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Tom O'Connor

DOS and DON’TS of a 30(b)(6) Witness Deposition, Part Four

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, What is the Future of the Legal Technology Conference?  Now, Tom has written another terrific overview regarding the state of legal technology conferences titled DOS and DON’TS of a 30(b)(6) Witness Deposition that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into six parts, so we’ll cover each part separately.  The first part was last Monday, the second part was last Wednesday and the third part was last Friday, here’s the fourth part.

Common Mistakes

Here are some of the common mistakes associated with preparation for 30(b)(6) witness depositions:

Failure to Thoroughly Review the Deposition Notice

The rule requires that it describe the matters for examination with reasonable particularity. Thus, the witness need be prepared only for what is described. The deposing party may ask a witness questions that are outside the scope of the matters for examination but counsel for the deponent should be prepared to object and make clear that any answers provided are not binding on their client.

Designating the Wrong Representative or Failing to Designate Multiple Representatives

30(b)(6) requires that the organization “designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf.” In addition, the organization may set out the matters on which each person designated will testify and note that testimony is limited in scope to the issues of which they have personal knowledge.

If the potential witness does not have such personal knowledge it may be better to designate another witness or use multiple witnesses to discuss specific matters. The point is that the party upon whom the notice or subpoena is served is required to designate which individual or individuals are appropriate to testify on which topics.

Because testimony generated during a deposition has the potential to be admitted into evidence at trial, a witness testifying about a subject outside his or her direct knowledge could lead to damaging testimony at trial. Costly delays from resolving these issues at trial are one factor in the proposed rule changes discussed above.

Inadequate Preparation of Witness

Rule 30(b)(6) requires that a corporation do more than merely gather documents and produce a witness with general knowledge about the issues in the case. It must produce a witness who has been prepared.

But the rule does not require perfection; the mere fact that a witness can not answer every question on a certain topic does not mean that the corporation failed to comply with its obligation.

Still, the duty is significant and has even been described by one court as “onerous.” because, in the words of the Court, “… we are not aware of any less onerous means of assuring that the position of a corporation, that is involved in litigation, can be fully and fairly explored.” Prokosch v. Catalina Lighting Inc., 193 F.R.D. 633, 638. (D. Minn. 2000)

We’ll publish Part 5 – Specific Strategies to Consider – on Wednesday.

So, what do you think?  Have you ever been a 30(b)(6) deponent?  Or been involved in preparing one for testimony?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

DOS and DON’TS of a 30(b)(6) Witness Deposition, Part Three

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, What is the Future of the Legal Technology Conference?  Now, Tom has written another terrific overview regarding the state of legal technology conferences titled DOS and DON’TS of a 30(b)(6) Witness Deposition that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into six parts, so we’ll cover each part separately.  The first part was Monday and the second part was Wednesday, here’s the third part.

Proposed Rule Change

The current Rule provides little guidance on how much notice is required, how a 30(b)(6) deposition counts towards the limit and duration of depositions, the presumptive limit on the number of deposition topics and the process for objecting to, and resolving disputes about, the scope of a notice.

With that in mind, the Advisory Committee on Civil Rules began considering a variety of changes to the Rule beginning in April 2016. The amendment eventually put forth by the Committee says that “[b]efore or promptly after the notice or subpoena is served, and continuing as necessary, the serving party and the organization must confer in good faith about the number and description of the matters for examination and the identity of each person the organization will designate to testify.”

Public comments on the proposed changes closed in February of this year and many major corporations voiced concern over these proposed changes. Over 100 organizations (including Ford, Microsoft, and Comcast) submitted a joint public comment letter to the committee objecting to the new language.

Specifically, these organizations voiced the following concerns:

  • An organization should be able to retain the exclusive right to identify Rule 30(b)(6) witnesses and the subject matters these witnesses will testify about without input from opposing counsel.
  • The rule needs to provide more guidance. For example, the language requiring counsel to confer about “the number and description of the matters for examination” is unclear and fails to lay out with specificity what the parties need to address prior to the deposition.
  • An amendment forcing the parties to confer would increase, rather than decrease, discovery disputes.

The Committee felt, however, that the amendment will not increase discovery disputes, but instead reduce these issues and streamline litigation. Their belief was that having the parties confer with each other prior to the deposition may help bring issues to the forefront so the court can handle the matters promptly rather than the current method of interrupting a deposition or even a trial to handle arguments about testimonial issues then.

