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Tom O'Connor

Why Does Production Have to be Such a Big Production?, 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, Understanding Blockchain and its Impact on Legal Technology, which we covered as part of a webcast on March 27.  Now, Tom has written another terrific overview regarding production challenges and what to do about them titled Why Does Production Have to be Such a Big Production? that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

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

Load File Failures

Problems with productions have plagued us for years and none are more prevalent than load file errors. I recall a consultant in Seattle nearly 20 years ago who spent 2/3 of his times cleaning up Summation load files for clients. And the problems haven’t decreased as technology has improved.

Shawn Huston of LSP Data Solutions ( www.lspdata.com) recently told me that 2/3 of the load files he sees in productions have errors. Why? Remember my previous comment about communication? Shawn says that:

One of the biggest issues I see is parties agreeing to production specifications without understanding what they are agreeing to. A classic example is the more technologically sophisticated party requesting tiff, text and load files as a production format and the other party agreeing without realizing what that means and the process necessary to do it correctly.

We also frequently see productions that don’t have the corresponding metadata fields to aid in filtering and searching the production sets, but then counsel becomes frustrated when they can’t accurately search for dates, recipients, file names or other useful metadata fields.

So, what seems to be the problem?  Well once again let’s turn to eDiscovery Grand Master Craig Ball for an explanation. In his wonderful 2013 article, A Load File Off My Mind, which is as relevant today as it was then, Craig explains that:

More commonly, load files adhere to formats compatible with the Concordance and Summation review tools.  Concordance load files typically use the file extension DAT and the þ¶þ characters as delimiters, e.g.:

Concordance Load File

Just as placing data in the wrong row or column of a table renders the table unreliable and potentially unusable, errors in load files render the load file unreliable, and any database it populates is potentially unusable.  Just a single absent, misplaced or malformed delimiter can result in numerous data fields being incorrectly populated.  Load files have always been an irritant and a hazard; but, the upside was they supplied a measure of searchability to unsearchable paper documents.

What are some common load file errors?

Mismatched line numbers: Each line in a load file corresponds to a single document. Thus, the number of lines in a load file must match the number of documents being imported. If they do not match, a common cause is an extra line break in the load file.

Field Formatting Errors:  Mismatched date formats (1/1/19 vs Jan 1 2019) and field length, that is a field in the database structure is only 6 characters long but the data being loaded is longer than that

Delimiter errors:  Comma and semi-colon are commonly used delimiters but if a comma appears in some text being loaded …say “Apple, Inc”, it may be interpreted as a delimiter in the wrong place.  Pipes ( a vertical line) are an excellent example of a once common delimiter which can be read as another instruction by some SQL and .Net databases.

Encoding: Some programs prefer a certain background computer language. Many older databases for example preferred Unicode Standard (UTF-1, UTF-7, UTF-8, UTF-EBCDIC, UTF-16, UTF-32) or ASCII. Importing data from a database that is not consistent with the database you are using may lead to problems.

Other load file problems that may occur include:

  • Overlaps with document or Bates numbers: Documents that come from different sources in a case may have Bates numbers that are repetitive or have some portion of their sequence that overlap with each other.
  • Page number difference: The number of pages in the load file may differ from the actual page count of the document images themselves, typically because of single page vs multi page image discrepancies.
  • Uploader at incorrect stage: An error message that the loading process is not working smoothly, usually when the screen display shows that you are on one step of the upload, but the uploader recognizes it’s actually on the next stage.
  • Timeouts on reading data error: The upload has stopped, either because of an internal issue or an interruption in internet connection.
  • Encountered non-separator: Typically a typo in the load file and the load has stopped.
  • Multiple native files: Multiple files with the same name as a document present in the native path, often a native file and an image file with the same name.
  • Conflicts with a previous loaded image: The load file is pointing to multiple images for the same document page and the conflict must be resolved.
  • Error with image reader: Usually means that the uploader could not read the image file.
  • Error finding load file or directory: Most often occurs when the user is trying to upload from a network but the upload tool is either defaulting to a local drive or the user doesn’t have rights to the network.

We’ll publish Part 4 – Recommendations for Minimizing Production Mistakes – next Monday.

So, what do you think?  Have you experienced problems with document productions in eDiscovery?  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.

