CloudNine Digital

By Catherine Ostheimer

In a packed room at Seyfarth Shaw’s offices in Chicago, eDiscovery, information governance and privacy experts exchanged points of view and insights at The Master’s Conference last Tuesday.

New ways of thinking about and managing short message/modern data, investigations, and data privacy were raised in a series of panel discussions. Some of the main takeaways from this industry community in the third largest legal market in the U.S. are provided below.

Getting Short Message Review Right

A panel titled “On the cutting edge of short message review” kicked off with a discussion on starting with figuring out what you have in the world of Slack, Teams, text, etc. data. Daniel Kelly of Sidley Austin shared that employees often say that they do not communicate via text for business conversations, but many do. He also shared that it’s important to view messages in a holistic way in the order that each message was delivered, across communications channels, to understand the chain of events and to stay ahead of the narrative related to a case.

Also, in regard to short message review for the financial industry, another speaker mentioned that there are new SEC data delivery standards issued in Jan 2023 that require that If your production will be de-duplicated, you must preserve any unique metadata associated with the duplicate files, make that unique metadata part of your production.

Dealing with eDiscovery Complexity in Investigations 

One discussion with a blend of consultants, law firms and corporate speakers identified ways to best manage investigations at a time that they are becoming more and more complex and expensive. Sunil Shenoi of Kirkland Ellis raised that investigation complexity has arisen due to three main factors: 1) investigations going global, requiring the need for experts everywhere, 2) data amount and types exploding in size, and 3) everchanging laws and regulations. To further expand on having to grapple with new data concerns, he remarked that 15 years ago, a team was required to only pull email for an investigation. Now, it’s not so simple. Others on the panel raised the rising tension being felt between maintaining individual’s data privacy rights, while also supporting a company’s right to review evidence related to an investigation.

Michelle Six, Kirkland & Ellis, offered up two tips when it comes to investigation and data. First, to reduce data complexity, lean in on defensible deletion policies. If you don’t need to keep data per a legal hold, retention policy, or regulatory obligation, get rid of it. Also, rely on technology to make the job easier. She believes that lawyers have an ethical obligation to know what technology can help to handle data more efficiently and to put it in place.

Whitney Becker, CBRE Inc., says you should first approach an investigation and determine at the outset whether there is a likelihood it will lead to litigation. In those circumstances, litigation counsel should be pulled in from the start, to offer benefits like only having to cull data once at the review stage.

Leveraging All Data to Tell the Story in eDiscovery

Taking on a common topic that surfaced throughout the day, the topic of an afternoon panel led by Rick Clark of CloudNine was focused on how to manage modern data effectively and efficiently in eDiscovery.

Paul Noonan, United Airlines remarked on the need to have your eDiscovery and data governance strategy linked and commented that there will be both risk and cost ramifications if you do not tie the two efforts together. Jay Carle of Seyfarth Shaw tied this point to how a company handles data coming from employee phones. He said that he sees prosecutors today being encouraged to see how much a company understands the governance of the use of mobile phones, and how Team/Slack chats, texts, etc. are used in business communications. He shared that it’s important to have and enforce policies on use of alternative forms of communication and have this part of a compliance audit schedule.

Jay also commented that it’s important to preserve linked attachments in modern short format communications, as such platforms are now frequently used to transmit and share documents. Ryan Tilot of Gunster shared that with so many ways available to communicate, he finds that custodial interviews are helpful to identifying all communication platforms being used related to a matter. About data authentication, Rick Clark cautioned that screen shots need to be reviewed carefully, as it’s becoming increasingly easy to fake text conversations.

Rick Clark also raised that it’s important to think about short message communications in the review stage as data, not documents, and that it’s easier and less expensive than you think to render this data in near native format to bring the data to life visually to tell the whole story when prepping for an investigation or potential case.

These were only a few summary points from an information-laden day. If you’d like to attend a future Master’s Conference, check out upcoming 2023 dates and locations. Also, if you’re interested in seeing the only solution available currently that can display a holistic view of all communications data in a near native review, contact CloudNine today.

