Absolute total crap - no way does any of that belong in the public domain save for required reporting. Probably if you resist you’ll be tortured!

How is not privilege still attached?

How is that legal?

But how can an attorney protect someone’s rights? It’s to late - the data is already published. Maybe the only way is to sue the University of Maryland to pay an indemnity.

Oh, excuse me, I’ve missed that the records have not yet been published.

uhm - what happened to attorney-client priviledge?

There are just case after case where courts just are not up to today’s standards and practices regarding the Internet.

Maybe this will help get the word out.

this is insane! this is totally not good for the industry as a whole..

The University of Maryland reference is likely related to the Business Plan archive. That body of research ranges from business cards and company schwag to business plans, executive memos, etc.

Many of the Business Plan Archive’s documents came from a single east coast VC after it dissolved, covering every business plan received from August 1995 until about March 2000.

Access varies from purely research in nature, with appropriate credentials, to public browsing rights.

“Somebody Needs To Stop This”

What? The useless posts? I’m in favor of that.

This sounds like a breach of privacy on many levels. I’m no lawyer, but I would hope that my law firm would require my signature for *anything* before putting it on display for journalist to dig through, especially if I am a start-up with confidential information or trade-secrets. Something is wrong with this picture…should be looked in to. Thanks for the post.

I think there’s a lot misunderstanding about this concept. It’s not the apocolyptic occurence that one might think it is by reading this post and these comments.

First, the attorney-client privilege is a rule of evidence that is invoked during adversarial proceedings. It is not an inviolate principle good in all times and places. And it is not absolute. During any trial a judge may decide that countervailing interests necessitate the disclosure of communications between a client and his attorney. The judge here probably reasoned that the historical value of many of these documents outweighed any 4-year old claim of privilege. Nonetheless, he still gave the clients the opportunity to opt-out.

Second, if any lawsuits were to spring from material in these documents the privilege would simply be invoked at trial and none of the material would even be allowed into evidence.

Finally, it is worth noting that the privilege is confined to the attorney and his client. If any of these documents were even seen by a third party the privilege does not apply.

I mean, really, it’s been known that the 9th Circuit contains a bunch of loons. Now it’s evident that the bankruptcy court on the west coast has fully followed suit (get it). I don’t think the concept of that one document called, what was it… oh yeah, the constitution, is known out west.

ted - this has nothing to do with attorney client privilege. These documents are the property of the clients, and they contain confidential and proprietary information of other companies that were never even clients of Brobeck. This property is being turned over to the government for public airing.

This is potentially damaging to so many people and so many companies in so many ways. The people behind this are very stupid and very dangerous.

“A. The Closed Archive is aware that your files are subject to attorney-client confidentiality and privilege, and that they will remain that way indefinitely.”

So, what’s the big deal?

This looks like a good idea to me.

Let’s just say this - the moment these documents are available I will do everything in my power to get access to them, and find information that will be relevant to a story. And everyone else will, too.

The big deal is that it is completely inappropriate to turn over the property of a client that has nothing to do with this situation to the government, and then make it public.

For the skeptics who say this isn’t a big deal, here’s one example of the work that Brobeck did (including for my own company) that should set off alarm bells.

Have you ever seen the documents for a stock offering? They are huge volumes of paper and include detailed information on the investors and officers including names, home addresses, shares held, social security numbers, and their SIGNATURES. Brobeck must have handled tens of thousands of stock and debt offerings. I believe they were #2 behind Wilson Sonsini for IPO’s represented in 1999. Just imagine the goldmine of personal data. Because of Brobeck’s prominence as a law firm, I believe this data would cover private and public stock offering documents from at least 90% of the VC’s in California.

Did Brobeck digitize the final copies of all these documents? Can anyone guarantee all that confidential information will be redacted or totally protected? It’s impossible–we must be talking about hundreds of thousands, maybe millions, of documents. And terabytes of data.

This is a privacy horror show. Every VC and CEO in the valley should be choking on their candy canes.