Why Does Production Have to be Such a Big Production?, 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, Understanding Blockchain and its Impact on Legal Technology, which we covered as part of a webcast on March 27.  Now, Tom has written another terrific overview regarding production challenges and what to do about them titled Why Does Production Have to be Such a Big Production? that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

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

Redaction Issues and Confidentiality Considerations

One of the most common technical mistakes lawyers make involve issues with redactions – there are frequent stories that make the news regarding lawyers publishing documents that were improperly redacted.  Redaction issues are also the most common error in document productions in eDiscovery as well.  There are a variety of issues associated with redactions and they have considerable impact on a lawyer’s ethical duty to confidentiality.  Let’s take a look.

Image Redaction Issues

Some of the more common mistakes I see involve redaction issues on images. And they go back years. In 2009, the TSA released a manual on the Internet that had not been redacted properly. In 2013, a Chicago lawyer was reprimanded when he failed to ensure that personal information was redacted in federal student loan collection actions he filed on behalf of the U.S. government.

In 2014, a Kentucky lawyer received a public reprimand for, among other misconduct, failing to redact his client’s social security number in bankruptcy filings he made on her behalf. Also in 2014, The New York Times reportedly failed to properly redact a PDF file of leaked National Security Administration documents and inadvertently released the name of an NSA agent.

In 2018, a reporter investigating an SEC settlement with alleged fraudsters downloaded from the federal PACER database an affidavit from one of the defendants in the matter. The PDF file contained about 100 pages of financial transactions that were blacked out in the PDF file. But when the affidavit was copied and pasted into another application’s text file for uploading, the black redaction boxes vanished, revealing all the private financial information that was supposed to be hidden. A clerk at the federal courthouse where the document in question was filed said that the party filing the document was responsible for ensuring that it was properly redacted.

Also, in 2018, the school district in the Parkland, Florida high school shootings case, apparently didn’t properly redact a document regarding the alleged shooter, which contained confidential information about him.  A Florida newspaper reported that the method used “made it possible for anyone to read the blacked-out portions by copying and pasting them into another file,” which the newspaper did — drawing a contempt threat from the judge presiding over the criminal case.

More recently, lawyers for President Trump’s former campaign chairman, Paul Manafort, apparently failed to redact a federal court document properly, permitting the blacked-out text to be viewed “with a few keystrokes.”

Clearly, redaction issues on images are common. Common mistakes here include:

  1. Failing to “burn-in” the redaction on the image
  2. Not updating or re-OCRing the text files to match
  3. Providing un-redacted native files
  4. Failing to redact certain metadata
  5. Improperly using redaction software

Other Redaction Issues

The last point above involves issues for documents that have been generated in a software and then either converted or printed before redaction.

The most common type of conversion involves saving a word processing document to PDF. How do you best handle redactions in that process? Here’s a few tips:

  1. Edit out sensitive information BEFORE converting.
  2. Be aware of any metadata that may carry into the PDF file. PDF conversion deletes MOST metadata but some may transfer (eg, Comments in Word)
  3. Use non-text PDF … image only
  4. Use the most current version of Adobe

Sometimes redaction involves paper. Hard to believe but true.  Some attorneys still use a dark marker to manually cover over confidential information. Much like the Manafort case mentioned above where a simple color change in an electronic document didn’t completely hide text, using a marker on paper may also fail.

In a 2015 article, “The Perils of Redaction: Simple Steps to Protect Confidential Information,”, Mark Crandley, a partner in the litigation department of Barnes & Thornburg in Indianapolis, wrote that  “many scanners are sensitive enough to perceive covered words even when the naked eye cannot.”

Confidentiality

Lawyers have an ethical duty to preserve clients’ privileges and property. So, aside from risking potential civil liability, lawyers also could face disciplinary action when they fail to properly redact court documents. Lawyers who fail to properly redact information in confidential documents could run afoul of the American Bar Association’s rule on safeguarding client property, which has been adopted by most states.

We’ll publish Part 3 – Load File Failures – on Friday.

So, what do you think?  Have you experienced problems with document productions in eDiscovery?  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.

Why Does Production Have to be Such a Big Production?

