Litigation

Litigation, Privacy and other Legal Issues in Cloud Computing

by Fred Abramson on October 21, 2009 · 4 comments

There is a growing trend for companies to store information at a remote location, or a “cloud.” Whether you are using Google Docs or have remote servers physically located elsewhere, if you are collaborating with other people and information is not stored on your hard drive, you are probably “cloud computing.”

So who is effected by the move to Cloud Computing?  The move could impact companies such as software companies, internet service providers and hardware manufacturers. Companies in each of these industries will face a big change if more people turn to cloud computing to store their data.

Cloud computing is a terrific alternative for companies who have people working together on a project at different locations.  Because the costs are relatively low, cloud computing makes it easier to conduct business.  However if your business is engaged in posting user information online, you should be mindful of privacy and litigation issues.

Be aware of the types of documents that you post in the cloud and how it can be used by others. Businesses should be especially concerned about posting:

  • Business presentations
  • Employee work and health information
  • Tax and accounting records
  • Schedules and Calendars
  • Contracts
  • Trade Secrets
  • Confidential Consumer Information

If your company becomes involved in a litigation, your opposing counsel may ask your cloud hosting provider for access to company records. A business engaged in cloud computing must know that privacy laws vary depending on the physical location of your provider.

The liability and responsibility for any breach of privacy claims is something that a business needs to protect itself against. Companies can limit liability by having a properly drafted document retention policy.

For more reading about legal issues in cloud computing for lawyers, read Niki Black’s article in the Lawyerist.

If you have any questions regarding cloud computing, litigation and privacy law, contact me at the Law Office of Frederic R. Abramson at 212-233-0666.

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Breach of Contract Lawsuit in New York: Quick guide to steps

by Fred Abramson on May 18, 2009 · 1 comment

Breach of contract occurs when a binding agreement or bargained-for exchange is not honored by one or more of the parties to the contract by non-performance or interference with the other party’s performance. If the party does not fulfill his contractual promise, or has given information to the other side that he will not perform his duty as mentioned in the contract or if by his action and conduct he seems to be unable to perform the contract, that party is said to breach the contract.

An example of a breach of contract lawsuit is when a client has failed to pay as per a written agreemtn. What should you do?  First you should see whether the other side has any defenses. Should you call a lawyer and start a lawsuit?

Below, is quick guide that summarizes the basic steps, legal process and expenses of a breach of contract lawsuit.

Legal Steps:

1. Prove existence of Agreement;

2. Prove breach of Agreement (failure on one side to perform or pay);

3. Prove damages due to breach (loss of profit, damage to business).

Legal Process:

1. File Complaint with the Court;

2. Defendant answers the Complaint, and could start a counterclaim;

3. Period of Discovery which are oral and written questions from each side. Interrogatories and Bills of Particulars are written discovery. Depositions are discovery interviews.

4. Discovery conferences. For example, in New York County, you will have a preliminary conference and a series of compliance, status and settlement conferences.

5. Motions requesting certain relief. For example, a party may make a summary judgment motion if they believe that there are no issues of fact and that they are entitled to judgment as a matter of law.

6. Trial

Expenses:

1. Timeframe: Between 1 and 5 years.

2. Retainer: A common breach of contract retainer is between $5 and $20 thousand dollars.

3. Court costs: Between $500 and $10,0000.00.

4. If a case proceeds to trial, $20-$100,000 is not uncommon.

If you have any questions regarding a breach of contract, contact me at the Law Office of Frederic R. Abramson at 212-233-0666

What you need to know as a deposition witness.

by Fred Abramson on February 10, 2009 · 1 comment

In New York, during the discovery process of a lawsuit, each party often has the right to question the other party at an Examination Before Trial, otherwise known as a deposition. Because more than 95% of cases that are litigated are settled before trial, the deposition may be the only time that you will be questioned under oath.

The deposition occurs at one of three places: at a court reporters office, a law office, or the court office. Because lawyers often want the deposition to take place at a neutral site, they are often held at a court reporters office. If you had visions of arriving at plush office, with tea and scones being served, unfortunately, you may be disappointed. For instance, the court reporting facilities for Diamond Reporting in the Bronx is located in the basement of a pre-war building directly across from the new Yankee Stadium. A fellow attorney has described the décor as “neo bomb shelter.” Anyway, you should never allow the facilities to distract you from the task at hand.

Attending the deposition will be the attorneys for the parties involved in the litigation and a court reporter. The court reporter transcribes everything that is said. Opposing counsel sits at one side of the table, the court reporter sits at the head of the table, you will sit next to the court reporter, and your attorney will set next to you. In approximately a month following the deposition, all parties will receive a deposition transcript. Unlike a test in high school, you can actually make alterations to the transcript. For instance, if you misheard a question, you can affirm that you misspoke your answer and provide what you believe is truthful answer.

The deposition is not like a regular conversation. You will be sworn in, under oath, by the court reporter. If there are more than two parties attending a deposition, each attorney will have a separate opportunity to ask questions. They will ask very specific questions that require precise answers. Since every type of case has its unique set of circumstances, they are all somewhat different. However, here are seven points you should know prior to attending your deposition.

1. Dress well. Appearances do count. Wear a business suit. Do not dress like these celebrities.

2. Answer the question that is being asked. As an example, if you are being asked “What date did you sign the contract” don’t answer, “At Mr. Singer’s office, I signed a contact at 3pm.”

3. K.I.S.S. Keep your answers short and simple. Remarkably, the attorney asking you questions often has very little knowledge of your case. Each additional word that you say provides the opposing counsel with an additional opportunity to ask follow up questions.

4. Don’t Guess. Simply state “I don’t know” to a question you don’t know the answer to. Take it from me, after hearing millions of answers from witnesses, it is simple for an attorney to tell the difference between an answer that is real from a fictional account. Be honest.

5. Pause before answering a question. A deposition is not a race. Take a moment to make sure that you understand the question before answering. You can ask the opposing counsel to rephrase the question. It also provides an opportunity for your attorney to object to an improper question.

6. Don’t be afraid to take a break. You may become tired if the deposition takes over a few hours. As a result of fatigue, you may then provide answers that are not accurate. You also may take a break to speak to your attorney if there is not an open question.

7. The other lawyer’s are not your new friends. Believe it or not, some attorneys are actually friendly. I am married to a friendly lawyer. Don’t let that fool you. Opposing counsel may be using this as a technique to lure you into providing the information they need.