Bernstein Shur Monthly – May 2018

Bernstein Shur Rolls Out Greatly Expanded Parental Leave Policy

Bernstein Shur is thrilled to announce its adoption of an industry-leading parental leave policy. This expanded policy provides 16 weeks of paid leave to all new parents (attorneys and staff members) regardless of gender. In particular, the policy removes any distinction between “primary” and “secondary” caregivers and provides equal benefits to all new parents as a result of birth, adoption or foster care placement. The policy provides all new parents with a great deal of flexibility as to how to use their paid leave time, and the policy benefits are immediately available when a new employee joins the firm.

Bernstein Shur’s Board of Directors unanimously adopted the policy after soliciting substantial feedback from all associates and other interested stakeholders. The firm is committed to supporting all of its employees through the various stages of their careers. This policy change is specifically aimed at supporting new parents during a particularly challenging period.

As a result of the expanded policy, the firm’s new parents will now have the option to take their leave (a total of 80 business days) any way they choose, as long as it is taken in the first year after becoming a new parent. For example, a new parent could be out of the office entirely for 8 weeks, and then return and take the remaining 40 business days of paid leave by working a three-day work week and getting two paid days off for 20 additional weeks. New parents will retain the ability to take up to an additional 12 weeks of unpaid leave.

“We believe this policy puts our firm in a leadership position on parental leave and we are proud to take this step forward in support of our new parents,” said CEO Pat Scully. “This allows them to focus on the early stages of parenting and to more gracefully and purposefully integrate the demands of work and home.”

“It is a particularly challenging time for attorneys when they become new parents and are first learning to balance the new demands at home with a challenging professional career,” said Joan Fortin, Shareholder, Director of Attorney Recruiting and member of the firm’s Board of Directors. “Our firm is always looking for better ways to support our attorneys through this part of their careers so we retain talented people and help them avoid the need to make a choice between family and career. Lower attrition is better for our clients, our people and our bottom line.”

Fortin continued, “This policy intentionally moves away from gender role stereotypes, which presume the mother will be the primary caregiver. We are supporting all our attorneys and staff with new families – not just women who become new moms.”

“Transitioning back to work after having a child is a pinch point,” said Kevan Lee Deckelmann, Shareholder and member of the firm’s Board of Directors. “We want our policies to convey our understanding of how difficult this transition can be. We strongly believe that getting this policy right benefits everyone by allowing them to organize their time the best way possible for their individual families. It decreases burnout and increases loyalty to the firm.”

The policy went into effect Monday, May 21, 2018.

Click here to watch the Channel 6 WCSH-TV coverage of this story.

Bernstein Shur’s Pro Bono Fellowship – A One of a Kind Program

On Monday, May 21st, Bernstein Shur began its 2018 Summer Associate Program.  This year we are joined by three Summer Associates:

• Daniel McCue from the University of Maine School of Law
• Lauren Pritchard from the University of New Hampshire School of Law
• Joshua Berg from The George Washington University Law School

Each year Bernstein Shur hosts 2-3 law school students from around the country who have completed their second year of law school. Students spend eight weeks rotating through our practice groups followed by a four week pro bono rotation which is spent working in-house with a legal-service provider of the student’s choice. The program, which is the only of its kind in New England, was created to enhance our summer associate program and expand our pro bono work in the community. At Bernstein Shur, pro bono work is about more than civic responsibility or a sense of duty; it is a way of life and a fundamental part of the firm’s culture.

We take pride in our community roots and seek out attorneys who are socially engaged and civic-minded. In addition to donating over 2,000 hours a year to pro bono causes, we’ve made a commitment to inspire up-and-coming attorneys to incorporate regular pro bono work into their practices.

For more information on this program please contact Bernstein Shur’s Director of Attorney Recruiting, Joan M. Fortin at jfortin@bernstenshur.com.

Law, Ethics and Keeping Your Practice Safe Seminar

Everything you wanted to know about your practice, law & ethics, but were afraid to ask.