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, Understanding Blockchain and its Impact on Legal Technology, which we covered as part of a webcast on March 27.  Now, Tom has written another terrific overview regarding production challenges and what to do about them titled Why Does Production Have to be Such a Big Production? that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

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

Introduction

The aim of document productions in the ESI world is succinctly stated by the EDRM: To prepare and produce ESI in an efficient and usable format in order to reduce cost, risk and errors and be in compliance with agreed production specifications and timelines.  https://www.edrm.net/frameworks-and-standards/edrm-model/production/

Discussions of a “database production” typically refer to a collection of ESI loaded into e-discovery software in a form other than its native (original) format.  As a result, a load file may be necessary to organize and maintain original information about the documents and accompanying metadata. We’ll talk about those problems in more detail below but let’s be clear that production problems may revolve around other issues beyond load files.

So, why is this happening? Well the first reason is because it is an issue involving technical components and lawyers, who, by and large, simply aren’t good at technology. But lest we blame it all on the lawyers, let’s keep in mind that tech people don’t make good legal analysts. And neither of them are good communicators when it comes to technical issues so the potential for problems during productions is enormous.

DIY eDiscovery company Lexbe has listed 10 common reasons for production failures:

  1. Being unaware of the rules (FRCP/state/local)
  2. Neglecting to match review requests with your review approach
  3. Not knowing the common file deliverables in productions
  4. Missing the opportunity to use ‘Meet & Confer’ (Rule 26) to your advantage
  5. Failing to Request specific file types & metadata as needed
  6. No custodian tracking causing deduplication nightmares
  7. Not Addressing placeholders, databases, and unusual file types
  8. Negotiating incomplete discovery orders in complicated cases
  9. Stepping into redactions traps
  10. Decreasing privilege review accuracy by failing to apply Near Dup checks

In this paper, we will look at a couple of the most common issues associated with productions and discuss recommendations to minimize production mistakes:

  1. Redaction Issues and Confidentiality Considerations
  2. Load File Failures
  3. Recommendations for Minimizing Production Mistakes

We’ll publish Part 2 – Redaction Issues and Confidentiality Considerations – on Wednesday.

So, what do you think?  Have you experienced problems with document productions in eDiscovery?  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.

Understanding Blockchain and its Impact on Legal Technology, Part Six

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, Will Lawyers Ever Embrace Technology?, which we covered as part of a webcast on November 28 of last year.  Now, Tom has written another terrific overview regarding blockchain and legal technology titled Understanding Blockchain and its Impact on Legal Technology 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.  Part one was last Monday, part two was last Wednesday, part three was last Friday, part four was this Monday and part five was this Wednesday, here’s the sixth and final part.

Conclusions

So, where do we go from here from a legal technology standpoint?  Let’s take a look at some current developments.

Current Developments

Much of the momentum that I saw gathering at ILTACON17 led to the establishment of the Global Legal Blockchain Consortium. Members of the consortium include the law firms Baker Hostetler and Orrick, as well as IBM Watson Legal. Their goal is to explore how blockchain technology can solve real-world legal problems as well as drive the adoption and standardization of blockchain in the legal industry.

The consortium is not the only such effort. The Enterprise Ethereum Alliance (EEA), a cross-industry collaborative blockchain consortium aiming to leverage open-source Ethereum technology for enterprise solutions, has a” Legal Industry Working Group”. Members of that group include CooleyDebevoise & Plimpton, GoodwinHogan LovellsHolland & KnightJones DayLatham & WatkinsMorrison & FoersterPerkins CoieShearman & SterlingCardozo Law School, Duke Center on Law & Technology, and the Department of Legal Studies and Business Ethics at the University of Pennsylvania’s Wharton School.

The consortium held a kick-off event called the MIT Legal Forum on AI + Blockchain in the fall of 2017. Although that effort appears to have slowed in 2018, ongoing efforts can be monitored on the EEA site. For a more in-depth report on the subject, see  Bob Ambrogi’s “Law Sites” blog post

Final Thoughts

It’s clear that blockchain has become a breakthrough topic and I expect to see much more development for legal applications in the near future. One of the challenges is how middle market clients which do not have the extensive systems that a large company might have can effectively leverage this technology and Grant Thornton is one of the players focused on this market.

Proponents will have to continue their efforts to lower uncertainty about blockchain systems stability and increase its profile as a serious business tool.  I expect to see both of those occur as the year continues.

So, what do you think?  Do you better understand blockchain now and how it can impact the legal profession?  We hope so!  And, 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.

Understanding Blockchain and its Impact on Legal Technology, 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, Will Lawyers Ever Embrace Technology?, which we covered as part of a webcast on November 28 of last year.  Now, Tom has written another terrific overview regarding blockchain and legal technology titled Understanding Blockchain and its Impact on Legal Technology 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.  Part one was last Monday, part two was last Wednesday, part three was last Friday and part four was this Monday, here’s the fifth part.