The Draft Committee Note addresses some of the concerns that were raised and specifically reiterates that the “named organization ultimately has the right to select its designees,” and notes that “the amendment does not require the parties to reach agreement.”. The Advisory Committee’s official position paper can be found here. If approved by the Committee on Rules of Practice and Procedure, the Judicial Conference, and the Supreme Court, the Amendment would go to Congress for final approval and become effective on December 1, 2020.

We’ll publish Part 4 – Common Mistakes – next Monday.

So, what do you think?  Have you ever been a 30(b)(6) deponent?  Or been involved in preparing one for testimony?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

DOS and DON’TS of a 30(b)(6) Witness Deposition, Part Two

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, What is the Future of the Legal Technology Conference?  Now, Tom has written another terrific overview regarding the state of legal technology conferences titled DOS and DON’TS of a 30(b)(6) Witness Deposition that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into six parts, so we’ll cover each part separately.  The first part was Monday, here’s the second part.

Initial Considerations

Notice that the rule requires simply that the responding party must designate someone to testify on behalf of the business entity and not that the requesting party can specify the identity or even the position in the organization of the witness. It is also commonly interpreted by responding parties that they are not necessarily required to produce for deposition the most knowledgeable person in the organization but rather, anyone of their choosing who agrees to testify.

Since this means the witness will testify as the organization’s knowledge, not his or her own personal knowledge on the subject of the deposition, the obligation to educate the witness on the requested topics falls to the organization.

The key for the requesting party to ensure specificity during the deposition is the crafting of the notice of deposition. It should include specific topics to be covered at the deposition which are “reasonably particular” as the rule states but not be so detailed that objections can be raised during the deposition that a question or questions being asked was not part of the deposition notice.

The timing of the 30(b)(6) deposition is important. If taken at the beginning of the case, it may helpful to pinpoint issues for further discovery, such as detailing policies or procedures that can help define requests for production.  But a deposition taken later, say after document productions, can fill in gaps or answer questions raised by the documents themselves or even identify further fact witnesses to answer those questions.

Once the deposition has begun and it becomes clear that the witness is not able to testify about the topics in the deposition notice, a decision must be made to establish either that this is not the proper  witness to testify on the requested issues or merely demonstrate that the witness is not knowledgeable on the issues. The difference is whether you intend to seek a motion to compel the appearance of a different witness or alternatively preclude the organization from introducing testimony on these areas at trial.

On occasion, the witness is evasive or even outright hostile. This may be simply because the IT person designated to testify is not well prepared as noted above. But it may also be that the witness is not happy about having to testify, feels they are overqualified to testify and are being forced to deal with people who know less than he does or, in some rare cases, is part of a corporate document management strategy designed to specifically preserve and produce documents in only one specific manner.  Here’s a link to the outline of a CLE session presented by Chris Ralston, a senior Commercial Litigation Partner at Phelps Dunbar in New Orleans, and me, dealing with such a hostile witness.

We’ll publish Part 3 – Proposed Rule Change – on Friday.

So, what do you think?  Have you ever been a 30(b)(6) deponent?  Or been involved in preparing one for testimony?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

DOS and DON’TS of a 30(b)(6) Witness Deposition

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, What is the Future of the Legal Technology Conference?  Now, Tom has written another terrific overview regarding the state of legal technology conferences titled DOS and DON’TS of a 30(b)(6) Witness Deposition that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into six parts, so we’ll cover each part separately.  Here’s the first part.

Introduction

30(b)(6) depositions are a large part of many ediscovery matters with many considerations about how to work with a witness, get the proper information and best practices for framing and answering questions.

But before we look at some of those issues, let’s take a look at the rule itself and define our terms so it’s clear what we’re talking about.

What is a 30(b)(6) Deposition?

Federal Rule of Civil Procedure 30(b)(6) (found here) permits a party to notice or subpoena the deposition of “a public or private corporation, a partnership, an association, a governmental agency or other entity and must describe with reasonable particularity the matters for examination.”

In response, the named organization “must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify.” Once noticed, the designated witness “…. must testify about information known or reasonably available to the organization.”

In this paper, we will take a look at several aspects and best practices regarding 30(b)(6) depositions, including:

  1. Initial Considerations
  2. Proposed Rule Change
  3. Common Mistakes
  4. Specific Strategies to Consider
  5. Conclusions

We’ll publish Part 2 – Initial Considerations – on Wednesday.

