Ethical Issues of the 21st Century

Rule 1.1 of the Model Rules requires that a lawyer “shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation necessary for the representation.” Model Rules of Prof'l Conduct R. 1.1. With e-discovery now the norm, the ability to fulfill this requirement includes the ability to “competently” conduct and defend e-discovery obligations.

What It Means

The 2006 amendments to the Federal Rules make clearer “which [of] counsel's competency requirements now extend to” electronically stored information. “Parties are now obligated: (i) even before receipt of a discovery request, to advise opposing parties of the description and location of electronically stored information supportive of its claims or defenses; (ii) to confer regarding any issues related to the disclosure or discovery of electronically stored information; and (iii) to appropriately distinguish between electronically stored information that is reasonably accessible from that which is not.” Branthoover and Marryshow, supra; see also Fed. R. Civ. P. 26(a)(1); 26(f); and 26(b). Most importantly, perhaps, Federal Rule 26(f) provides that counsel of record is also responsible to make sure that his client complies with these obligations. Id.

Judicial decisions that have discussed the Federal Rules are “a primary source of information regarding the recommended and required steps for electronic discovery.” Id. For example, fulfilling “the obligations imposed by the [Federal Rules] should [also] fulfill the 'competence' requirement of [Model] Rule 1.1.” Id.

Zubulake v. UBS Warburg LLC

The most often cited case on topic is Zubulake v. UBS Warburg LLC, which involved a series of decisions in the U.S. District Court for the Southern District of New York. Two of those decisions, referred to as Zubulake IV and Zubulake V, are the most useful. Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003) and Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004). Specifically, Zubulake V “made clear that a lawyer's competency extends to becom[ing] fully familiar with her client's document retention policies, as well as the client's data retention architecture.” 229 F.R.D. 422. This suggests that “lawyers must know how their clients create and use electronically stored information; how they save it; and how it may be deleted or lost ' all so that discoverable electronically stored material can be properly disclosed, preserved and produced.” Branthoover and Marryshow, supra. Additionally, attorneys must “make sure that appropriate material is preserved,” an obligation which begins when a party “reasonably anticipates litigation.” Van Lanningham, supra. And in Zubulake IV, the court suggests that the requirement may begin even sooner, “when almost everyone associated with [the eventual plaintiff] recognized the possibility that she might sue [the defendant company].” Id. See also 220 F.R.D. at 217.

Zubulake IV also explains that at that time, “the party must suspend its routing document retention/preservation policy and put in place a 'litigation hold' to ensure the preservation of relevant documents.” Id. at 218. Zubulake V takes this even further, requiring the attorney to share in these obligations, specifically stating that the attorney must oversee the client's implementation and compliance with the litigation hold, make sure that potential sources of information are identified, become familiar with the client's retention policies, and affirmatively monitor the client's production of relevant documents. 229 F.R.D. at 432. Once counsel has taken the necessary steps, “the client is on notice of its discovery obligations ' [and] if a party acts contrary to counsel's instructions or to a court's order, it acts at its own peril.” Van Lanningham, supra.

Another ethical concern stems from Model Rule 3.4, which admonishes a lawyer not to “unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other materials having potential evidentiary value.” Model Rules of Prof'l Conduct R. 3.4. This rule seems obvious and, at least to the authors, suggests merely an express declaration of the prohibition of destruction of evidence to electronically stored information. The fact is that lawyers could never legitimately “destroy” documents, which is, after all, the practical consequence of deleting electronic information. Further, a “lawyer should not counsel or assist another person to do any such act.” Id. As evidenced by Rule 3.4's comment, “it is applicable to civil discovery” and it applies to computerized information. Rule 3.4 also demands that a lawyer “make [a] reasonably diligent effort to comply with a legally proper discovery request by an opposing party.” Id. When trying to determine what will constitute a “reasonably diligent effort” as it relates to discovery of electronic information, many questions may arise. Van Lanningham, supra. As with Rule 1.1, fulfilling the civil procedure rule requirements should also fulfill the ethical requirements of Rule 3.4. Id.

Electronic Document Management

Yet another major area within e-discovery that leads to potential ethical problems is electronic document management. “Lawyers and clients must deal with the challenge of managing large amounts of data,” achieved by the use of a third-party vendor, the client, or the lawyer's firm, each of which may present separate concerns. Id.

