Many companies train employees to enter phrases such as ‘confidential’ or ‘attorney work product’ and copy counsel when sending sensitive emails so that the information is protected under attorney-client privilege. In the event the company becomes embroiled in litigation, counsel would see such phrases and flag the messages as privileged, preventing them from inadvertently being produced to the other side during discovery.

However, while it’s a good idea to include such phrases in messages, it’s not always enough in the court’s eyes to designate it as privileged. Also, a computer’s auto-save feature may have saved versions of an email that didn’t include such phrases, leaving them unprotected. Both of these issues arose during Oracle America, Inc. v. Google, Inc.

“For each email being composed, Google’s system was saving multiple drafts of it. That’s probably something that you wouldn’t want to do,” says Jude A. Fry, a partner with Fay Sharpe LLP. “Then when the company got sued, there were, for this single email, multiple versions, and the only version put on the privileged log was the final one.”

Smart Business spoke with Fry about how companies can ensure privileged information sent through email is protected.

What happened in the Google case?

Oracle claimed Google’s Android smartphone platform infringed its patents, and the two entered into litigation. An email that included language that could be harmful to Google in the patent case was placed on a privileged log, a document describing items that can be withheld from a case under attorney-client privilege.

That internal email was sent to the vice president in charge of the Android smartphone platform at Google, copying Google’s counsel in the ‘to’ field. The email was captioned ‘attorney work product’ and ‘Google confidential.’

While the final version of the email was placed on a privileged log, auto-saves of the email were inadvertently produced to Oracle’s counsel during discovery. Since the auto-saved drafts did not include the phrases ‘attorney work product’ or ‘Google confidential,’ they were not caught by electronic scanning mechanisms.

Google demanded that Oracle return the emails under the clawback provision of the protective order, claiming the emails were privileged. Oracle returned the emails but filed a motion to compel their production. The district court ordered that the emails be reproduced.

How were the auto-saved drafts of the email not coded as privileged?

When doing the search, counsel was likely using key words to see what was coded as privileged. There were probably thousands of emails produced. Counsel was able to locate the final email because, by that point, the author had put the phrase ‘attorney work product’ in the email’s body and added the attorney as one of the recipients. However, in other auto-save versions those phrases weren’t included, so they didn’t get flagged.

What’s disturbing is that the system saved nine versions during the time it took to type it up. Why is it necessary to save all of those versions?

Consider only saving emails that are sent, and configure your email system to delete all other versions. Also, understand how your email system works — whether auto-drafts are saved, what happens to these drafts, where they’re stored. Figure this out now and not when a case is pending.

How should a corporate employee set up an email to make sure it is privileged?

Train your employees to direct the email to legal counsel in the ‘to’ field and salutation. State in the email that information is being given to or sought from the lawyer so that he or she can give legal advice. Also, include in the message that it is being prepared in anticipation of litigation, at the direction of an attorney, to further the provision of legal advice. Include headings such as ‘attorney work product,’ ‘privileged’ and ‘confidential.’ However, these headings alone will not make an email privileged, so limit the substance of the email to the legal issues.

People write a lot of emails but often don’t think about someone other than the intended recipient reading it. When doing business though email, consider who could possibly read the message and approach it accordingly. It’s a good practice to think carefully before you put something in writing.

Jude A. Fry is a partner at Fay Sharpe LLP. Reach her at (216) 363-9113 or jfry@faysharpe.com.

Insights Legal Affairs is brought to you by Fay Sharpe LLP

Published in Cleveland

It’s a good time to refinance a commercial real estate loan or purchase a property.

“The market has become more competitive. The big retraction of lender funds in 2008 and 2009 that resulted from increased reserve requirements and unfavorable market conditions has flipped. More banks, insurance companies and other financing sources are back in the mix and looking to lend as the economy continues to improve,” says Kimberly Rysyk, a senior vice president in the Real Estate Lending Division at Bridge Bank.

Smart Business spoke with Rysyk about the state of the lending market and opportunities that are available.

How is the current commercial real estate lending market?

It’s favorable for borrowers, as lending sources increase and interest rates remain low. Many banks have re-entered the market as their financial positions have increased along with the economy. The increase in sources has created competition, resulting in a decrease in spreads. This has translated into a drop in rates. The bottom line is that there are more lenders looking for the same deals.

What about lending for new projects?

Finding lending sources for new projects remains difficult but improved through the latter half of 2012. Cash equity of 25 to 35 percent is standard and projects with higher risk may approach 50 percent. Certain housing markets warrant new construction as demand for new housing and rents increase. Lenders are interested in those builders and developers who have been able to sustain themselves through the recession and have cash to invest. There is financing out there for speculative construction as well, provided the cash equity is sufficient and the buyer is financially strong.

For owner-occupied businesses it can make sense to find property that’s not necessarily in a top location, but in a place where they can have a brand new building suited to their specific needs that works based on debt coverage, cost of the project and cost of the land.

Is it a good time to invest in such properties?

Historically low interest rates and real estate prices still depressed from the Great Recession have created some opportunity. There has also been a slow but steady improvement in the labor market and a leveling of vacancies and rents, which are positive signs for the economy. This is a good time to invest in commercial properties if you know your market.