So, what do you think?  Have you ever been a 30(b)(6) deponent?  Or been involved in preparing one for testimony?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

What is the Future of the Legal Technology Conference?, Part Three

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Thinking Like a Millennial: How Millennials are Changing Discovery.  Now, Tom has written another terrific overview regarding the state of legal technology conferences titled What is the Future of the Legal Technology Conference? that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into three parts, so we’ll cover each part separately.  Part one was Monday, part two was Wednesday, here is the third and final part.

My Observations Regarding Legal Tech Conferences

Are we left, then, with no true educational conferences?  Not entirely, as the Georgetown Law Advanced EDiscovery Institute offers a great value of 2 days of intense educational sessions every fall, albeit in one narrow field only and Prex makes a similar strong educational showing . But by and large, bar associations have taken up a large part of the slack, mostly at local or regional level.

The leader in that category is the ABA TechShow. Now in it’s 34th year and held in Chicago every year since 1989, TechShow has always had an emphasis on assisting attendees learn technology skills. In the same category are state and local bar association shows such as the Louisiana Bar Solo and Small Firm Conference, the Wisconsin Bar Solo and Small Firm Conference or the Illinois Bar Solo & Small Firm Conference, all of which offer a similar focus on skills necessary for the competent practice of law.

There is, however, another category of conference which has become increasingly predominant as traditional conferences fall off.  These are user conferences, which fall into two distinct types, general user group meetings and product specific user meetings.

The undisputed leader of the first category is ILTACON, the annual technology conference for members of the International Legal Technology Association. This 4-day conference (which is also open to non-members) once concentrated on large firms but now brings together legal technologists from small to large sized law firms, corporate and government law departments, academia and the G100 firms. Although it too has begun to drift more and more into the area of vendor speakers (this year’s conference has a Litigation Support Day with three organizers, one of whom is from legal technology giant Relativity and is also serving as Moderator for the day’s activities), I think it is no stretch to say that the 140 + sessions at this conference offer a deep dive into every facet of legal technology that is unparalleled in the conference world.

Other user groups like Sedona, CLOC, LMA and most especially the unfortunately often overlooked AALL, offer educational conferences primarily to members and remain true to the educational paradigm, while the area of user groups for specific products has both exploded and expanded to provide general educational sessions beyond the scope of just their own product information. Chief among these are the Clio Cloud Conference, Infusion by Exterro and the long standing Ipro Tech Show.  But, the one that stands head and shoulders above the others is Relativity Fest.

Offered every year in Chicago, Relativity Fest has thousands of attendees from 29 countries, participating in 17 workshops and over 180 sessions with more than 300 speakers.  The content covers everything from hands on training and certification in the Relativity product line but also numerous sessions on basic legal subjects with 19 subject qualifying for CLE credit at the 2018 conference. Much of the credit for that latter category goes to David Horrigan, Relativity Discovery Counsel and Legal Education Director, who does yeoman’s work overseeing the non-product specific sessions including an annual Judges Panels that is on my must attend list every year.

So, are big tech shows dead?  Well, I’d say as consistent sources of educational content, they are trending down.  Certainly, they are still a factor but exhibitor attendance is down and as we saw in New York this year, more vendors will focus on offsite activities in which they can completely control content. The trend seems to be for those with products or services to sell attending and networking but not exhibiting. The shows more specifically focused on users, specific practice areas or even user groups will continue to grow. I also predict that live streaming for both speakers and attendees, such as the U of Florida has done for several years now, will grow in prominence.

The big struggle will be to get the decisions about what is important to develop in the hands of the consumers: that is the attendees.  In his column noted in the previous part, Bob Ambrogi referenced legal scholar and economist Gillian K. Hadfield who argues for how to reinvent law for a global economy in her book, Rules for A Flat World.

Her recommendations? First, “Don’t leave it to the lawyers.” She recommends rather that the conversation needs to include those who are “paying the price of inadequate, complex, and costly legal infrastructure.”

In other words, let’s get the clients involved in deciding what is most important at a tech show. The product users, the people who argue the motions (there are some litigators still left out there, right?), the folks who process the data and review the documents.  They vote with their wallets and attendance figures will tell us who the winners are.

Is anyone listening?

So, what do you think?  Do you attend legal tech conferences and do you think attendance has proven valuable to you over the years?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

What is the Future of the Legal Technology Conference?, Part Two

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Thinking Like a Millennial: How Millennials are Changing Discovery.  Now, Tom has written another terrific overview regarding the state of legal technology conferences titled What is the Future of the Legal Technology Conference? that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into three parts, so we’ll cover each part separately.  Part one was Monday, here is the second part.

