Craig Ball          
Texas trial lawyer
court-appointed special master in ESI
computer forensic examiner
technologist

3251 Laurel St.
New Orleans, Louisiana 70115


mbl: 713/320.6066

e-mail: craig@ball.net
web: www.craigball.com

 

  Helping Lawyers Master Technology  
   
 

Terms of Engagement
By clicking below, you may download a .PDF example of my terms of engagement.  This document is an example only.  Please do not complete and return.  The engagement agreement applicable to your matter must be drafted by Craig D. Ball, P.C. 

The following terms are common to all engagements and non-negotiable:

1. Craig D. Ball, P.C. does not accept engagements in support of the defense in criminal prosecutions.

2. You may not identify or designate Craig Ball or Craig D. Ball, P.C. as an expert or consultant in your case until and unless Craig D. Ball, P.C. has agreed in writing to serve in that capacity and received the required engagement fee. 

3. Craig D. Ball, P.C. works exclusively for attorneys, law firms and courts and is engaged by the attorney, firm or court, not by the attorney's or firm's client.  The attorney or firm engaging Craig D. Ball, P.C. is primarily responsible for charges for services rendered and expenses, and such charges are not contingent upon the outcome of the case or examination, nor upon the actions of your client.

4. The standard hourly rate is $750.00, half time for travel, plus expenses.  Craig D. Ball, P.C. requires a minimum $7,500.00 non-refundable engagement fee, which is credited to billings for time and expenses in the matter.

5. You warrant that any media tendered to Craig D. Ball, P.C. for examination or duplication and any access granted to any system or network has been lawfully obtained, in full compliance with all applicable orders or policies of any court or agency of competent jurisdiction.

6. It is your responsibility to furnish the names and capacities of all parties or potential parties and counsel before engagement so that Craig D. Ball, P.C. can determine if potential conflicts of interest exist in consulting with you.

7. If Craig D. Ball, P.C. is not formally retained in a timely manner, neither Craig Ball nor Craig D. Ball, P.C. are limited in the ability to accept, and you may not challenge, acceptance of work in any matter, including for your opponent or any party who may be adverse to your client's interests, even if you have shared confidential information with Craig Ball or Craig D. Ball, P.C.relating to such client or matter.  Accordingly, you should not share confidential information until Craig D. Ball, P.C. is formally engaged.

Exemplar Engagement Agreement

2023 Rťsumť and Rate_Sheet

Rules of Conduct for Special Master Engagements and Appointments

  The following are rules that apply by default in matters where I serve as Special Master. Please look these over and assume that they apply to you as parties and counsel in a matter where I serve as Special Master.You are expected to abide by these directives unless you have expressly raised objection and I have expressly relieved you of the obligation to comply.Thank you.

Housekeeping Issues:

What Do You Call Me?

There are few things of lesser consequence to me than what you call me, but it's a question that seems to nettle litigants in other cases, so I thought I'd get it out of the way.  Outside of the context of this matter, please call me "Craig."  But as I stand in the shoes of the Court here, "Mr. Ball" is best in conferences.  Please don't call me "Your Honor" because I haven't earned that honorific. 

 

The Conduct I Expect of You

I cannot compel you to like or trust each other; but in all communications and transactions with me, you must treat each other with professional courtesy.  You will act like professionals deserving of the hard-earned and rarefied privilege to speak and act for others in matters of gravity before the Courts of the United States.  I do not want to hear any sniping, recriminations or bickering please. 

 

I stand in the shoes of the Court in executing my duties; accordingly, candor is obligatory and gamesmanship and dilatory behavior will not be tolerated.  Each counsel has a duty to the integrity of the justice system we serve, to their client(s) and to their individual and firm interests, in that order of priority.

 

Do not tell me anything as a fact that you can't demonstrate to be true, and do not omit information that is important to the whole truth

Candor entails more than just honesty.  It also means being well prepared to address the issues.  It takes a lifetime to build a reputation for integrity and competence and a moment to raze it.

Recording Joint Conference Calls

In past appointments, I found that much time was lost to disputes over what was addressed or agreed to in prior discussions.  Itís human nature to hear and remember what we want to hear and remember such that differences in recollection occur in good faith, albeit erroneously. Having one side or the other serve as recording secretary engenders quarrels about accuracy and bias, and use of a court reporter is costly, cumbersome and ultimately destructive of the candor and dialogue I want to foster.

 

Accordingly, my process is that I will host any conference call in which I participate and will employ the call recording features of the conference system to record and make available to other individual call participants (via their download) the sound recording of the call from the time I direct that recording begin until the conclusion of the call (or as I may otherwise direct based upon the attendant circumstances or subjects).  Such recording is to be created and used ONLY as follows:

1.    