As a practical matter, utilizing a third-party vendor may seem the easiest option. Choose carefully the vendor, if that is the perceived solution, for the lawyer remains “ultimately responsible for production of the documents.” As a consequence, the “lawyer must be vigilant in monitoring the third-party vendor's conduct” as it relates to the client's electronic materials. Id. While a lawyer may utilize the services of a particular vendor on many occasions, and as a result may become very comfortable with those services, Model Rule 7.2 prevents an attorney from having an exclusive referral agreement with a non-lawyer provider. Model Rules of Prof'l Conduct R. 7.2. Furthermore, under Model Rule 1.8, “when a lawyer transacts business with a client, the lawyer must fully disclose all of the interests that the lawyer retains in a transaction.” Van Lanningham, supra note 33; Model Rules of Prof'l Conduct R. 1.8. The failure to do so can result in difficulties and embarrassment. For example, in 2005, Boies Schiller & Flexner was forced to withdraw from its representation of Adelphia when Adelphia learned that Mr. Boies' relatives held a financial interest in the third-party vendor company that Boies had employed, and to which Adelphia had paid millions in fees. Gina Passarella, “Adelphia Discontinues Malpractice Case Against Deloitte & Touche After 167.5M Settlement,” Sept. 6, 2007: http://www.law.com/jsp/article.jsp?id=1188982951239.

A similar issue to that of a third-party vendor arises in the context of a client serving as its own provider of management services. The lawyer will remain liable for coordinating the client's discovery efforts, as set forth in the Zubulake decisions, and as further discussed above.

In the event that the lawyer's firm chooses to provide the services, one potential issue stems from the fact that Model Rule 1.7 requires that a lawyer provide competent services, which extends “to the provision of law-related services.” Van Lanningham, supra note 33; Model Rules of Prof'l Conduct R. 1.7. Not surprisingly, “the more technical or complex the requirements of the ancillary services needed by the client, the more difficult it may be for the lawyer to meet the 'competency' standard in providing such services.” Id. One concluding issue may arise in this context: a lawyer whose firm is providing the services may become a “necessary” witness, which implicates the strictures of Model Rule 3.7, which prohibits a lawyer from “serving as counsel in a case when the lawyer is likely to be a necessary witness.” Id. See also Model Rules of Prof'l Conduct R. 3.7.

A final concern is the protection for the risk of inadvertent production of documents. Model Rule 4.4(b) demands that “[a] lawyer who receives a document relating to the representation of the lawyer's client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.” Model Rules of Prof'l Conduct R. 4.4(b). Further, Federal Rule 26(b)(5) includes a “clawback” procedure which provides that “a party's inadvertent production of privileged information is protected and specific procedures are established for handling such inadvertent productions.” Branthoover and Marryshow, supra. However, “in today's digital environment, a party's obligations and its counsel's obligations with respect to metadata” is unclear when attempting to mesh these two rules. Id. More specifically, it remains unclear whether or not a party must assume that metadata was intentionally produced or that it was inadvertently disclosed. In the end, one caution is abundantly clear: attorneys are “fully on notice of their responsibility to preserve and produce electronically stored information.” 229 F.R.D. at 440.

Social Networking and Blogs Ethical Issues

In a world in which MySpace, Facebook, other social networking sites and countless blogs have proliferated, lawyers were destined to get in on the action, and in fact, attorneys were “early adopters” of these technologies. But with that action comes potential ethical issues, including perhaps the most heavily discussed issue of the applicability of ethics rules related to attorney advertising.

Model Rule 7.2 expressly includes within its scope “electronic communications.” The rule thus presumptively governs advertising on blogs and social networking sites. The rule also states that legal services may be advertised “through written, recorded, or electronic communications, including public media.” Model Rules of Prof'l Conduct R. 7.2(a). Although Rule 7.2 does not explicitly mention blogging or social networking sites, one commentator has suggested that “the rule was intended to cover any new public-communication technology, including blogs” and social networking sites. See Sarah Hale, Lawyers at the Keyboard: Is Blogging Advertising and if So, How Should it Be Regulated?, 20 Geo. J. Legal Ethics 669, 671. This interpretation is more than reasonable: it appears fully consistent with the purpose and intent of the Rule from a policy standpoint. This is further reinforced by one of the comments to Rule 7.2, which lists types of information the dissemination of which is permitted in the context of attorney advertising: “information concerning a lawyer's name or firm name, address and telephone number; the kinds of services the lawyer will undertake; the basis on which the lawyer's fees are determined, including prices for specific services and payment and credit arrangements; a lawyer's foreign language ability; names of references and, with their consent, names of clients regularly represented; and other information that might invite the attention of those seeking legal assistance.” Model Rules of Prof'l Conduct R 7.2, comment 2.