Legal Tech Conference Observations from Other Commentators

As I mentioned, a number of renowned legal commentators about the state of legal technology conferences all year. Dennis Kennedy and Tom Mighell took on the question in one their regular podcast earlier this year entitled The Future of Legal Tech Conferences. They had several interesting observations, including Tom’s comments that the entire notion of how we “consume” information has led to our notion of a conference changing with a differentiation between educational conferences vs those that emphasize the nuts and bolts of the practice of law. To that point, Dennis noted that conference attendees today expect something they can personally relate to rather than mere academic discussions.

Another respected commentator in the field, Bob Ambrogi, weighed in back in February with a column he entitled, Legal Tech For The Legal Elite: Observations Of Two Conferences.  Bob took a look at two conferences he just attended, Legalweek, or what he called “the conference formerly known as Legaltech” and Inspire.Legal, a new “unconference”. He was left, as he put it “… wondering how legal tech and innovation became the domain of the legal elite, and how true change will come about in law without more voices at the table.”

As Bob elaborated, these conferences were “… predominately by, for, and about the roughly 10 percent of the legal industry dominated by the world’s largest law firms and corporations.” The result is a roster of speakers that “… came mostly from large law firms … or from large corporations …  or from major vendors that provide products and services to large firms and large corporations, most prominently in the area of eDiscovery. “

He noted the glaring absences of “… the roughly 90 percent of lawyers who practice outside the large firm/large corporation ecosystem.” as well as “… those the legal system is failing ….” what he described as “… the lower economic levels of the market [which] are being underserved or not served at all.”

And while it is true that some shows with a strong vendor presence still maintain an educational integrity that is to be commended, shows such as the annual U of Florida Law E-Discovery Conference and perennial regional conferences by Todays General Counsel and the Masters Conference, the fact is that at least in the field of eDiscovery, the offerings are grim.

As prominent eDiscovery expert and prolific writer Craig Ball wrote in a column in May of this year:

“Look at the agenda of any major e-discovery conference (a few survivors litter the field).  Count the hours devoted to practical e-discovery skills that support the finding and turning over of relevant evidence.  Now, count the hours devoted to telling lawyers how to limit discovery, challenge discovery, assert proportionality, protect privacy, enforce data security, manage data breaches, delegate discovery to vendors, cut costs or cede their roles to robots.  Again, not trivial topics, but out-of-proportion to the ever-greater need for lawyer competency in information technology and electronic evidence.”

We’ll publish Part 3 – My Observations Regarding Legal Tech Conferences – on Friday.

So, what do you think?  Do you attend legal tech conferences and do you think attendance has proven valuable to you over the years?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

What is the Future of the Legal Technology Conference?

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Thinking Like a Millennial: How Millennials are Changing Discovery.  Now, Tom has written another terrific overview regarding the state of legal technology conferences titled What is the Future of the Legal Technology Conference? that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into three parts, so we’ll cover each part separately.  Here’s the first part.

Introduction

I was recently asked to write about the upcoming ILTACON19 conference and you can see my full comments here. But that discussion leads naturally to the larger question about the current state of legal tech conferences.

We know for example that Legaltech® quietly discontinued their West Coast event several years ago and that their NYC event has had vendor presence drop dramatically over that same time frame.  At the same time, events which always proudly billed themselves as being free of vendor participation, notably the ABA TechShow and ILTACON, now have numerous vendor speakers and vendor sponsored agenda events.

What exactly is going on here?  A number of renowned legal commentators have been asking the same question all year.  In this series, I’ll take a look at some of their observations and provide some of my own and analysis of legal tech conferences out there today.

We’ll publish Part 2 – Legal Tech Conference Observations from Other Commentators – on Wednesday.

So, what do you think?  Do you attend legal tech conferences and do you think attendance has proven valuable to you over the years?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Thinking Like a Millennial: How Millennials are Changing Discovery, Part Five

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys, which we covered as part of a webcast on June 26.  Now, Tom has written another terrific overview regarding the impact of millennials on eDiscovery titled Thinking Like a Millennial: How Millennials are Changing Discovery that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into five parts, so we’ll cover each part separately.  Part one was last Tuesday, part two was last Friday, part three was Monday and part four was Wednesday, here is the fifth and final part.

Conclusions and Recommendations

The favorite tools of millennials are in use now.  We know them. We are trying to adjust to them. But perhaps the problem is not the tools. We must acknowledge the cultural shift in work flows and communication methods influenced by millennials as more employees work remotely, including from home, than ever before. Then we must be prepared to design eDiscovery tools to deal with these changes.