Blockchain in Legal Technology and eDiscovery

Sure, those are a couple of great examples and there are a lot of general use cases for blockchain.  But, this is also an article about its impact on legal technology and electronic discovery.  How does it impact those areas?

General Legal Technology Impacts

Because blockchain is secure, immutable and transparent, it enables attorneys to record and authenticate many types of legal matters including contracts, real estate, corporate filings, intellectual property rights, or any other activity conducive to being ledger-based.

Contracts, in particular, are starting to benefit from blockchain.  We have smart phones, smart watches, even smart thermostats and smart appliances, right?  With blockchain, we have smart contracts which not only define the rules and penalties contained within an agreement, they also automatically enforce those obligations.  This article by Caitlin Moon in Law Technology Today goes into considerably greater depth into various implications of blockchain for legal professionals.

Impacts on Electronic Discovery

With regard to eDiscovery, blockchain has several potential significant impacts, some of which are priorities even today:

Source of ESI: One obvious impact of blockchain is that it is another source of ESI that needs to be addressed and you need to have a plan to account for it.  This includes a strategy for preparing and responding to discovery requests.  Just as you need to expand your eDiscovery strategy to incorporate data from mobile devices, Internet of Things (IoT) devices and social media (and other cloud-based platform) data, you now need to include blockchain in that strategy as well.

Investigations: In some respects, blockchain can aid in investigations since every transaction is immutable, verifiable and open to examination.  However, because identities are protected, blockchain also complicates the process of tying monetary transactions to specific entities.

Document Preservation: Because blockchain records are immutable, blockchain is more verifiable, easier to authenticate, and more reliable than other data sources.  Blockchain’s immutable nature would certainly reduce the potential of ESI spoliation since potentially relevant information can’t be erased.

Document Production: Blockchain could also be an improved, more-technology focused method of labeling productions than the Bates numbering system still used so widely today, in that it could make discovery productions more secure.

Chain of Custody: Because of its immutability and reliability, blockchain can provide an indisputable chain of custody.

Forensics: Even forensics can benefit from blockchain.  Forensics expert Johnny Lee of Grant Thornton related in the article mentioned above that “…the ability of blockchain to replace the need for a centralized trust authority to authenticate transactions is perhaps its greatest promise for the forensic community.”

The Epiq blog has more information about impacts to eDiscovery here.  And, HaystackID conducted a two-part webcast series that discusses the basics of cryptocurrencies and blockchain (part one) and gets into the impact on legal technology and eDiscovery (part two).

We’ll publish Part 6 – Conclusions – on Friday.

So, what do you think?  Do you understand blockchain and how it can impact the legal profession?  If not, keep reading!  And, 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.

Understanding Blockchain and its Impact on Legal Technology, 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, Will Lawyers Ever Embrace Technology?, which we covered as part of a webcast on November 28 of last year.  Now, Tom has written another terrific overview regarding blockchain and legal technology titled Understanding Blockchain and its Impact on Legal Technology 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.  Part one was last Monday, part two was last Wednesday and part three was last Friday, here’s the fourth part.

General Use Cases for Blockchain

Several actual examples may show the actual utility of blockchain.

Searching

In 2001, Microsoft researchers, Banko and Brill, released a paper Scaling to Very Very Large Corpora for Natural Language Disambiguation,  which described how most work in the area of natural language processing was on small data sets of less than a million words. Error rates for algorithms such as Naive Bayes and Perceptrons were 25%, while newer memory-based algorithms achieved 19% error rates.

But as they added MORE data — not just a bit more, but orders of magnitude more — and kept the algorithms the same, then the error rates kept going down. A dataset which was three orders of magnitude larger had an error rate of less than 5%.  Even more surprising, the best-performing algorithms were the simplest and always outperformed more state-of-the-art systems.

Then, in 2007, Google researchers, Halevy, Norvig and Pereira, published a paper called The Unreasonable Effectiveness of Data  showing how data could be “unreasonably effective” across many AI domains. Hence, the rise of deep learning systems and the reemergence of backprop neural networks from the ’80s which are equally effective in massive datasets with more recent technologies.

So decentralized and shared control typically leads to better performing  models.  And since the decentralized nature of blockchains encourages data sharing, it works better whether the network is local or worldwide.

