International eDiscovery: United Technologies Corporation Pays Big Fines for Breaching Blocking Statute.

International eDiscovery: United Technologies Corporation Pays Big Fines for Breaching Blocking Statute.

Author: Eric Everson, MBA, MSIT-SE (Juris Doctorate Candidate, May 2013)

Today from Bridgeport, Connecticut US-based United Technologies Corporations (UTC) plead guilty to crimes related to the illegal export of software that U.S. officials say was used by China to develop the country's first modern military attack helicopter. 

As a matter if International Electronic Discovery (eDiscovery), blocking statutes are laws enacted in one jurisdiction to obstruct the local (extra jurisdictional) application of a law enacted from another jurisdiction.  The nature of blocking statues is that they prevent the disclosure of certain kinds of information from being leaked from its country of origin.  Many countries apply these statutes (including America) and most countries use national security as their legislative intent in passing such laws.

Blocking statutes as applied in this case make sharing certain information a criminal act.  Here UTC violated a U.S. blocking statute (likely a violation of the U.S Commerce Control List – 15 CFR Part 774).  One of the great hurdles of International eDiscovery stems from production requests that may include such confidential information. 

As demonstrated by the more than $75 million in fines in connection with the export violations (and for providing misleading information to the U.S. government), violations of blocking statutes can carry stiff penalties.  Counsel for technology companies should be especially cautious with regard to export contracts and should consider an Export Addendum when drafting agreements.  This case arose from the international transaction between UTC and the Chinese government which subjects this cause to extensive International eDiscovery.  

#eDiscovery

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About the Author:  Eric Everson is a 3L law student at Florida A&M University – College of Law.  Prior to law school he earned an MBA and Masters in Software Engineering while he tenured ten years of executive leadership in the U.S. telecommunications industry.  The views and opinions presented in this blog are his own and are not to be construed as legal advice.  Eric Everson currently serves on the Board of Governors for The Florida Bar Young Lawyers Division Law Student Division and is the President of the Electronic Discovery Law Student Association at Florida A&M University – College of Law.  Follow @IntleDiscovery         

Barclay’s Bank Feels the Sting of International eDiscovery

Barclay’s Bank Feels the Sting of International eDiscovery

Author: Eric Everson, MBA, MSIT-SE (Juris Doctorate Candidate 2013)

News broke today about the $454 Million civil settlement that Barclay’s Bank reached with various international enforcement agencies.  In this settlement, Barclay’s has agreed to pay regulators around the world $454 Million to settle a probe of its manipulation of key benchmark rates known as Libor and Euribor.  This international investigation exposed a scheme that seems to stretch from the banks trading desks to senior management team.

In their settlement, Barclay’s has agreed to pay the Commodity Futures Trading Commission (CFTC), the U.S. Department of Justice (DOJ) and the U.K.'s Financial Service Authority (FSA) a total of $454 Million.  In an interesting international eDiscovery development, investigators uncovered a myriad of smoking gun emails during this investigation which revealed a conspiracy stretching from the banks trading desks to top senior management.  These emails reportedly demonstrate barking orders from the trading desks and willful compliance by the managers involved.  This scheme accused Barclay’s of attempting to manipulate the bank's true funding costs, which are key in setting short-term interest rates used in approximately $350 trillion of financial market contracts.

The joint international eDiscovery effort uncovered thousands of emails and other forms of Electronically Stored Information (ESI).  International electronic discovery is the pursuit of digitally native filetypes for use in matters of litigation that transcends international borders.  Barclay’s operates as a Multinational Enterprise (MNE) and is subject to a global standard of ESI preservation.  Multination Enterprises (MNE) are a special kind of corporation that combines multiple entities of incorporation located throughout the global marketplace and most often include at least one American corporation in the business unit hierarchy.  MNE’s are especially subject to a diverse global framework of laws, but are equally subject to a litany of international eDiscovery practices.  Through their corporate structure MNE’s are organized in such a way that generally affords them access to the most diverse conflict of laws variability, yet puts them at constant risk of defending against foreign claims.

