Craig Ball          
trial lawyer
technologist
computer forensic examiner

3723 Lost Creek Blvd.
Austin, Texas 78735


tel: 512/514.0182
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 $550.00, half time for travel, plus expenses.  Craig D. Ball, P.C. require a minimum $5,500.00 non-refundable engagement fee, which is credited to billings for time and expenses.

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 (26KB)

Rules of Conduct for Special Master Engagements and Appointments

 The following are rules that apply by default inmatters where I serve as Special Master.Please look these over and assume that they apply to you as parties andcounsel in a matter where I serve as Special Master.† You are expected to abide by these directivesunless you have expressly raised objection and I have expressly relieved you ofthe obligation to comply.Thank you.

Housekeeping Issues:

What Do You Call Me?

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

 

The Conduct I Expect of You

I cannot compel you to like or trust each other; but in allcommunications and transactions with me, you must treat each other withprofessional courtesy.  You will act like professionals deserving ofthe hard-earned and rarefied privilege to speak and act for others in mattersof gravity before the Courts of the United States.  I do not want tohear 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 willnot be tolerated.  Each counsel has a duty to the integrity of thejustice system we serve, to their client(s) and to their individual and firminterests, in that order of priority.

 

Do not tell meanything as a fact that you can't demonstrate to be true, and do not omitinformation that is important to the whole truth

Candor entails more than justhonesty.  It also means being well prepared to address theissues.  It takes a lifetime to build a reputation for integrity andcompetence and a moment to raze it.

Recording Joint Conference Calls

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

 

Accordingly, myprocess is that I will host any conference call in which I participate and willemploy the call recording features of the conference system to record and makeavailable to other individual call participants (via their download) the soundrecording of the call from the time I direct that recording begin until theconclusion of the call (or as I may otherwise direct based upon the attendantcircumstances or subjects).  Such recording is to be created and usedONLY as follows:

1.    

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

2.    

NO ONE is to share arecording, or any part thereof in any form, with any person notactually a disclosed participant in the call recorded.  Thisexclusion applies to ANYONE not actually a disclosed participant on therecorded call, including clients, assistants, secretaries, attorneys andexperts.

3.    

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

4.    

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

5.    

No other recording ofthe call or any transcript may be made absent my express and contemporaneousdirection to both sides.

6.    

I take theserestrictions very seriously, and so should you please.

Ex parte communications with me

I discourage any party from pursuing ex parte communicationswith me absent some compelling justification.  Abuse of back channelcommunications is corrosive of trust in the integrity ofprocess.  Still,  I do my job better when I have a fullunderstanding of each sides concerns and needs and recognize that it mayoccasionally be desirable for one side or the other to engage in exparte communication, especially where privilege or confidentialityconcerns are at stake. 

 

Agreements between the Parties

Please do not expect me to acknowledge or enforce any disputedagreement that has not been properly memorialized pursuant to the Federal Rulesof Civil Procedure.  We are formally trained and well-equipped toconvert agreements into binding documents, and the Rules make the processeasy.  If an agreement wasnít important enough to memorialize, itprobably isnít clear or important enough to enforce or follow.

 

Preservation

I expect parties toact diligently, decisively and with due care to insure that informationpotentially relevant to this matter is preserved in a manner that will notimpede or frustrate my work.  This requires more than a hope orexpectation that data will be retained.  Counsel must act promptlyand take reasonable and effective steps to anticipate foreseeable data loss orcorruption and guard against same.  If counsel do not themselves havethe knowledge or experience to equip them to know what to anticipate and how toprotect against data loss, then counsel must secure prompt assistance frompersons who have the requisite knowledge and experience.

Itís common forofficers and employees to take matters into their own hands in efforts toprotect the company or themselves.  I will not look charitably onnegligent or intentional data destruction that occurs in anticipation of myscrutiny.  You should expect human frailty where data is concernedand take immediate, affirmative steps to insure that individuals do notundertake data destruction or other antiforensic measures to erode ESI. 

From experience, I canassure you that no information Iíve examined has ever been as destructive tothe interests of the producing parties as the efforts made to conceal or alterit.  It occurs with alarming frequency, undertaken even by people ofcustomarily sterling character. Sometime people let their proprietaryfeeling about ďtheirĒ computer cloud their judgment.  Even whencomputer users claim their motivation was just to eradicate evidence ofsensitive personal activities or data, the end result is often significantsanctions.

Please assure yourclients and their employees that I donít care about any irrelevant activity orinformation that has no bearing on the issues before the Court.  Iívepretty much seen it all before, and itís not what this case isabout.  My task is not to report on irrelevant downloading ofcopyrighted music, online shopping or gambling, cheating on taxes, pornographysurfing, extramarital liaisons or dabbling in ďart photography.Ē  Thesole exception is a clear indication of a user amassing or trading in childpornography.  I must report child pornography trafficking to theauthorities, but I trust you wouldnít want me to do otherwise.  Thataside, the surest way a user can make their most private, irrelevantinformation the epicenter of the Courtís attention is to take steps to hide it. 

You may want to letthe users know that, in this networked world, the absence of a system isascertainable in a number of ways.  For example, much like Locardís Principle of trace forensics, any computer thattouches a network leaves information about itself on the network and thenetwork leaves information on the system.  The Internet is, ofcourse, the biggest network of them all.  In addition to machinesthat simply disappear, the use of wiping software or swapping of hard driveswill be detected. 

There is nothing aboutany of the parties or their counsel that causes me to make particular mentionof these issues.  Iím simply trying to acquaint you with a too-commonscenario and help all of you protect your clientsí and the courtísinterests.  Please do not underestimate the potential for abuse orfail to take effective steps to prevent it.