Security

Blockchain eliminates the risks that come with centralized data because it stores data across the network. Thus, it doesn’t have centralized points of vulnerability that computer hackers traditionally exploit. No more “username/password” systems, but rather encryption technology and constantly updating audit trails

A blockchain, as the name implies, is a chain of digital “blocks” that contain records of transactions. The records on a blockchain are secured through cryptography and network participants have their own private keys that are assigned to the transactions they make and act as a personal digital signature.

However, despite inherent properties that provide security, known vulnerabilities in your infrastructure can be manipulated by hackers. Any system supporting blockchain should have these capabilities at a minimum:

  • Be able to prevent anyone, up to and including administrators, from accessing sensitive information
  • Ability to deny illicit attempts to change data or applications within the network.
  • Use highest-grade security standards to protect encryption keys

We’ll publish Part 5 – General Use Cases for Blockchain – on Wednesday.

So, what do you think?  Do you understand blockchain and how it can impact the legal profession?  If not, keep reading!  And, 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.

Understanding Blockchain and its Impact on Legal Technology, 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, Will Lawyers Ever Embrace Technology?, which we covered as part of a webcast on November 28 of last year.  Now, Tom has written another terrific overview regarding blockchain and legal technology titled Understanding Blockchain and its Impact on Legal Technology 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.  Part one was Monday and part two was Wednesday, here’s the third part.

Advantages and Challenges of Blockchain

So, why is blockchain becoming more popular and what advantages are associated with it?  And, if it’s so great, why aren’t more people using it?

Advantages of Blockchain

Blockchain has several structural advantages:

  • Establishes a definitive record for a given transaction
  • An organization can embed the verification for the transaction within the transactional record itself,
  • It is readily accessible
  • It is easily verifiable
  • It is immutable
  • It is transparent
  • Offers assurance across all transactions subject to the blockchain.
  • Allows full testing of the population in its entirety
  • Allows reliable spot-checks at any time
  • No need for third party audit to sample a portion of transactions and extrapolate from the sample based upon statistical probabilities because blockchain exposes the full population of transactions

Challenges to Blockchain Adoption

At the same time, Blockchain faces several distinct challenges to widespread adoption, including:

  • Business leaders want practical solutions and blockchain is still considered by many to be an esoteric solution
  • Are their blockchain standards to which businesses can refer?
  • Are distributed ledgers actually slower than centralized ones?
  • Are distributed ledgers easily available to all users?
  • How secure are distributed ledgers?
  • Can privacy be assured in a blockchain scheme?
  • How does security differ in public vs private blockchains?

We’ll publish Part 4 – General Use Cases for Blockchain – next Monday.

So, what do you think?  Do you understand blockchain and how it can impact the legal profession?  If not, keep reading!  And, 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.

Understanding Blockchain and its Impact on Legal Technology, 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, Will Lawyers Ever Embrace Technology?, which we covered as part of a webcast on November 28 of last year.  Now, Tom has written another terrific overview regarding blockchain and legal technology titled Understanding Blockchain and its Impact on Legal Technology 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.  Part one was Monday, here’s the second part.

Understanding Blockchain and Bitcoin

To understand blockchain and bitcoin better, let’s take a look at the background of how they were created and discuss how blockchain works.

Background on Blockchain and Bitcoin

Credit for bitcoin creation is given to an anonymous person using the name Satoshi Nakamoto who claimed to be a Japanese citizen.  Much speculation centered around the name being based on a setting in the 1996 movie Rising Sun; however, it was believed the true authors were several cryptography and computer science experts of non-Japanese descent.

What is not disputed though is that bitcoin was based on the first blockchain database which allowed digital information to be distributed, but not copied. Once established in bitcoin, it was not long before blockchain came to be used for any transaction that needed a trust factor among all parties and a verifiable audit trail. Areas such as financial services, technology, manufacturing, pharmaceutical, and energy industries all needed systems with these two factors.

How Blockchain Works

Blockchain is a digital ledger that can be programmed to record multiple transactions.  Think of a spreadsheet that is duplicated thousands of times across a network, updated on a regular basis as people access it, in a distributed database that is not in one location, but rather is shared by potentially millions of users, accessible to anyone on the internet.

Or think of it as a document in Google Docs that is being seen by multiple people simultaneously. Instead of waiting for one person to make changes and circulate the document, it can be worked on by everyone, with extremely short times for document “lock down” while updates are being made.