One need only log on to random legal blogs or attorney social network profiles to conclude that lawyers display much of the foregoing information on their pages. Additionally, many of these pages include a link to the lawyer's official law firm Web site. While there are several “ethics opinions that clearly indicate that a Web page is an ad[,] we have been unable to locate any ethics opinions on whether profiles posted on social networking sites are ads.” See Cydney Tune and Marley Degner, Blogging and Social Networking: Current Legal Issues, Practising Law Institute, PLI Order No. 14617 (March-April 2008). Nevertheless, the prudent approach is to conclude that the rule applies to social network sites and blogs because much of the same information is often included on both. Indeed, it would appear imprudent to conclude otherwise.

One of the problems that appears in this context is that several states' ethical rules require that attorneys maintain a copy of all advertisements for several years after their initial publication. Hale, supra, at 674; see examples: R.I. Rules of Prof'l Conduct R. 7.2(b); N.J. Rules of Prof'l Conduct R. 7.2(b); KY. Rules of Prof'l Conduct R. 7.05(1)(b). Most lawyers update their blogs on a frequent basis. Thus, if these requirements are applied to blogs, attorneys would be required to keep a hard copy of each new post for an extended period of time, depending on the states' requirements. Id. The ready availability of blogs and social networking sites to users in all states (and of course internationally) accordingly presents issues with respect to the application of the ethics rules of a multiplicity of states. Tune and Degner, supra, at 93. It may be impossible for an attorney to comply with all states' ethical rules at the same time as it relates to advertising on blogs and social networking sites, because some state rules are “mutually contradictory.” Id. All of this, of course, is likely to develop in litigation and opinions in the years to come, given that technological developments continue to outpace the ability of regulation and regulators to address these issues.

Conclusion

As the 21st Century unfolds, it appears likely that even more and surprising technological developments will further complicate and confuse the application of traditional ethical rules to the use of these yet unforeseen developments. New media have posed substantive challenges in a host of legal areas, but their effect on ethical rules has been to create a confusing and often contradictory regulatory pattern. This paper has offered a survey of those issues in an effort to alert practitioners to the problems that lurk in their employment with some indication of how to avoid the fate of Eli Lilly's lawyers: getting unwanted publicity for an unhappy and unintentional violation of an ethical duty. It goes without saying that attorneys must keep abreast of their local ethical obligations to assure that their practices are in line with the changing and evolving standards. But for all time, and for every situation, disable the “reply to all” feature. And you might think about doing the same for the auto complete feature as well.

Frederick L. Whitmer is a partner of the international law firm Thelen Reid Brown Raysman & Steiner LLP and one of the co-heads of the Intellectual Property Litigation Practice Group at the firm. He has his principal office in New York and can be reached at [email protected]. Benjamin D. Goldberg is an associate at the Firm in the Technology, Media and Communications department and can be reached at [email protected].

In Part One of this article, we covered ethical issues relating to e-mail. In Part Two below, we discuss ethical issues related to e-discovery and social networking and blogs.

e-Discovery

One author has suggested that, today, “more than 90% of potentially discoverable information is generated and stored electronically.” See Christopher D. Wall, Ethics in the Era of Electronic Evidence, 41 Trial 56, 56 (Oct. 2005). As a result, “lawyers must understand their ethical obligations with respect to the preservation, organization and production of a potentially unwieldy amount of electronic information.” See Allison O. Van Lanningham, Navigating in the Brave New World of E-Discovery: Ethics, Sanctions and Spoliation, http://findarticles.com/p/articles/mi_qa4023/is_200707/ai_n21099704/print, FDCC Quarterly (Summer 2007). Courts have “struggled with the application of traditional discovery rules to ever-evolving forms of electronically stored information.” See Carolyn M. Branthoover and Karen I. Marryshow, Ethical Considerations in Light of the Recent E-Discovery Amendments to the Federal Rules, http://www.klgates.com/newsstand/detail.aspx?publication=3581. In December 2006, amendments affecting the discovery of electronically stored information took effect to the Federal Rules of Civil Procedure (the “Federal Rules”). These changes have helped hone the understanding regarding a lawyer's ethical obligations in e-discovery. They have also vastly expanded the risk to practitioners in conducting or defending discovery campaigns.