Catherine Ostheimer is VP, Marketing at CloudNine and has been working in the legal technology industry for 8+ years.

By Kenneth Jones, Tanenbaum Keale LLP 

This article was originally published in LegalTech News on March 10, 2023.

E-discovery is a prime example of an area where legal technology/operations is seeing the challenges presented by legal professionals’ level of familiarity with computing options, particularly those technologies that form the dynamic changes in how professionals communicate.

A significant challenge in legal technology/operations is the level of familiarity with computing options—both established and forward-thinking applications and tools—especially those relating to the dynamic changes in how professionals communicate using the vast array of technologies present in our lives.

E-discovery is one example of this. As many try to wrap their arms around emerging technology areas which are all the rage (Chap GPT, artificial intelligence, etc.), it tends to mask similar long-standing challenges, such as the adoption of predictive coding or records management programs, which reduce overall eDiscovery cost and risk.

But historical problems do not prevent time from inexorably marching on as it relates to human communication. The Pony Express, telegraph machines, telephones, U.S. Mail and countless other mechanisms Exit Stage Left as technology drives change.

Specifically, a wide collection of various “new” forms of communications (Slack, Teams Chat, SMS, Whatsapp, other instant messaging, video content like Zoom/Teams calls, content stored in workflow/task management platforms applications like Github, ServiceNow, Salesforce and others) are increasing leading players in the business connectivity ecosystem.

Rick Clark, Sr. Director of Sales Enablement and Strategy for CloudNine and Co-Founder of the Masters Conference, notes the increased complexity of legal communication processes: “I remember when email created a major shift in business communications and necessitated a new process in legal discovery. Now, I see custodians starting conversations in email, switching to Microsoft Teams, then to WhatsApp and ending in a phone call. Tracking that conversation as evidence demands approaches designed with multi-platform interoperability in mind.”

But what certainly is new are the myriad issues facing law firms and legal on how to deal with “new communications,”  These considerations can perhaps be grouped in three buckets:

• Essential Services Elements
• Policy Ramifications/Opportunities
• Legal Service Opportunities

Essential Services Elements—Basic E-Discovery Considerations

The dynamic nature of legal work processes, and the communications mechanisms driven by this, create unique litigation hold and e-discovery challenges. For example, are mechanisms in place to preserve Slack or Microsoft Teams chat threads?  Are text messages sent by employees cataloged? Are threads in client portals or workspaces retained in a retrievable manner?

Issues here, in many ways, are fundamentally different from those in more established communications methods. One example is data categorization, also known as the metadata describing an element of data. In email (hopefully), users are filing emails into folders. In document management systems, it’s generally required that documents are placed into workspaces relating to clients or matters.

Classification is not limited to email and documents, of course. “New communications” often feature different types of taxonomies. Issue tagging is one. As is the actual type of metadata (application, embedded, file system, user added, etc.) which are identifiable characteristics of communications.

Clark also notes “Personal and work related communications often tend to meld together on an employee’s device. Significantly, many seemingly non-business-related applications are increasingly in play. These include Facebook Accounts, Instagram, YouTube Channel, TikTok and, importantly, Geolocation data.”

It is generally understood that the legal profession has developed generally accepted procedures driven by litigation hold and other regulatory requirements for document and email data/metadata. But it is not surprising that emerging communications tech is still reacting to respond. This is of course common to almost all areas of emerging tech (e.g. ethical issues in the use of Artificial Intelligence, lack of governance in cryptocurrency, etc. being other strong  examples).

So, what law firms need to do within the e-discovery space to develop capabilities to service their clients in the traditional areas (identification, preservation, collection, processing, review and production) within these new communications areas. Here are some pointers.

Utilize a single or fewer platforms which can ingest the various modern data sources, reducing issues relating with accessing data in silos.

• Strive for simplicity and speed. The easier it is to process and work with these new data types, the more likely this data will be intelligently and appropriately processed.
• Be very mindful of security. Walls and controls which exist in core applications (restricted access by practice groups or clients within a DMS for example) should be honored when working with and processing data sources like SMS, Slack, IM, etc. also.