This is a fantastic idea.

Public knowledge of the Dot Com Era is not coming at the expense of these clients’ private records. It is coming at the expense of their default choice being to allow their private records to go on display. Which is fine. If this were to be an opt-in procedure, no one would go out of their way to have their private records included. In this case, where the records are from a time past, and where an unconventional result of a bankruptcy case results in something for the public good, this is totally acceptable.

The only data that this project shouldn’t be allowed to put on public display is the data sensitive enough for its owners to care about and protect from going there.

Eric - would you feel the same way if the government were to publish bank account statements for every citizen under the same rules? Forget any bias you might have against companies. There is a great deal of information included in these documents that pertains to third party individuals and companies. The “clients” supposedly being notified don’t necessarily have any incentive to protect that information. And what about clients that no longer exist? The people and companies that have personal information contained in those documents have no way of asking for it to be removed. In fact, they most likely won’t even know it’s happening.

Hey Assington,

Do you think anyone gives a rat’s ass about your opinion on how Netflix screwed you or if you think that someone publishing something is bad. People visit your site to see links to new sites. and that’s it. If you think your opinion matters on anything, you need to think again and just stick to giving links to new sites. Sorry if I sound too blunt. But please wake up from your dream.

Thanks
rt

To rt -

If you don’t like it don’t read it.
All the stories that Michael has posted so far, though not all directly related to Web 2.0 start ups are, in my opinion (and Michael’s evidently) likely to be of great interest to those also interested in Web 2.0.

I for one am glad this has been brought to my attention. Thank you Michael.

This appears to be a gross violation of privacy. How precisely does such a thing manage to come about? It seems someone should/would be around to say, “Hey this isn’t right.”

What’s gone wrong here?

I say do it, in fact where can I donate money to help it happen. A lot of these ‘dotcom’ companies were irresponsible and cost investors, a lot of whom were joe public, huge sums of money. The dotcom bust is a part of history and those responsible for the nonsense of that time should be on public record.

This is a lot more complicated than you seem to think, Michael. First, it’s not entirely clear who owns the files. While any intellectual property provided by the client that may have been necessary to the representation remains the client’s property, the work product performed by the law firm is the property of the law firm. When a client chooses to fire one attorney and retain another, the former firm typically removes all work product (usually research memos and client communications) from the file before shipping it to the new firm. Moreover, the former firm retains a copy of the entire file for itself (most states require retention of all files for at least seven years). I think the answer is that parts of the file are the client’s property, and parts of the file are the firm’s property.

Second, attorney-client privilege is not the same as client confidentiality. The privilege is a rule that pertains ONLY to communications FROM the client. For example, no firm could be subpoenaed to produce letters from their own client. The more general rule confidentiality rule is a rule of ethics with substantially more gray area. The ABA Model Rules of Professional Conduct are as follows:

While I don’t quite think this is a good idea, it is also not the end of the world, nor even unprecedented. After William Kunstler died 10 years ago, there was a bitter fight over who owned his files- although it was ultimately decided on rather dull issues of property law, the cases raised issues of confidentiality and publicity over client files. So far, I believe biographers and reporters have been given access to the files, but there is a plan (I think?) to archive all his old files in a museum (All in the archives, sorry- http://query.nytimes.com/searc.....ort=newest)

rt do you know how this whole blog thing works? as someone else said if you don’t like it don’t read it.

I can see this is a really stupid idea but if they are going to do it they should not make the public for 25 years and then it wouldn’t matter so much.

You are right, this is insane. As a family genealogist, the government makes me wait at least 70+ years just to get access to census records. Libraries and court houses keep a tight reign on their documents and records too. Public records are one thing, but records formally held by an attorney’s office are a whole other category. Someone is making a buck here, or it wouldn’t be happening.

What does it take for a former client to okay the release of their records? I’m sure dozens of third parties that were involved in the proceedings wouldn’t like to have their name out there, can they sue to stop this?

