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| Helping Lawyers Master Technology | |||
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Terms of
Engagement 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. 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. It’s 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 wasn’t important enough to memorialize, it
probably isn’t 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. It’s 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 I’ve 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 “their” 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 don’t care about any irrelevant activity or
information that has no bearing on the issues before the Court. I’ve
pretty much seen it all before, and it’s 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 “art photography.” 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 wouldn’t want me to do otherwise. That
aside, the surest way a user can make their most private, irrelevant
information the epicenter of the Court’s 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 Locard’s 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. I’m simply trying to acquaint you with a too-common
scenario and help all of you protect your clients’ and the court’s
interests. Please do not underestimate the potential for abuse or
fail to take effective steps to prevent it. |