Rule 1.1 of the Model Rules requires that a lawyer “shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation necessary for the representation.” Model Rules of Prof'l Conduct R. 1.1. With e-discovery now the norm, the ability to fulfill this requirement includes the ability to “competently” conduct and defend e-discovery obligations.

What It Means

The 2006 amendments to the Federal Rules make clearer “which [of] counsel's competency requirements now extend to” electronically stored information. “Parties are now obligated: (i) even before receipt of a discovery request, to advise opposing parties of the description and location of electronically stored information supportive of its claims or defenses; (ii) to confer regarding any issues related to the disclosure or discovery of electronically stored information; and (iii) to appropriately distinguish between electronically stored information that is reasonably accessible from that which is not.” Branthoover and Marryshow, supra; see also Fed. R. Civ. P. 26(a)(1); 26(f); and 26(b). Most importantly, perhaps, Federal Rule 26(f) provides that counsel of record is also responsible to make sure that his client complies with these obligations. Id.

Judicial decisions that have discussed the Federal Rules are “a primary source of information regarding the recommended and required steps for electronic discovery.” Id. For example, fulfilling “the obligations imposed by the [Federal Rules] should [also] fulfill the 'competence' requirement of [Model] Rule 1.1.” Id.

Zubulake v. UBS Warburg LLC

The most often cited case on topic is Zubulake v. UBS Warburg LLC, which involved a series of decisions in the U.S. District Court for the Southern District of New York. Two of those decisions, referred to as Zubulake IV and Zubulake V, are the most useful. Zubulake v. UBS Warburg LLC , 220 F.R.D. 212 (S.D.N.Y. 2003) and Z ubulake v. UBS Warburg LLC , 229 F.R.D. 422 (S.D.N.Y. 2004). Specifically, Zubulake V “made clear that a lawyer's competency extends to becom[ing] fully familiar with her client's document retention policies, as well as the client's data retention architecture.” 229 F.R.D. 422. This suggests that “lawyers must know how their clients create and use electronically stored information; how they save it; and how it may be deleted or lost ' all so that discoverable electronically stored material can be properly disclosed, preserved and produced.” Branthoover and Marryshow, supra. Additionally, attorneys must “make sure that appropriate material is preserved,” an obligation which begins when a party “reasonably anticipates litigation.” Van Lanningham, supra. And in Zubulake IV, the court suggests that the requirement may begin even sooner, “when almost everyone associated with [the eventual plaintiff] recognized the possibility that she might sue [the defendant company].” Id. See also 220 F.R.D. at 217.

Zubulake IV also explains that at that time, “the party must suspend its routing document retention/preservation policy and put in place a 'litigation hold' to ensure the preservation of relevant documents.” Id. at 218. Zubulake V takes this even further, requiring the attorney to share in these obligations, specifically stating that the attorney must oversee the client's implementation and compliance with the litigation hold, make sure that potential sources of information are identified, become familiar with the client's retention policies, and affirmatively monitor the client's production of relevant documents. 229 F.R.D. at 432. Once counsel has taken the necessary steps, “the client is on notice of its discovery obligations ' [and] if a party acts contrary to counsel's instructions or to a court's order, it acts at its own peril.” Van Lanningham, supra.