I agree with Michael; there’s no way this should happen. Making it anything but opt-in only is way over the line. My hope is that the courts will do what they typically do — kill bad ideas, such as this one.

Oh yes, and of course IANAL.

So, how, if I am not sure if some of _my_ personal information is in the archive, do I go about making sure that it is not?
If one of these dot coms (and I don’t know which used PBH) had a large contract with my company, and they chose to disclose that information in their app for an IPO, than my info may be disclosed. Should private individuals start a class action suit, to require that any information pertaining to them be actively purged? Should this be setup so that the defendants are every lawyer, law firm or judge (including appeals judges), and all their clients and family, have to actively opt out? If they choose not to opt out, then their personal info will be disclosed. If a notice is run in a local newspaper, have I meet my requirement for notification?

Yeah, this is gonna be absolutely ridiculous. Like Michael, I admittedly will consume every single document that is published, but I should -never- be given this opportunity. Wow

This is extremely absurd. I hope it gets slammed immediately.

hi…

after reading/perusing a great deal of the above quotes.. i’m sitting here laughing my ass off…

1st.. has anyone actually contact u of maryland, and the business archive project. i seriosuly doubt that you have, otherwise you might not be so excited!!

you guys love to pounce on rumours.

a good deal of the material that’s available will be redacted of ’sensitive’ information. this is the information that hasn’t been removed because someone opted out of the process.

to get access to the really good stuff, you pretty much have to be in academia (student/prof/research/etc..) with a reasonable compelling reason for access. however, there will be a pool of information for the casual user, but you could proably get more sensitive information for a good tech blog.

i’ve talked with the prof behind the system, he’s pretty reasonable!!

your milage might vary.

peace..

ps. the other thing to keep in mind.. the vast majority of any information in the files/project, will be well over five years old, relating to comanies that have long since cease to exist.

which gets to a point that alot of you have bitched about, the client. if the client of the law firm was a corporate structure, and the corporate structure disolves, and is no longer operational, the docs go to whoever the judge deems fit!!

peace.!!

I think it’s great that you’ve written about it to let people know. It’s totally absurd. I’m surprised, actually. Crazy.

Totally absurd: where are the rights gone if something like this is open to everyone through a website.

Hi folks,

I’m the professor responsible for this project, and looking back over the 30-odd posts above, there has been lots of mis-representation of what has happened so far and what we are proposing to do going forward.

Please: before you rant about how crazy and stupid this seems, read through the court order containing the methodology that will guide our efforts going forward - http://www.brobeckclosedarchive.org. There are important safeguards in place, and I, for one, am committed to honoring them. The idea that these records will be posted on a website tomorrow is bonkers.

And to those of you who think that you will simply be able to file a FOIA request to get access to these materials, guess again. Access will be strictly limited. Frankly, I wish more people could be granted access to these materials because I’m sure there’s much to be learned from the events they chronicle. But the court set the rules.

If anyone is interested in learning about what we’re actually doing, please feel free to contact me. Otherwise, take much of what’s been written here with a big lump of salt.

- david kirsch

hey guys…

regarding what prof kirsh has written. he’s on the level, and he’s an oncredibly nice guy to talk to when you can find him. he’s also pretty busy!!!

in talking to him, over 6 months ago, he was quite helpful.

but, as he stated, a lot of you guys haven’t bothered to even talk with him, much less understand that if a corp is disolved, the ip/papers don’t simply go to anyone (or org) who’s named in the docs.. this would be why the judge made the ruling to do what he did with the docs…

peace…

David also just posted over on my site (thanks again). I have many questions but I only made a quick review of the archive site and the court documents so far, so I will reserve them until I’ve had more time to review in more detail.