In San Francisco, for example, payroll tax incentives for businesses that relocate are making some areas attractive that previously were considered B-rated. This has led to big companies, such as Twitter, Zynga and Salesforce.com, to relocate to areas that were not considered desirable but are now looking up. Other companies or investors can take advantage of the depressed values here, refurbish or rebuild, and greatly affect the end value of the project. There are lenders out there who can recognize the end value and will lend on the resultant cash flow, rather than the current depressed value.

What should you consider when choosing a bank?

Strength and longevity are key. Has the bank been in the commercial real estate business through the downturn? Were they able to navigate changes in the market? An experienced banker will look at your past and future projections, uncover the pros and cons, and help you determine the best solution for your needs, whether it be building new, renovating an existing building or refinancing your current debt.

What concerns do you have for the future?

A significant swing in interest rates is concerning. Properties that were refinanced at extremely low rates may have difficulty finding refinancing sources at maturity. This concern would be heightened if the facility were not amortized or if property values do not rise sufficiently. The European financial crisis, for example, has had an effect on companies that do business on a global scale. This type of uncertainty affects the stock market, which has a strong bearing on the continued strength of the economy. Finally,  federal regulators are considering increasing the reserve requirement for real estate loans. A significant increase could chase many lenders out of the market once again.

Kimberly Rysyk is senior vice president, Real Estate Lending Division, at Bridge Bank. Reach her at (408) 556-8392 or kimberly.rysyk@bridgebank.com.

Insights Banking & Finance is brought to you by Bridge Bank

 

Published in National

On November 28, the 2012 Midwest Social Media Summit will be held at Executive Caterers at Landerhaven in Cleveland, OH. This one-day-conference will offer tips and insights from social media experts and top business leaders who will help you reconsider your strategy or validate your approach.

For more information and to register, click here.

And as a special bonus to our Smart Business readers, we're giving away five FREE tickets to the event! To enter the contest, simply do one of two things:

  • Visit the Smart Business Twitter page and follow us. Then just send out a tweet that says, "I don't want to be anti-social. I want to attend the 2012 @Smart_Business Midwest Social Media Summit!"
  • Visit the Smart Business Facebook page and like us. Then post to the page, "I don't want to be anti-social. I want to attend the 2012 Smart Business Midwest Social Media Summit!"

We'll draw the winners on Monday, Nov. 19.

For additional information, please contact Anne Hydock at ahydock@sbnonline.com or (440) 250-7041.

Published in Akron/Canton

Caffeine, panda and penguin are terms that seem unrelated to most businesses, but for digital marketers they have induced flurries of action and emotions ranging from pride to panic. These are the code names given in the past few years to three major updates of Google’s website search ranking algorithm.

Businesses that were hit by these updates typically suffered losses in Google rank from being in the top three on page one to getting buried on page 50 or beyond, search engine traffic dropping by more than 70 percent overnight and significant losses in revenues. Each update created a fundamental shift in how Search Engine Optimization tactics either benefitted or harmed a business’s ability to be found — and more importantly, found at the top of the results — in Google searches by their target customers.

“Search Engine Optimization and Marketing are dynamic and rapidly changing specialties that businesses need to keep pace with,” says Kevin Hourigan, president and CEO of Web design, Web development and online marketing agency, Bayshore Solutions. “The key to staying ahead of the curve is to have a comprehensive and connected strategy with your marketing, website and SEO.”

Smart Business spoke with Hourigan about how to keep your online marketing and SEO driving top search engine results, leads and sales growth for your business.

How do I stay ahead in SEO?

The recent SMX Advanced Conference in Seattle, one of many Web industry educational events, offered practical insight and in-depth education on the latest search marketing trends, technology and best practices. One session featured a Q&A with Matt Cutts, Google’s most known insider and spokesman on search quality and algorithm matters. This very popular session revolved around the impact of Google’s latest algorithm update, called Penguin, and what kinds of SEO behaviors and tactics are being either rewarded or demoted in their search engine rankings as a result.

This scenario of face-time with Matt Cutts has been featured at search industry conferences for many years. While the tactical details keep changing, the central message Cutts delivers is the same: Google continuously seeks to return the highest quality and most relevant results to people for the keywords they use in a search.

As SEO practitioners of varying ethical orientation develop practices for attracting high search rankings and traffic for their client’s websites, Google’s algorithm adjusts to keep those results relevant and offer credible answers for searchers. What was once seen as a SEO best practice could now be a very real detriment. So it is essential that the person you entrust with the SEO for your business is not only a competent tactician, but is up to date with today’s best practices.

Why isn’t covering the SEO basics enough?

The SEO building blocks of appropriately using of keywords, metadata and link strategy used to be the complete tactical toolset, but are now just the first steps. In a very simplified nutshell, three recent major Google algorithm updates addressed these ‘Quality of search’ experience issues:

  • Caffeine: Focused on recency or ‘freshness’ of information available, incorporating rapidly updated content such as Facebook and Twitter posts. This heralded a new tactical approach to Social Media and SEO.