In the midst of a global financial crisis, this news is sure to shake the confidence in the global banking industry, yet it highlights the ability of international financial regulatory agencies in identifying and resolving real-time issues.  This case stands as a bellwether of international eDiscovery and puts other MNE’s on notice with regard to the stiff penalties they may face when their activities transcend national borders.

#eDiscovery

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About the Author:  Eric Everson is a 3L law student at Florida A&M University – College of Law.  Prior to law school he earned an MBA and Masters in Software Engineering while he tenured ten years of executive leadership in the U.S. telecommunications industry.  The views and opinions presented in this blog are his own and are not to be construed as legal advice.  Eric Everson currently serves on the Board of Governors for The Florida Bar Young Lawyers Division Law Student Division and is the President of the Electronic Discovery Law Student Association at Florida A&M University – College of Law.          

Major Changes in Florida Legal Practice: Email Service and eFiling

Major Changes in Florida Legal Practice: Email Service and eFiling

Author: Eric Everson, MBA, MSIT-SE (Juris Doctorate Candidate 2013)

This week Florida attorney’s received a major technology upgrade.  On June 21, 2012, The Florida Supreme Court released two major opinions creating the Email Service Rule and mandatory eFiling.  These rules come at a time when courts throughout the nation are trailblazing into digital frontiers as the preferred medium of practicing law. 

For many practicing Florida attorney’s this means big changes and for any non-technology savvy attorney’s these opinions command serious attention.  Here is a quick overview of the opinions:

Email Service Rule:  First, this opinion Florida Rule of Judicial Administration 2.516 (Service of Pleadings and Documents), shall implement mandatory e-mail service for all cases in Florida.  As the opinion notes, “…new rule 2.516 provides that all documents required or permitted to be served on another party must be served by e-mail. Under subdivision (b)(1) (Service by Electronic Mail (e-mail), upon appearing in a proceeding a lawyer must designate a primary e-mail address, and may designate up to two secondary e-mail addresses, for receiving service. Thereafter, service on the lawyer must be made by e-mail.”  Currently however pro se litigants are not required to use e-mail service.

Note: This change impacts ALL new cases in Florida and shall be effective July 1, 2012.  E-mail service will be mandatory for attorneys practicing in the civil, probate, small claims, and family law divisions of the trial courts, as well as in all appellate cases, before electronic filing is mandatory. E-mail service will be mandatory for attorneys practicing in the criminal, traffic, and juvenile divisions of the trial courts on the same date that electronic filing also becomes mandatory for this group.

Mandatory eFiling: Second, this new opinion will require attorneys to file documents with the trial and appellate courts by electronic transmission and will operate in tandem with the new mandatory e-mail service requirements for pleadings and documents.  The proposed amendments will also require the clerks’ offices to maintain electronic court records, to convert paper documents to electronic documents, and to electronically transmit the record on appeal.

Note: The Court has adopted an implementation schedule to phase in these requirements in each division of the trial courts and in the appellate courts based on input from all affected groups.  This opinion especially acknowledges the limited budget resources of the public defenders, state attorneys, and regional counsel however, encourages attorneys and clerks throughout Florida to take notice of the new electronic filing requirements adopted and to begin the process of updating current practices to conform to these requirements.

In conclusion, the days of paper-based law suits are numbered in the State of Florida.  These opinions will have widespread impact on bringing the practice of law into the digital era.  All practicing Florida attorneys are encouraged to read the opinions (links above) as these changes are fast approaching.

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About the Author:  Eric Everson is a 3L law student at Florida A&M University – College of Law.  The views and opinions presented in this blog are his own and are not to be construed as legal advice.  Eric Everson currently serves on the Board of Governors for The Florida Bar Young Lawyers Division Law Student Division and is the President of the Electronic Discovery Law Student Association at Florida A&M University – College of Law.