I am disappointed you didn’t make it clear in your comment, the perfect place to do it, that former Brobeck clients can still opt-out. And your website fails to link to the opt-out documents. It has the text, but there is no active URL:

“Q. What if I don’t want to participate? What can I do?
A. Pursuant to the Court Order, you may elect to Opt-Out of the Closed Archive by completing an Option Notice [link: option sheet]. At the time the Brobeck records are transferred into the permanent archive, you will receive a notice confirming that your wishes have been honored. There is no need to expedite your decision to opt-out; even after your records have been transferred into the permanent archive, you retain the right to opt-out later, at which time we will remove your records.
You may also be interested in obtaining a copy of your records for your own use. Please note that opting-out of the Closed Archive and requesting a copy of your records are separate decisions; you may choose to do one without doing the other. To request a copy of your records, please e-mail Prof. David Kirsch (dkirsch (at) rhsmith (dot) umd (dot) edu) for more information.”

(See here: http://www.brobeckclosedarchive.org/faq.html)

Why no link? Maybe you can re-post those opt-out documents. I am sure it wasn’t your intention, but the impression it gives is that you are trying to avoid a mass opt-out.

So for all you former Brobeck clients. It is NOT too late to opt out. I am a former client, and I know that my full name and social security number, and that off all my former investors and officers, are in several of the documents that I believe would appear in the archive.

Sam,

Can you explain what you mean “…much less understand that if a corp is disolved, the ip/papers don’t simply go to anyone (or org) who’s named in the docs.. this would be why the judge made the ruling to do what he did with the docs.”?

I have seen a corporation dissolution first hand, I don’t get what you mean. Brobeck didn’t just dissolve (and it was an LLP not a corp). The partners filed for dissolution but it was insolvent and couldn’t meet its debts. So creditors filed an involuntary Chapter 7 and then the bankruptcy trustee and the judge make a clear decision to allow this to happen. The UMD archive project reached out to the judge and trutee, not the other way around. This is not a typical practice for a bankruptcy (although it does happen). Normally I would expect that corporate records would go to whomever acquired those assets or be shredded.

Tom,

Thanks for pointing out the error in the text on the Brobeck Closed Archive website. The “link to” was my note to the webmaster and needs to be cleaned up. I’ll take care of that next week.

To be clear and on the record, I have no interest in preserving records that legitimate rightsholders do not want to have preserved. Period. I believe that individuals should control the fate of their electronic traces in the world. I have received “opt in” notices from several individuals, and these few records will be preserved, but that’s it as far as individuals go.

I am interested in saving the records of organizations that no longer have voice, either because they have failed or because they have provided no guidance about what to do with these records. In the case of Brobeck, we have a law firm that is no longer able to provide basic custodial service to its former clients, some of which may be historically important for our understanding of the rise of the internet. I don’t want those records to be lost simply because the default preservation setting for 1s and 0s is “do not save.” According to the court ruling, it will very hard for scholars to access these records, too hard I fear for many. But I figured that saving something, anything, from this period would be better than losing it all for sure.

Now, of course, organizations are made up of individuals so the records of organizations will contain information about individuals, some of which may need to be scrubbed by archivists for sensitive information, but I would argue that one’s history within an organizational setting is very different from personal history. And that’s a problem that professional archivists deal with every day, very capably.

Reasonable people may disagree with what we are trying to do. That’s fine. I believe that digital preservation deserves better than digging through bankruptcy filings to save scraps of the past. This is a debate that we should be having in kitchens and board rooms across the country. But for the moment, we’re having it here, 40 messages deep on a comment board. So be it. Hopefully, eventually, we will define a collective policy regime and associated technology that will allow us to preserve our digital heritage while maintaining privacy as needed (and, of course, legal confidentiality and privilege too).

Climbing down from my soapbox, let me give you a sense of where we stand today, Dec 2006. We have received opt out requests from approximately 400 former Brobeck clients, out of 26,000+ total client database entries. Obviously, these are the bigger clients. In total, approximately 10% of the records will be covered under “opt out,” a number that may rise slightly as time passes and more former clients avail themselves of their right to opt out.

Again, thanks for your interest and for reading this far. And thanks Sam, for being persistent in tracking me down. This is a far flung enterprise with many moving parts so it keeps us busy.

Best holiday wishes,

- david k.

What is all this abouT ??? weird !