The sole and exclusive purpose of the recording is to afford me an unequivocal rendition of the matters discussed and resolved in the discussions so as not to, inter alia, unnecessarily retread ground and to afford an individual participant in the call a ready reference for him or her to refresh his or her personal recollection of the matters discussed.

2.    

NO ONE is to share a recording, or any part thereof in any form, with any person not actually a disclosed participant in the call recorded.  This exclusion applies to ANYONE not actually a disclosed participant on the recorded call, including clients, assistants, secretaries, attorneys and experts.

3.    

The recording is not an official record and may not be referenced or employed for that purpose or any other.  Its ONLY permitted usage is as follows: A disclosed participant on the call that was recorded may obtain access to the recording on request to assure him or herself that their recollection of a statement made on the call was accurate and complete before testifying about his or her recollection.  Anyone wishing to use the recording to challenge or impeach another's recollection about its contents must do so only by refreshing their own recollection from the recording (as desired) and recounting the events from their refreshed recollection.

4.    

No recording, nor any transcript of same, may be offered into evidence, disclosed or employed for any purpose or by any method other than that described above.

5.    

No other recording of the call or any transcript may be made absent my express and contemporaneous direction to both sides.

6.    

I take these restrictions very seriously, and so should you please.

Ex parte communications with me

I discourage any party from pursuing ex parte communications with me absent some compelling justification.  Abuse of back channel communications is corrosive of trust in the integrity of process.  Still,  I do my job better when I have a full understanding of each sides concerns and needs and recognize that it may occasionally be desirable for one side or the other to engage in ex parte communication, especially where privilege or confidentiality concerns are at stake. 

 

Agreements between the Parties

Please do not expect me to acknowledge or enforce any disputed agreement that has not been properly memorialized pursuant to the Federal Rules of Civil Procedure.  We are formally trained and well-equipped to convert agreements into binding documents, and the Rules make the process easy.  If an agreement wasnít important enough to memorialize, it probably isnít clear or important enough to enforce or follow.

 

Preservation

I expect parties to act diligently, decisively and with due care to insure that information potentially relevant to this matter is preserved in a manner that will not impede or frustrate my work.  This requires more than a hope or expectation that data will be retained.  Counsel must act promptly and take reasonable and effective steps to anticipate foreseeable data loss or corruption and guard against same.  If counsel do not themselves have the knowledge or experience to equip them to know what to anticipate and how to protect against data loss, then counsel must secure prompt assistance from persons who have the requisite knowledge and experience.

Itís common for officers and employees to take matters into their own hands in efforts to protect the company or themselves.  I will not look charitably on negligent or intentional data destruction that occurs in anticipation of my scrutiny.  You should expect human frailty where data is concerned and take immediate, affirmative steps to insure that individuals do not undertake data destruction or other antiforensic measures to erode ESI. 

From experience, I can assure you that no information Iíve examined has ever been as destructive to the interests of the producing parties as the efforts made to conceal or alter it.  It occurs with alarming frequency, undertaken even by people of customarily sterling character. Sometime people let their proprietary feeling about ďtheirĒ computer cloud their judgment.  Even when computer users claim their motivation was just to eradicate evidence of sensitive personal activities or data, the end result is often significant sanctions.

Please assure your clients and their employees that I donít care about any irrelevant activity or information that has no bearing on the issues before the Court.  Iíve pretty much seen it all before, and itís not what this case is about.  My task is not to report on irrelevant downloading of copyrighted music, online shopping or gambling, cheating on taxes, pornography surfing, extramarital liaisons or dabbling in ďart photography.Ē  The sole exception is a clear indication of a user amassing or trading in child pornography.  I must report child pornography trafficking to the authorities, but I trust you wouldnít want me to do otherwise.  That aside, the surest way a user can make their most private, irrelevant information the epicenter of the Courtís attention is to take steps to hide it. 

You may want to let the users know that, in this networked world, the absence of a system is ascertainable in a number of ways.  For example, much like Locardís Principle of trace forensics, any computer that touches a network leaves information about itself on the network and the network leaves information on the system.  The Internet is, of course, the biggest network of them all.  In addition to machines that simply disappear, the use of wiping software or swapping of hard drives will be detected. 

There is nothing about any of the parties or their counsel that causes me to make particular mention of these issues.  Iím simply trying to acquaint you with a too-common scenario and help all of you protect your clientsí and the courtís interests.  Please do not underestimate the potential for abuse or fail to take effective steps to prevent it.