Another ethical concern stems from Model Rule 3.4, which admonishes a lawyer not to “unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other materials having potential evidentiary value.” Model Rules of Prof'l Conduct R. 3.4. This rule seems obvious and, at least to the authors, suggests merely an express declaration of the prohibition of destruction of evidence to electronically stored information. The fact is that lawyers could never legitimately “destroy” documents, which is, after all, the practical consequence of deleting electronic information. Further, a “lawyer should not counsel or assist another person to do any such act.” Id. As evidenced by Rule 3.4's comment, “it is applicable to civil discovery” and it applies to computerized information. Rule 3.4 also demands that a lawyer “make [a] reasonably diligent effort to comply with a legally proper discovery request by an opposing party.” Id. When trying to determine what will constitute a “reasonably diligent effort” as it relates to discovery of electronic information, many questions may arise. Van Lanningham, supra. As with Rule 1.1, fulfilling the civil procedure rule requirements should also fulfill the ethical requirements of Rule 3.4. Id.

Electronic Document Management

Yet another major area within e-discovery that leads to potential ethical problems is electronic document management. “Lawyers and clients must deal with the challenge of managing large amounts of data,” achieved by the use of a third-party vendor, the client, or the lawyer's firm, each of which may present separate concerns. Id.

As a practical matter, utilizing a third-party vendor may seem the easiest option. Choose carefully the vendor, if that is the perceived solution, for the lawyer remains “ultimately responsible for production of the documents.” As a consequence, the “lawyer must be vigilant in monitoring the third-party vendor's conduct” as it relates to the client's electronic materials. Id. While a lawyer may utilize the services of a particular vendor on many occasions, and as a result may become very comfortable with those services, Model Rule 7.2 prevents an attorney from having an exclusive referral agreement with a non-lawyer provider. Model Rules of Prof'l Conduct R. 7.2. Furthermore, under Model Rule 1.8, “when a lawyer transacts business with a client, the lawyer must fully disclose all of the interests that the lawyer retains in a transaction.” Van Lanningham, supra note 33; Model Rules of Prof'l Conduct R. 1.8. The failure to do so can result in difficulties and embarrassment. For example, in 2005, Boies Schiller & Flexner was forced to withdraw from its representation of Adelphia when Adelphia learned that Mr. Boies' relatives held a financial interest in the third-party vendor company that Boies had employed, and to which Adelphia had paid millions in fees. Gina Passarella, “Adelphia Discontinues Malpractice Case Against Deloitte & Touche After 167.5M Settlement,” Sept. 6, 2007: http://www.law.com/jsp/article.jsp?id=1188982951239.

A similar issue to that of a third-party vendor arises in the context of a client serving as its own provider of management services. The lawyer will remain liable for coordinating the client's discovery efforts, as set forth in the Zubulake decisions, and as further discussed above.

In the event that the lawyer's firm chooses to provide the services, one potential issue stems from the fact that Model Rule 1.7 requires that a lawyer provide competent services, which extends “to the provision of law-related services.” Van Lanningham, supra note 33; Model Rules of Prof'l Conduct R. 1.7. Not surprisingly, “the more technical or complex the requirements of the ancillary services needed by the client, the more difficult it may be for the lawyer to meet the 'competency' standard in providing such services.” Id. One concluding issue may arise in this context: a lawyer whose firm is providing the services may become a “necessary” witness, which implicates the strictures of Model Rule 3.7, which prohibits a lawyer from “serving as counsel in a case when the lawyer is likely to be a necessary witness.” Id. See also Model Rules of Prof'l Conduct R. 3.7.

A final concern is the protection for the risk of inadvertent production of documents. Model Rule 4.4(b) demands that “[a] lawyer who receives a document relating to the representation of the lawyer's client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.” Model Rules of Prof'l Conduct R. 4.4(b). Further, Federal Rule 26(b)(5) includes a “clawback” procedure which provides that “a party's inadvertent production of privileged information is protected and specific procedures are established for handling such inadvertent productions.” Branthoover and Marryshow, supra. However, “in today's digital environment, a party's obligations and its counsel's obligations with respect to metadata” is unclear when attempting to mesh these two rules. Id. More specifically, it remains unclear whether or not a party must assume that metadata was intentionally produced or that it was inadvertently disclosed. In the end, one caution is abundantly clear: attorneys are “fully on notice of their responsibility to preserve and produce electronically stored information.” 229 F.R.D. at 440.

Social Networking and Blogs Ethical Issues

In a world in which MySpace, Facebook, other social networking sites and countless blogs have proliferated, lawyers were destined to get in on the action, and in fact, attorneys were “early adopters” of these technologies. But with that action comes potential ethical issues, including perhaps the most heavily discussed issue of the applicability of ethics rules related to attorney advertising.