Bernstein Shur collaborated with the ME Psychotherapy Facebook Group to host the “Law, Ethics and Keeping your Practice Safe” seminar on May 18th in Portland, ME. This educational seminar was presented by Bernstein Shur attorneys Ken Lehman and Molly Gilligan, who collectively spoke on the following topics:

• Dealing with attorneys and the courts – disclosure of records, authorizations, testifying and subpoenas.
• Duty to warn – assessing, handling and documenting risk of harm to self or others, issues concerning abuse and neglect reporting.
• Strategies to keep your practice safe – documentation to establish relationships with clients, issues concerning informed consent and confidentiality, treatment of minors and disclosure of minors’ PHI, and termination of treatment.

If you would like more information regarding this seminar, or would like to be included on the invitation list for related seminars in the future, please contact Ken Lehman at klehman@bernsteinshur.com or Molly Gilligan at mgilligan@bernsteinshur.com.

Bernstein Shur Business & Commercial Litigation Update

By: Daniel Murphy

A Massachusetts trial court has allowed the nation’s first enforcement action to proceed against Equifax in relation to a massive data breach that compromised the personal data of 143 million individuals.

The suit, which was brought by Massachusetts Attorney General Maura Healey, alleges that Equifax failed to take sufficient precautions to ensure that personal information and data would not be exploited by hackers. The suit also alleges that Equifax failed to provide prompt notice of the infiltration by hackers, who accessed private data through a public “dispute portal” available to consumers to submit complaints. Some three million Massachusetts residents were affected by the data breach, which took place from March, 2017 through July, 2017. As an initial salvo in the litigation, Equifax sought dismissal of the enforcement action, arguing that the Commonwealth’s claims were not plausible. While acknowledging that a data breach alone does not violate Massachusetts law, Judge Kenneth Salinger concluded that the Commonwealth plausibly alleged breach of data security statutes based on the failure to safeguard sensitive information and the failure to upgrade known security vulnerabilities.

Read more about this development here.

Planning an E-Discovery Strategy: The Five Phases of E-Discovery

E-discovery includes several distinct but interconnected phases. Each phase presents its own challenges and opportunities, and decisions made early in the process often will influence the options and costs in later phases. Below are the five broad phases of e-discovery that parties and attorneys should consider when planning their e-discovery strategy:

1. Pre-Litigation Information Governance

The best e-discovery strategy starts long before the complaint is filed. A party can ensure compliance and reduce its e-discovery costs through a comprehensive information governance and litigation preparedness plan, which includes knowing the company’s electronic systems and establishing data organization and retention policies. A strong foundation will allow a party to quickly identify sources of relevant electronically stored information (ESI), implement litigation holds, and streamline the entire e-discovery process.

2. Identifying, Preserving, and Collecting ESI

Once litigation becomes reasonably foreseeable, parties are obligated to identify and preserve relevant ESI and documents. Typically, this includes sending litigation hold notices and stopping auto-deletion programs, as well as possibly imaging data sources that are at risk of deletion. Relevant ESI then must be collected from custodial and non-custodial data sources, such as user files, e-mail accounts, laptops, and shared network drives.

3. Processing, Analyzing, and Reviewing ESI

Once ESI is collected, it must be organized and stored for searching, analyzing, and reviewing. Depending on volume, this may be the most time consuming (and expensive) phase of e-discovery. But technology exists that, if used properly, can help automate the process and reduce costs. Parties should make strategic decisions about how much time and money to spend reviewing (or not reviewing) documents.

4. Producing ESI

Relevant, non-privileged ESI should be produced to the opposing party in an appropriate format. Document productions can be made in a variety of formats, and parties should discuss early in a case about what format they will use in compliance with procedural rules.

5. Using and Presenting ESI

The light at the end of the tunnel. ESI produced by both sides must be analyzed based on the substantive issues in the case. The parties then must incorporate that ESI into their case strategy, including at depositions, with experts, and, ultimately, at trial.

To learn more about Bernstein Shur’s E-Discovery team and services, contact our team members Adam Prescott at aprescott@bernsteinshur.com or 207 228-7145, or Jack Woodcock at jwoodcock@bernsteinshur.com or 207 228-7115.