  • Panda: This focused on the quality of the user experience, including page design and user interface, website content quality seen from human versus algorithmic ‘eyes’ and site usage metrics that signal usefulness and popularity of a website with searchers. This caused a paradigm shift for SEOs to balance tactics with design, development and audience communication or consumer psychographics measures.

  • Penguin: Focused on quality of content and particularly on devaluing websites containing linking schemes, duplicate content and using blog and article networks that post low-quality content with commercialized links. This creates a major change in the kind of linking tactics a business can successfully use and significantly changes content marketing distribution and syndication throughout the Internet.

These algorithm updates increasingly emphasize that implementing SEO in a silo is a sure path to online marketing failure. Your SEO experts now need to be Web strategy experts. They need to have a strong understanding beyond classic optimization of all your marketing elements including how they interact and how to strike an ongoing balance among them to align with search and marketing best practices.

Where does this fit in my overall sales and marketing strategy?

There are many technical complexities and best practices to stay abreast of in SEO and online marketing. That said, it is essential that your SEO implementation is driven by a strategy that is connected with your Web design, website functionality, customer service and audience communications strategies both online and offline.  Be sure that any Web marketing partners clearly communicate the tactics they use on your behalf, and that all your online tactics promote the best possible user experience of your brand and business.

The people in your Web audience are more important than search engine crawlers because they are the ones who can get excited about your brand, share your message, lift your legitimacy in today’s search engines and become your customers.  As we are seeing through recent search algorithm updates, technology is enabling search engine crawlers to ‘see’ and evaluate experience more and more like their human website-visiting counterparts. So the best way to win the SEO game is to present a Web experience that wins the confidence, trust and business of your customers.

Kevin Hourigan is the president and CEO of Bayshore Solutions. Reach him at (877) 535-4578 or http://www.BayshoreSolutions.com. For a snapshot of Bayshore Solutions Web marketing methodology, visit: http://www.bayshoresolutions.com/about-bayshore-solutions/methodology.aspx.

Insights Web Design, Development & Internet Marketing is brought to you by Bayshore Solutions

Published in Florida

NEW YORK (CNNMoney) -- Google and rooftop solar power company SolarCity announced a $280 million investment deal Tuesday, the largest such deal for home-based solar power systems in the United States.

The investment will give San Mateo, Calif-based SolarCity the funding to build and lease solar power systems to a 7,000 to 9,000 homeowners in the 10 states where it operates.

Founded five years ago, SolarCity has 15,000 solar projects around the nation completed or under way. Customers who wish to have the company's solar system installed at their home can pay for it outright, but most choose instead to let SolarCity retain ownership of the equipment and rent back the use of it through monthly solar lease payments.

As SolarCity's financing partner, Google (GOOG, Fortune 500) plans to recoup its investment over time through those lease payments.

"We hope to be seen as a model," said Rick Needham, Google's director of green business operations.

Needham wouldn't elaborate on the exact terms of the deal, but said "these investments are designed to earn us a good return on our capital."

War veterans go solar

Funding arrangements like this are not uncommon in the energy businesses, but they have previously been restricted mostly to utilities and a handful of banks with specialized industry knowledge.

Google's entry into this type of financing is both a sign that more companies may be interested in funding alternative energy ventures and a nod to the fast-growing market in leasing residential solar panels.

"Google is out in front on this," said Nathaniel Bullard, an analyst at Bloomberg New Energy Finance. "It's a sign of confidence in the space."

Google likes to experiment with clean energy investments -- witness last year's wind farm investment -- but the SolarCity deal marks its first move into the residential market. SolarCity is one of a handful of companies that lease solar panels to homeowners.

The idea behind leasing is to keep things as simple and cheap for the customer as possible.

In SolarCity's case, the customer signs a multi-year agreement with the company and begins writing a monthly check to the firm that's ideally 10% to 20% percent lower than what they were previously paying for their monthly power bill.

SolarCity then handles the rest -- everything from purchasing and installing the panels to claiming the various tax credits offered by the federal, state, and sometimes even local governments.

Eliminating the often hefty upfront costs for buying a solar system, as well as handling the maintenance and tax issues, has been a boon for the industry. Nationwide, the number of homes installing solar has gone from under 10,000 annually in 2006 to nearly 50,000 in 2010, according to the Solar Energy Industries Association.

"The biggest constraint is financing," said SolarCity chief executive Lyndon Rive.

Generous government subsidies are the main reason the economics for solar work in the United States. Between federal, state and local incentives, up to 50% of the cost of a solar system can often be subsidized.

The government is funding this industry because it hopes that creating a market will foster technological innovation in the space, driving down the cost of solar panels to the point where they are competitive with fossil fuels.

Rive hopes more companies will follow Google's lead and use some of the trillions in cash they have stockpiled to invest in the clean-energy market.

Google may well be getting a return on its investment, but the company also sees an advantage in promoting cheap, renewable energy. Its server farms eat up massive amounts of electricity.

"Energy drives our businesses, and we want our energy to be clean," said Needham. "Over time renewable energy will be cheaper than fossil fuel. We're doing what we can to make that happen faster."

Published in National