Model Rule 7.2 expressly includes within its scope “electronic communications.” The rule thus presumptively governs advertising on blogs and social networking sites. The rule also states that legal services may be advertised “through written, recorded, or electronic communications, including public media.” Model Rules of Prof'l Conduct R. 7.2(a). Although Rule 7.2 does not explicitly mention blogging or social networking sites, one commentator has suggested that “the rule was intended to cover any new public-communication technology, including blogs” and social networking sites. See Sarah Hale, Lawyers at the Keyboard: Is Blogging Advertising and if So, How Should it Be Regulated?, 20 Geo. J. Legal Ethics 669, 671. This interpretation is more than reasonable: it appears fully consistent with the purpose and intent of the Rule from a policy standpoint. This is further reinforced by one of the comments to Rule 7.2, which lists types of information the dissemination of which is permitted in the context of attorney advertising: “information concerning a lawyer's name or firm name, address and telephone number; the kinds of services the lawyer will undertake; the basis on which the lawyer's fees are determined, including prices for specific services and payment and credit arrangements; a lawyer's foreign language ability; names of references and, with their consent, names of clients regularly represented; and other information that might invite the attention of those seeking legal assistance.” Model Rules of Prof'l Conduct R 7.2, comment 2.

One need only log on to random legal blogs or attorney social network profiles to conclude that lawyers display much of the foregoing information on their pages. Additionally, many of these pages include a link to the lawyer's official law firm Web site. While there are several “ethics opinions that clearly indicate that a Web page is an ad[,] we have been unable to locate any ethics opinions on whether profiles posted on social networking sites are ads.” See Cydney Tune and Marley Degner, Blogging and Social Networking: Current Legal Issues, Practising Law Institute, PLI Order No. 14617 (March-April 2008). Nevertheless, the prudent approach is to conclude that the rule applies to social network sites and blogs because much of the same information is often included on both. Indeed, it would appear imprudent to conclude otherwise.

One of the problems that appears in this context is that several states' ethical rules require that attorneys maintain a copy of all advertisements for several years after their initial publication. Hale, supra, at 674; see examples: R.I. Rules of Prof'l Conduct R. 7.2(b); N.J. Rules of Prof'l Conduct R. 7.2(b); KY. Rules of Prof'l Conduct R. 7.05(1)(b). Most lawyers update their blogs on a frequent basis. Thus, if these requirements are applied to blogs, attorneys would be required to keep a hard copy of each new post for an extended period of time, depending on the states' requirements. Id. The ready availability of blogs and social networking sites to users in all states (and of course internationally) accordingly presents issues with respect to the application of the ethics rules of a multiplicity of states. Tune and Degner, supra, at 93. It may be impossible for an attorney to comply with all states' ethical rules at the same time as it relates to advertising on blogs and social networking sites, because some state rules are “mutually contradictory.” Id. All of this, of course, is likely to develop in litigation and opinions in the years to come, given that technological developments continue to outpace the ability of regulation and regulators to address these issues.

Conclusion

As the 21st Century unfolds, it appears likely that even more and surprising technological developments will further complicate and confuse the application of traditional ethical rules to the use of these yet unforeseen developments. New media have posed substantive challenges in a host of legal areas, but their effect on ethical rules has been to create a confusing and often contradictory regulatory pattern. This paper has offered a survey of those issues in an effort to alert practitioners to the problems that lurk in their employment with some indication of how to avoid the fate of Eli Lilly's lawyers: getting unwanted publicity for an unhappy and unintentional violation of an ethical duty. It goes without saying that attorneys must keep abreast of their local ethical obligations to assure that their practices are in line with the changing and evolving standards. But for all time, and for every situation, disable the “reply to all” feature. And you might think about doing the same for the auto complete feature as well.

Frederick L. Whitmer is a partner of the international law firm Thelen Reid Brown Raysman & Steiner LLP and one of the co-heads of the Intellectual Property Litigation Practice Group at the firm. He has his principal office in New York and can be reached at [email protected]. Benjamin D. Goldberg is an associate at the Firm in the Technology, Media and Communications department and can be reached at [email protected].