Policy Ramifications/Opportunities—Legal Operations

Not surprisingly, law firms and corporate legal departments are now driven to develop guidelines on what type of communication should and should not be permitted (and supported). Why?

One reason is that, unfortunately, despite employee education programs and the constant stream of information in the public domain about security, a small number of maverick employees or business partners still will prioritize completing a task over reputational welfare or risk.

But that’s not the only consideration—other rationale for protective tools to be leveraged is present. For example, there are often legitimate needs to deploy tools enabling extra-sensitive information—think M&A, medical reports, financial/banking data—to flow in a more secure manner. Data flows via these channels also must be accounted for and included in collections/analysis, despite the capability for example of employees to “burn” messages sent via these ultra-secure platforms.

But technology-based communications mechanisms and feature sets are not the only elements the legal profession should consider with respect to modern communication. Applying legally accepted principles relating to the retention of information, supporting the ability to retain subsets of data as required by litigation holds, and executing this required governance against  apps and data outside the purview of a law firm’s managed application portfolio is a significant challenge.

So how does one tackle this?  Clark notes, “Ensuring procedures to properly retain ‘approved communications’ from within messaging apps/tools—and attempting to prohibit unauthorized employee deletion of the same—is crucial. As is the capability to efficiently ingest and analyze this data when needed.”

Legal Service Opportunities—Business Development

Once procedural elements of coping with modern communications within the e-discovery realm are in place, one can consider applying these capabilities to drive revenue growth.

Opportunities are present for law firms to apply this expertise to their service model.  For example, many clients may reasonably benefit from repurposing of this work—e.g., legal counsel to develop internal guidelines governing areas like litigation holds, technology use guidelines, retention policies, etc. for modern communications.

To cite one element of this challenge, today, many organizations block email applications like Gmail or Hotmail from their browser and via written policy. Arguably, the same approach might be applied to tools like Whatapp, TikTok, or Instagram which seem fairly unrelated to work. And, even for “approved” chat mechanisms (like Teams, Git, Slack, ServiceNow, Salesforce and others), retention periods, the execution of litigation holds and development of an efficient ingestion “on ramp” into common e-discovery platforms is necessary.

Summary

Dealing with all these new data types and issues is not easy. But don’t sweep it under the rug. Without a doubt, modern communications will become increasingly more important within the e-discovery discipline—if not the dominant consideration—in the not-too-distant future.

Kenneth Jones serves as Chief Operating Officer of Xerdict Group LLC, a wholly owned technology subsidiary of Tanenbaum Keale LLP, which provides sophisticated, SaaS-based legal matter management systems and other use cases applied to automate common legal workflows.

By Catherine Ostheimer

Conversations on and off the session stage at Legalweek 2023 signaled that industry innovation is now on a fast track. Whether it’s due to the advent of new tech permeating our daily lives (OpenAI launched plugins for ChatGPT for commonly used apps like Slack, Open Table, Expedia on March 23), the influx of a new generation of tech-savvy lawyers, or the COVID-created hybrid work life that isn’t going anywhere, real change is happening in legal and evidence of an evolution taking place was in full force at the Hilton Midtown in NYC last week.

Here are our observations on legal innovation from Legalweek 2023.

Change is no longer a choice

In their recap of the state of the industry, ALM’s Heather Nevitt and Patrick Fuller indicated that digital transformation is no longer a choice for law firms and legal teams. Business and outside pressures are demanding better, more predicable outcomes and law firm revenue models that move away from the billable hour, which point to new ways of getting work done.

Zach Warren of Thomson Reuters in a talk on legal technology being a firm’s superpower, indicated that tech use is not just a cost play, but can provide a much-needed way to differentiate in a competitive market.  Katie Orr, the global head of practice innovation at Orrick, commented in a legal services delivery talk that something has changed when it comes to lawyers adopting new technology. “There’s been a widespread realization within law firms, especially now that they are more resource constrained, that repeat work needs to be minimized and made more efficient with tech, to free up space to focus on higher value work.”

