his attorney and John Doe; (5) invasion of privacy against the husband and his attorney; (intentional infliction of emotional distress against all defendants and (7) legal malpractice against the wife’s own attorney.
The decision comes up on motions for summary judgment filed by all defendants. The wife’s attorney’s motion for summary judgment was granted on the basis of lack of federal subject matter jurisdiction, i.e., the case needed to be filed in state court. As to the other causes of action, the case does raise technology issues of significant interest.
18 U.S.C. §2511—The Wiretap Act. The wife charged her husband and his attorney with violation of the Wiretap Act when they obtained her e-mails and messages using the password retrieved from the key logger software. Section 2511 (1)(a)—a person violates this Act if he or she “intentionally intercepts…any…electronic communication” (c) “intentionally discloses…any…electronic communication…knowing…the information was obtained through the interception of a …electronic communication in violation of [the Act]” and (d) intentionally uses…any…electronic communication” (c) “intentionally discloses…any…electronic communication…knowing…the information was obtained through the interception of a …electronic communication in violation of [the Act]” The defendants successfully argued that there was no “interception” as defined in the Wiretap Act. The court agreed and reasoned that the key logger software only allowed the husband to learn his wife’s passwords, which he then used to access her e-mail. Since the husband did not obtain the e-mails and messages contemporaneously with the transmission, the Wiretap Act was not applicable.
18 U.S.C. §2701—Stored Communications Act. The wife alleged her husband violated the Stored Communications Act when he accessed her e-mails. The Stored Communications Act provided that a person violated the Act if that person (a)(1) “intentionally accesses without authorization a facility through which an electronic communication service is provided…and thereby obtains…a…electronic communications while it is in electronic storage in such system…” The husband accessed the wife’s e-mail on her Internet service provider’s (ISP) server and not from the messages stored on her home computer. The husband argued that because the wife had already accessed her e-mails, the Stored Communications Act does not apply. The court found that the messages on the ISP’s server were stored for purposes of backup protection (since the wife had already accessed those messages) but that does not take it out of the provisions of the Stored Communications Act and therefore the husband’s motion for summary judgment on this count was denied. The court went on to note that the Stored Communications Act would not have applied to messages stored on the home computer because the Act only applies to electronic service communications providers.
18 U.S.C. §2512—Wiretap Act. The wife alleged the husband, his attorney and a John Doe who supplied the key logger software, violated §2512 of the Wiretap Act. The court found that §2512 does not provide for a private right of action and the court dismissed this count.
MCL § 750.539a et seq. and MCL §750.540—Michigan’s Eavesdropping statutes. The Michigan Eavesdropping Statute prohibits a “person…who willfully uses any device to eavesdrop upon the conversation without consent of all parties thereto….” The court ruled that the key logger software was not a device used with respect to a conversation. The key logger only stored the key strokes of the computer and when the wife pressed on a key she was not engaging in a conversation. This count for violation of §750.539a, et seq. was dismissed. With respect to MCL §750.540, which prohibits the reading or copying of messages sent via a computer without authorization, the court dismissed this count also since the statute only addresses criminal sanctions and does not give rise to a civil cause of action.
With respect to the wife’s claims of invasion of privacy, the court granted the husband’s attorney’s motion for summary judgment because there was no evidence the attorney participated in the “intrusion of another’s seclusion,” one of the wife’s theories for invasion of privacy. With respect to the husband, the court stated that the wife had a right to privacy in her private e-mail account. The husband’s defense was that his wife cannot establish a claim because his actions are not objectionable to a reasonable man, since his actions were only done after he inadvertently discovered his wife was engaging in sexual discussion on the Internet and he did it to protect his family and children. The court found that an issue of fact exists as to whether or not use of a key logger to gain access to the wife’s e-mail was objectionable to a reasonable man, thus denying the husband’s motion for summary judgment.
The court granted all defendant’s motions for summary judgment on her count of public disclosures of private facts, finding that the information was only used in court in the custody case and the state needed to determine fitness of a parent in a custody dispute, which was a legitimate concern to the public. The court also dismissed the count for intentional infliction of emotional distress because the use of the key logger does not raise itself to “extreme and outrageous conduct,” a necessary element of that cause of action.
In the end, everyone got out of the case on summary judgment except the husband on the invasion of privacy count and the Stored Communications Act count. For all of you out there thinking of using a key logger or other similar technology to spy on your spouse, remember— this case arises out of a Michigan divorce. Illinois and local statues may cause a different result. Accordingly, it would behoove you to read the case, Bailey v. Bailey, 2008 WL 324156 (E.D. Mich)) as well as your own state’s laws before going down this path. Happy computing.
Microsoft Office OneNote is not a one-trick pony. True, Microsoft has had its share of software “misses,” so it is easy to overlook the useful software that Microsoft does produce. OneNote 2007 is definitely one such gem amongst the chaff, and it is quietly gaining a place in many lawyers’ software toolboxes.