Millennials will quickly and easily embrace new apps. They will employ collaboration and innovation to yield more effective workflows. Responding to those changes requires proactive planning not reactive responses.

Companies need to design and establish data retention policies and deletion protocols around these new tools. Engage custodians now to understand how they are communicating and collaborating at work. Understand that overlooked applications which you may consider informal mobile apps can, in reality, be the main form of communication for many employees.

Service providers need to develop new strategies and processes for collecting data from these new tools.  These new tools may be will be less uniform and more diversified in their deployment and this implementation may vary widely within departments of the company. This will require extensive collaboration with IT departments in order to understand how their tools are implements

Data growth is expanding at an enormous rate. In 2018, DOMO reported that “over 2.5 quintillion bytes of data were created every single day and it estimated that by 2020, 1.7MB of data will be created every second for every person on earth.  And, a recent report in the Visual Capitalist found the following:

  • 500 million tweets are sent daily
  • 294 billion emails are sent daily
  • 4 petabytes of data are created on Facebook daily
  • 4 terabytes of data are created from each connected car daily
  • 65 billion messages are sent on WhatsApp daily
  • 5 billion searches are made every day

By 2025, it’s estimated that 463 exabytes of data will be created each day globally – that’s the equivalent of 212,765,957 DVDs per day!

Source: Visual Capitalist

As technology advances, millennials will continue to blur the lines between personal and professional communications and the demand for faster and better tools and applications that are integrated with both work applications and personal social media will continue to create more and more data. This combination will place even more stress on the eDiscovery components of preservation and collection.

Companies and law firms will need to proactively identify and address all these new data sources and combinations by designing new internal policies while working with vendors to develop new collection tools.  Getting ahead of the technology curve is the best way to limit exposure to litigation risks and reduce the inevitable costs related to eDiscovery.

So, what do you think?  Have the habits of millennials impacted eDiscovery for your organization?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Thinking Like a Millennial: How Millennials are Changing Discovery, Part Four

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys, which we covered as part of a webcast on June 26.  Now, Tom has written another terrific overview regarding the impact of millennials on eDiscovery titled Thinking Like a Millennial: How Millennials are Changing Discovery that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into five parts, so we’ll cover each part separately.  Part one was last Tuesday, part two was last Friday and part three was Monday, here is the fourth part.

Impact of Millennials on Legal Technology and eDiscovery

What does all this mean for the legal space and eDiscovery in particular? One commentator wrote:

The modern workforce is changing every single day.  Technology is advancing so rapidly it can be hard to keep up.

Millennials are now redefining the office. How?   Remote working, geographically distributed teams, the growing popularity of online collaboration tools—all new work methods based around technology innovations. In short, in contrast to older generations, millennials generally prefer to use apps on their phones and mobile devices to communicate instead of voicemails and phone calls.

And that’s the reality of our business world today. We already use these technologies, now we need to learn to how treat them as normal business practices.

Source: Malcolm In the Middle

When we talk about issues of mobility, social media, texting and collaboration, we are talking about the reality of modern business communications not some futuristic technology. And the reality of identifying and preserving those communications can be problematic.

An article on the SHRM (Society for Human Resource Management) website entitled Collaboration Apps Make E-Discovery More Difficult made the point succinctly when the author discussed the inability of employers to fully see and preserve all chat app messages, pointing specifically to a lawsuit involving a former Uber employee who alleged a colleague used a chatroom to harass. Data stores of that nature can make eDiscovery difficult, time-consuming and incredibly expensive.

How prevalent are texts?  81% of the American population texts every month.  With a total population of 320 million that means roughly 259 million people text every month.  With 8.5 billion texts per day, that means an average of 32 texts per person per day.

Of the people who text, roughly 70% uses emojis and an estimated 10% use emojis only!  Emojis have become extremely widespread with more than 700 million emojis are used every day in Facebook posts alone.  The problem is that forensics tools don’t always capture emojis. As long ago as 2016, forensics examiners were bemoaning the lack of tools to capture and analysis emojis and the problem has grown larger since then.

We’ll publish Part 5 – Conclusions and Recommendations – on Friday.

So, what do you think?  Have the habits of millennials impacted eDiscovery for your organization?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Thinking Like a Millennial: How Millennials are Changing Discovery, Part Three

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys, which we covered as part of a webcast on June 26.  Now, Tom has written another terrific overview regarding the impact of millennials on eDiscovery titled Thinking Like a Millennial: How Millennials are Changing Discovery that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into five parts, so we’ll cover each part separately.  Part one was last Tuesday, part two was last Friday, here is the third part.