This greater embracing of tech also shone through in our discussions with companies, many with whom we met for the first time. Engaged conference attendees not only attended sessions in droves–more so than in past years–but also asked excellent questions in our meetings and appeared eager to learn how tech can save them time and money.

Generative AI makes AI mainstream—there’s no going back

There’s been talk of applying AI to legal work for years, but at this Legalweek, the discussions seemed different. In an emerging technology session on AI chat, Jim Wagner, Lean Law Labs, and formerly of Seal Software, talked about the speed at which ChatGPT is gaining traction. A visceral demonstration of this fast-tracked tech adoption was when he asked how many in the room had used ChatGPT in some capacity recently. More than 75% of the roomful of attendees raised their hand. While extolling ChatGPTs virtues like ease of use and ability to structure data rapidly, he also offered up a few cautions and referenced a March 24th WSJ article on ChatGPT which discusses why some companies like JP Morgan are abandoning it.

Wagner’s advice: don’t expect an immature technology like ChatGPT to always provide the right answer. Also, be sure to manage how your team or outside provider is handling your data in ChatGPT, with the preference being to maintain data in silos so that no one else can gain access to it, rather than it being used to build a large language model (LLM.)

Modern data can no longer be ignored in the discovery process

In an emerging technology educational track talk, the challenge of dealing with emerging data types like Slack and Teams data and text messages was raised by Deeanna Fleener, Integreon. “Any communications your company or firm’s employees have created since COVID will contain short message data—you can no longer argue it away in litigation prep,” she said.

Dealing with the growing types and volume of information coming from newer ways of communicating in investigations or discovery work can be daunting. Rick Clark, CloudNine recommends thinking of modern data types found especially in mobile phones in eDiscovery “as data, not docs” when reviewing these data. They are just points of metadata that have to be analyzed in a near-native fashion.” Clark also shared that since people today often switch from texting, to using Slack, to making a phone call, it’s critical to find a technology solution for eDiscovery that helps you to see the whole conversation in a cohesive way. (Note: CloudNine is the first to market a solution for handling short message data in eDiscovery efficiently, CloudNine Analyst.)

Change management requires a systematic approach

Several educational sessions throughout the week included discussions on change management. ILTA’s president, Joy Heath Rush, in a talk on “Change Management is Legal Technology,” offered this advice on how to be successful with new tech rollouts. “Lawyers don’t hate technology, they hate complexity. Make sure the product is easy to use, and that you make it as easy as possible to start using it.”

The language used in technology and policy rollouts should also be chosen carefully. Stephen Bainbridge of Egress raised the heightened risk all organizations have today due to the way people communicate changing, with Slack, Teams, email and texts dominating work communication channels. “Hacking is up, and security training is needed. Security creates friction, something lawyers do not like. When it comes to rolling out new security processes, use language like “Strongly suggest”, rather than mandate a change.”

In the “Using tech as a superpower” discussion, Vedika Mehera, from Orrick, mentioned the importance of selling the idea of a new solution early on. “Start by asking questions. Listen to what people find challenging in their day-to-day work and keep them involved throughout the process.” Mehera also suggested using the early adopters of a new solution as those to champion use throughout the firm. “Have them demonstrate in a department call how they used the technology and what they are getting out of it. The message is more credible coming from a peer rather than the project team lead.”

Thinking back on the many discussions we heard last week, it’s clear that the legal community is moving past what Gartner’s hype cycle model refers to as the trough of disillusionment and has entered the slope of enlightenment when it comes to embracing technology. It’s a thrilling time to be in legal tech, and we look forward to continuing to be part of the conversation and being a partner to law firms and legal in-house teams wanting to address the changing legal landscape head on.

If you’d like to learn more about our solution for modern data and eDiscovery, or to find out about where we are speaking next, contact us here.

Catherine Ostheimer is VP, Marketing at CloudNine and has been working in the legal technology industry for 8+ years.