As Microsoft sums it up, “Office OneNote 2007 is a digital notebook that provides people one place to gather their notes and information, powerful search to find what they are looking for quickly, and easy-to-use shared notebooks so that they can manage information overload and work together more effectively.”
If you think of OneNote as an electronic three-ring binder, you’ll begin to understand how this product works. A notebook in OneNote is the equivalent of a binder, with each notebook section being the equivalent of a paper tab, and the pages inside being places to write down notes and collect and organize your information. But OneNote goes far beyond traditional note-taking pads and three-ring binders—and also beyond other note-taking tools available for the computer.
OneNote allows users to collect a wide-ranging array of information to be placed on its pages, including text, graphics, Web pages, and video and audio files. It allows you to search not only text, but also text within graphic files and speech within audio and video files as well. Suddenly, all your information can be kept in one logical place that can be easily searched, changed and shared with others.
Sharing capabilities.
As lawyers become increasingly mobile, it is very important to be able to keep your information with you at all times. To facilitate this, you can easily share OneNote notebooks between your desktop and your laptop computer. If you place the files on a server or shared drive, you can quickly and easily synchronize changes between computers. Synchronization happens automatically when you open OneNote on your computer and you can also trigger a synchronization manually to insure that changes are made without restarting the program.
If you need to collaborate with others inside or outside your firm, you can effortlessly share OneNote notebooks with other OneNote users, with OneNote automatically handling any changes. You can even share notebooks and pages with non-OneNote -users by sending your notes in HTML format to anyone who has an HTML-enabled e-mail client or Web browser. In addition, because OneNote 2007 is integrated with the 2007 Microsoft Office system, you can copy, paste and print information from OneNote into Microsoft Word, Excel, Outlook and PowerPoint, and vice versa. You can also create Outlook items in OneNote such as Contacts, Tasks and Appointments. You can also print (convert) OneNote files much as you do when printing files to PDF in other software programs. OneNote also installs a Send to OneNote button in Outlook and Internet Explorer. Plus, OneNote does not require you to save your work before moving on to another page, or when closing a notebook. Additions or changes are automatically saved, thus removing the worry of having to actively save your work—or of inadvertently losing it by clicking the wrong button.
From a legal perspective, OneNote can be used to compose trial notebooks or to manage all the information on a client’s file for such things as real estate purchases, business formations or estate planning. A number of legal-specific templates are available from Microsoft’s OneNote template page , including a trial notebook, legal client notebook, legal practice notebook, meeting minutes and more. One of the uses that I find myself making more and more is using OneNote as a repository for research on articles and papers. I can gather print, web, notes and other information such as graphics or images in one central location which makes keeping information organized and close to hand extremely easy. It also works well as a place to store all of those little tidbits of information that you would like to keep, but really aren’t sure where to put them so you can find them in the future. I find the “side note” feature to be very useful for doing this.
Side notes and links. OneNote installs its “side note” feature into your Windows toolbar—and, just like in an OneNote page, you can place documents, text, graphics, audio and video files as well as Web information in the side notes. This feature allows the rapid addition of notes that can later be tagged and sorted within OneNote itself. Side notes and items sent to OneNote are placed in the Unfiled Notes notebook and can be moved between Notebooks and Sections by “Drag and drop.” Another particularly nice feature is that when using OneNote to gather information from any Web site, the program inserts a link to the site within the note, so you always know where the information came from. You can also create a link to another file on your system or embed the actual file on a page or within a side note; if you embed the file, it opens using its native program, i.e., .doc files open with Word and .pdf files open with Acrobat. You can create hyperlinks between note pages and sections, too. For those who work on tablet PCs, the program also includes the ability to lasso text for handwriting recognition. The capabilities found within OneNote are truly amazing. But none are quite so amazing as the fact that this product can be purchased as a stand-alone program for under $100. It also comes standard in many Microsoft Office 2007 versions.
I’ve always felt that most people underutilize Microsoft Outlook. In fact, Outlook can be a powerful part of one’s practice management strategy if its organizational model is understood and accepted. My comments are based on Outlook 2003, with occasional reference to new and improved functionality now available in Outlook 2007.
Most practice management systems, including old-fashioned paper-based systems, are driven by what Interwoven, Inc. calls a “matter-centric” organizational model. Interwoven has an outstanding whitepaper on this subject entitled “Matter-Centric Collaboration: A New Foundation for Law Firm IT,” which you can download with a free account at Interwoven.com. The idea of course is that all projects throughout the firm are organized first according to client, then according to matter, and finally according to project steps within the matter.
Both Outlook and law-firm oriented practice management systems like Time Matters and Amicus can organize information in a matter-centric fashion. The primary difference between them is that law-firm oriented practice management systems tend to group all the system’s functionality within the client-matter itself, whereas Outlook tends to keep that functionality separated. In other words, law-firm oriented practice management systems are generally set up so that you “open” a client file and find the appointments, to-do’s, contacts, and file notes inside; by contrast, Outlook is set up to separately sort each of its functional modules (e-mail, calendar, contacts, to-do’s) by client and matter. If that still isn’t clear, continue reading anyway and the point should materialize.