Drivers for Millennials’ Thinking Today

Voting Studies

So, where do we learn more about this new generation? Most of the information we have on millennials comes from studies of their voting patterns and buying habits. In the first area the general assumption is that they are social loners who don’t vote. An estimated 31% of eligible people ages 18 to 29 voted in the 2018 midterms, according to the Center for Information and Research on Civic Learning and Engagement (CIRCLE). This exceeds participation from the same age group in the 2014 midterms by about 10 percentage points but is still far below the number that voted in the 2016 presidential election, when 51% of eligible millennial voters cast a ballot.

In the 2018 midterm, a poll released the week of the election by the Institute of Politics at Harvard Kennedy School, found four out of 10 adults under 30 said they would “definitely vote” and in Texas and Georgia, early turnout by 18-29 year olds was up by a whopping 500 percent in the days before the election, according to The Independent.

But the fact is that millennial voting rates have never exceeded 50%, even in 2018. According to a national poll last fall, just two-in-ten of America’s young adults consider themselves “politically engaged and active.” So far, only  41% of millennials ages 18-29 are certain they’ll vote.

But are they really isolated social loners intent only on gaming and texting? Why such low turnout when in the 1800’s 80% turnout was commonplace?

Maybe the reason isn’t the generation but the society. In the mid-1800s, transcendentalist Margaret Fuller envisioned the individualistic reality millennials now inhabit. Fuller believed that “American culture was best served by the influence of the self-cultivated individual.” If individuals prioritized themselves, America would fulfill its destiny as a truly democratic nation.

But as those ideal became reality, as individualism increases, each successive generation since World War II participates less in civic duties and governmental expectations. And so to the they are political, millennials are moved by measures championing personal choice—not society, country or planet. Only half of millennials see themselves as patriotic, and less than a third consider themselves to be environmentalists. Just 19% of millennials see themselves as generally trusting of others, compared to 40% of boomers. But we support gay and interracial marriage, abortion and marijuana legalization substantially—and sometimes exponentially—more than other generations.

Political engagement has been replaced by more direct social engagement  A 2014 report on the impact of millennials revealed 87% donated money to an organization that supported a cause they supported.

Millennials do have a desire to make an impact for a good cause, they simply don’t see voting as the best mean to accomplish that.

Millennials in 2016 were significantly less likely to vote or try to influence others vote than were the ’80s generation in the 1987 survey, or the first wave of postwar baby boomers in 1967. BUT millennials display about the same level of political interest as the youngest generation did in 1987, and millennials contact local government and work with others in the community at essentially the same rates as did youth in the earlier surveys.

So, if the 1980s generation that was once considered apathetic is now, in middle age, actually more politically active than earlier generations were at that same stage in their lives then we can expect the same for millennials. The “participation gap”, which actually just appears under closer scrutiny, to be a reluctance to vote, might just indicate that “kids these days” – the millennials – just won’t participate more actively until later in life.

What does that mean for technology usage? That’s where marketing studies come in.

Marketing

We all “know” that millennials are mobile consumers tapping their mobile devices for hours each day and we’ve all seen or heard of research that indicates they spend more time interacting with their phones than other people but at the same time have short attention spans.

This may be because, as mentioned above, millennials appreciate tech as something they saw grow up while they did. They’ve seen numerous networks and devices come and go. Instagram, Pinterest, Snapchat and Tumblr, MySpace, Vine, Google+.

Given their comfort level with technology, they tend to favor services that offer practicality, utility, convenience and even fun. In short, millennials value technology when it delivers value.

Common characteristics of millennials that marketing studies have revealed include that they:

  1. Will Embrace New Technology
  2. Want to Create Opportunities for Good Causes
  3. Want Product to Support their Creativitity
  4. Want Innovation
  5. Want Product to “Speak their Language”
  6. Want Flexibility
  7. Want Personable Company
  8. Want Passionate Company
  9. Want to Be Valued as “Real”
  10. Want to Be Recognized

What we see in these studies is that the perception as being the next “me generation” is really a focus on personal rather than social validation.  Millennials are the largest single generation in history and have become the largest influence in social and technological habits.  They value utility, effectiveness and relationship over price and are undaunted by technological innovation.

We’ll publish Part 4 – Impact of Millennials on Legal Technology and eDiscovery – on Wednesday.

So, what do you think?  Have the habits of millennials impacted eDiscovery for your organization?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.