Q: What happened to Brobeck, Phleger & Harrison?
Explanations differ, but the long and the short of it is that Brobeck entered liquidation in February 2003. The firm continued to exist on a shoestring until September 2003, when it sought protection in United States Bankruptcy Court. Since then, the Brobeck estate has been administered by Ron Greenspan, a court-appointed trustee. The trustee’s account of what happened to Brobeck is available.
Q: What is the Brobeck Closed Archive?
A. The Brobeck Closed Archive is a secure digital repository authorized by order of Judge Dennis Montali, United States Bankruptcy Court, North District of California, San Francisco Division on August 9, 2006. The “Order Granting Motion for Order (A) Authorizing the Abandonment of Brobeck’s Digital Records...” and related exhibits are available.
Q. Why is the Brobeck Closed Archive important? Why is the Library of Congress interested in the records of a failed law firm?
First, and foremost, if no action is taken to preserve these records, they will be lost to history forever. Unlike copies of paper records that can sit in a basement or attic for decades, digital records need to be continually cared for. No one knows for sure what should happen to these historic materials, but the Library of Congress and its partners in the National Digital Information Infrastructure Preservation Program want to avoid irrevocable destruction of the records without proper consideration of the interests of all concerned parties.
Second, curators and the public agree that these digital records document one of the most extraordinary episodes in the history of capitalism, the explosion of internet technology companies in the 1990s. Reasonable people differ about how to interpret what happened during this period, but nobody questions its historic importance. These records may offer future scholars – and through them, the general public – an unparalleled window into the events that shaped the business culture of the day. Even if research access to these records is decades away, preservation demands intervention now.
Third, the Library of Congress and its partners have been tasked by the U.S. Congress to develop a national strategy for digital preservation. Our partnership must chart the course enabling digital repositories to safely care for non-public digital objects. Public trust must be a critical element of any successful preservation strategy. By demonstrating our ability to acquire, secure and protect a collection of sensitive, confidential records, we hope to establish the basis for secure preservation of future digital artifacts.
Q. Who is supporting this project?
A. The Brobeck Closed Archive is a project supported by the National Digital Information Infrastructure Preservation Program of the Library of Congress. The partnership includes dozens of leading libraries and archives from around the country dedicated to the preservation of historic digital materials.
The Brobeck Closed Archive is one of eight partnerships in the larger Library of Congress network. Our project team is based at the University of Maryland in College Park. Participants include:
  • Robert H. Smith School of Business, a global business school known for high-impact management research and nationally-ranked undergraduate and graduate programs in management education.
  • Gallivan, Gallivan & O’Melia. A leading consulting firm in the area of digital discovery and litigation support, GG&O is serving as the official custodian of the Brobeck records on behalf of the bankruptcy estate.
  • Morrison & Foerster, LLP. A prominent global law firm with more than a thousand attorneys in nineteen offices, MoFo has served as pro bono advisor to the University of Maryland regarding policy questions arising from the creation of the Brobeck Closed Archive.
  • Ropers Majeski Kohn & Bentley Lawyers advised the University of Maryland during the bankruptcy process.
  • Advisory Council. The project has benefited from leading experts in confidentiality, privilege and legal history, many of whom offered their formal support for our endeavor in declarations before the bankruptcy court.
Many others have also supported this effort, including the members of the Brobeck Liquidation Committee , Chapter 7 trustee Ron Greenspan, his attorneys at Hennigan, Bennett & Dorman LLP , McNutt & Litteneker, LLP and various faculty and staff at the University of Maryland and the Library of Congress.
Q. This is the first I've heard of this – have affected individuals been contacted?
A. Yes. As directed by the Court, the Estate sent written notice to every former client in Brobeck's master client list. This list was generated by the Liquidation Committee that oversaw the unwinding of the firm, and while it may have been accurate at the time, addresses have surely changed and not all clients may have received the mailing. For that reason, the Estate supplemented the mailing with an advertisement in the Wall Street Journal and the San Francisco Chronicle. If you should have received notice, but for whatever reason did not, you may download a copy here.
Q. Who will have access to my files?
A. Access to your files will always be restricted to a small number of archivists or scholars who have signed strict non-disclosure agreements—of the kind that Brobeck would have required from its outside vendors. This access will always take place in an on-site, institutional setting, and only for specific, enumerated purposes set forth in the Methodology approved by the Court. Employees of the Archive will have access to conduct technical maintenance—digital files require a surprising amount of upkeep as formats change and become obsolete. The Court also allowed approved scholars to access the collection in a secure, monitored environment according to rules modeled on those used by the United States Department of the Census. Most importantly, archivists will only allow aggregated or redacted data to leave the secure area. The Archive will also log search queries and document retrievals to ensure that everyone is acting within the narrow boundaries of their approved access.
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. 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.
Q. How do I know that once transferred, my information will not be available to the public?
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. We will not release confidential information to the public, and there are many procedural and technical safeguards in place to protect your data. For instance, scholars seeking to use the archive must provide an up-front plan for aggregating or anonymizing data before their research can be approved. These protections are the result of a two-year research study supported by the Library of Congress' National Digital Information Infrastructure Preservation Program. The project has been assisted by an Advisory Council of leading experts in confidentiality, privilege and legal history, many of whom offered their formal support for our endeavor in declarations before the bankruptcy court.
Q. How is the Closed Archive kept secure?
A. The Brobeck data is currently held by Gallivan, Gallivan & O'Melia, an electronic discovery consulting firm which has securely handled data involved in legal discovery for many high-profile clients. The Brobeck data is stored on locked premises owned and operated by GG&O, and is completely segregated from other data. Consistent with their standard security measures, off-site access is limited to secure, monitored VPN connections by GG&O staff members explicitly authorized to access the Brobeck data. After the data is transferred to the permanent archive, equivalent physical security measures will be implemented. Although the archive may use VPN channels to provide access to other scholarly institutions, it will not permit any access outside of an archival brick-and-mortar setting.
Q. I've never heard of anything like this, how did it come about? Is there any precedent for this?
A. The Brobeck Closed Archive came about to prevent the imminent destruction of historically valuable records left orphaned by Brobeck's dissolution and bankruptcy. While we believe this effort is unprecedented in scale and in the scope of options offered to former clients, there are in fact several important precedents for the archival preservation of confidential, privileged records. Client records have been included in donations made to the Library of Congress and other archives by lawyers such as Joseph Rauh, the prominent civil rights lawyer, or Kenneth Simpson, the New York lawyer and politician. Courts have also been involved in the disposition of sensitive client records following a partnership bankruptcy, particularly in a case involving the patient records of a bankrupt medical practice. The court ordered the medical records to be held indefinitely by a local hospital under a set of guidelines allowing patients to retrieve the records as necessary.
Q: Who is responsible for managing this project?
The Project Director for the Digital Archive of the Birth of the Dot Com Era is Prof. David Kirsch, Assistant Professor at the Robert H. Smith School of Business at the University of Maryland in College Park. If you have any questions that are not covered in this FAQ, you may contact Prof. Kirsch at dkirsch (at) rhsmith (dot) umd (dot) edu.