The core tool in Outlook one uses to accomplish this is the “category.” Every unit of information within Outlook can be assigned a category. Furthermore, Outlook maintains a master category list from which categories are assigned; thus, the category assignments stay uniform across all of Outlooks modules. Matter-centric organization is achieved by following a standard pattern of category names, formatted as “client.matter.project.subproject.”
The key to using this system to organize e-mail is to keep all e-mail items inside the “inbox.” I understand that you want to keep your inbox weeded down to just a few current and pressing things; bear with me, we are not getting away from that - we will just be doing it a little differently. Thus, all incoming e-mail stays in the inbox. All sent e-mail gets moved into the inbox. All e-mail drafts get moved into the inbox. I keep my inbox, drafts, and sent folders in the favorites window in the upper left-hand corner of my Outlook screen, and routinely do a quick sweep to make sure everything is in the inbox.
The benefit of having everything in your inbox is that all of your e-mail can be sorted in multiple ways. Thus, you can quickly see a list of all e-mails sent to a particular person by sorting on the “to” column. You can see e-mails sent or received by date by sorting on the “received column.” These are things you cannot do if you drag e-mails into client folders created under the inbox. And, of course, you can sort e-mails by client file by assigning them to categories.
Begin using this system by putting the last ten days of sent or received e-mail back into the inbox. I wouldn’t bother going back farther than that because of the time it takes to go back and add categories to all the old e-mails. One way to get going is to create a subfolder called “pre [insert the date you begin]” and know that any e-mail prior to that date will have to be accessed using whatever sorting method you are using now.
Next, sort your inbox by category. Do that by selecting “view” on the menu bar, then “arrange by” and then “category.” You should see all your e-mail under the “none” category. Begin assigning categories by right clicking on an e-mail and selecting “categories...” That will bring up Outlook’s category assignment window. You can edit that by clicking the “master category list...” button. I recommend you do this right away, and delete every preset category in that list, thus starting with a fresh template.
After that, assign categories to e-mails by typing in the name of the client file in the category assignment window. Remember to name all categories in a “client.matter.project.subproject” manner, so they sort nicely in the inbox. Thus, an e-mail might be assigned to the category “ACME Corporation.Real Estate.Purchase of 1 Main Street.” After you’ve created several categories from this client, your inbox should sort similar to this:
ACME Corporation.Corporate Matters.Sale of Stock
ACME Corporation.Employment Matters.Employment Agreements
ACME Corporation.Real Estate.Purchase of 1 Main Street
ACME Corporation.Real Estate.Sale of 2 Main Street
You will only need to create a category once. After that it will appear in the master category list, and you need only check the box to make the category assignment. If you make a mistake or need to rename a category, just hit the master category list button in the category assignment window and make any necessary changes.
Note that several e-mails can be given category assignments simultaneously. Just hold down the “ctrl” key while you click on e-mails one at a time, then right click on any one of them and check the appropriate category. All selected e-mails will disappear from the “none” category and reappear under the proper category.
Note also that e-mails can be assigned to multiple categories; just check more than one category during the assignment step and the e-mail will appear within every category checked. That might be helpful, for example, if a single e-mail refers to more than one matter.
CAUTION. CAUTION. CAUTION. In versions of Outlook prior to 2007, categories that are assigned to e-mails become part of that e-mail. Thus, if you forward or reply to an e-mail that has been assigned a category, the category will go with it. If you assign e-mails from Attorney Smith to a “rotten so-and-so” category, he will see that if you then reply to one of those e-mails. If you forward an e-mail that has been assigned to a client.matter category, the name of your client and the matter will go with that e-mail. I understand that this critical metadata flaw has been corrected in Outlook 2007. In Outlook 2003, you can get around this two ways. First, you can manually strip the category by clicking “view” and then “options” in the menu bar for the e-mail itself; then, delete any text appearing in the “categories” window. Alternatively, I recently found a script someone has written to do this automatically: <http://www.overcomeemailoverload.com/outlook/vb/stripCategories.html>. Personally, I’ve had trouble getting the script to work (but that doesn’t mean it doesn’t work).
After following this procedure for a while, you should have an “inbox” that functions more like an e-mail document management system, and that can be sorted in many different ways. Furthermore, you can still use the “none” category as the place to keep those few current and pressing e-mails, just like you did before with the inbox itself.
In future articles, I will carry this system over to the calendar, contacts, and task list, demonstrating further how to use Outlook as a powerful practice management system. In so doing, you will not only learn how to organize that information in a matter-centric manner, but also use Outlook as a clause library for drafting documents, as well as a database for storing and organizing CLE materials.