This completely digital system self-audits and reconciles all transactions every ten minutes. The audit trail itself is visible to all participants yet allows encryption of individual transactions. Since both the components (blocks) and the blockchain (ledger) are fixed, participants can review the entire history of transactions from the time the ledger is created.

Commentator Bob Ambrogi, in a 2017 article in LawSites, quotes the executive of a blockchain company as describing it this way,  “With a blockchain, every transaction is digitally signed, every transaction is chained together, and it’s replicated on hundreds of computers around the world with digital signatures…”.

The system is what Johnny Lee of Grant Thornton, in his 2017 article Beyond Bitcoin: Leveraging blockchain for forensic applications, refers to as a “ …consensus-based proof of validity [which] replaces the need for a centralized trust authority.”

It reminds me most of the early days of networking with dumb terminals.  Now it is a network of “nodes” which constitute a blockchain, and every node is an administrator of the blockchain. It’s a hacker’s nightmare.

We’ll publish Part 3 – Advantages and Challenges of Blockchain – on Friday.

So, what do you think?  Do you understand blockchain and how it can impact the legal profession?  If not, keep reading!  And, 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.

Understanding Blockchain and its Impact on Legal Technology

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, Will Lawyers Ever Embrace Technology?, which we covered as part of a webcast on November 28 of last year.  Now, Tom has written another terrific overview regarding blockchain and legal technology titled Understanding Blockchain and its Impact on Legal Technology 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

I first started paying attention to blockchain at ILTACON17 when I noticed how often it was cited in security sessions.  Like many people, I had associated blockchain only with bitcoin, and thus tended to dismiss it as a one trick pony.

Even thought Don & Alex Tapscott described it in their 2016 book, Blockchain Revolution , as “ … the next generation Internet.”, I also had trouble seeing it as a solution for day to day business problems.  It didn’t seem to me be the practical sort of tool with solid standards that business people would deploy and I was concerned about the security of recording transactions in public ledgers while at the same time being able to protect privacy.

The ILTA session helped me overcome some of those concerns as I learned how blockchain tools were dealing with these issues.  And I’ve continued to monitor the growth of the tool since then. This paper is an attempt to give an overview of where blockchain is at the onset of 2019.

In this paper, we will look at several topics related to blockchain and legal technology:

  1. Understanding Blockchain and Bitcoin
  2. Advantages and Challenges of Blockchain
  3. General Use Cases for Blockchain
  4. Blockchain in Legal Technology and eDiscovery
  5. Conclusions

We’ll publish Part 2 – Understanding Blockchain and Bitcoin – on Wednesday.

So, what do you think?  Do you understand blockchain and how it can impact the legal profession?  If not, keep reading!  And, 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.

Will Lawyers Ever Embrace Technology?: eDiscovery Best Practices, 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, eDiscovery Project Management from Both Sides, which we covered as part of a webcast on October 31.  Now, Tom has written another terrific overview regarding the state of lawyer adoption of technology titled Will Lawyers Ever Embrace Technology? 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 published on November 16, part two was published last Monday, part three was published last Tuesday and part four was published yesterday.  Here’s the fifth and final part.

What can we do to Help Lawyers become Technologically Proficient?

What is the solution moving forward?? Well as I said above, “read the rule book shankapotomous.”. Get educated. Go to conferences and CLE sessions. Help promote more education.  Once again Craig Ball is more eloquent than I am when he ventures “Evidence is digital.  That’s not changing.  Embrace the inevitable.  We don’t need conferences to mourn the passing of paper.  We need Manhattan Projects to educate lawyers about ESI.”

And, so we return to a recurrent theme among ED commentators. We need not just better but far more education.  That is the best way to reduce ED costs.

But I’ll also offer my 10 Tips for Working with eDiscovery. This may be a good checklist for you in moving forward.

  1. Read the Rules: The Federal Rules of Civil Procedure lay out the framework for your obligations in handling e-discovery and differ in several aspects from traditional discovery rules. In addition, your state may have its own ED rules which differ from the FRCP.  You need to understand the procedural requirements for the various jurisdictions where you may have litigation arise so start here.
  2. Read the Decisions: Federal judges, notably Facciola, Grimm and Waxse, have spent considerable time issuing opinions which give details on interpreting and implementing the Federal rules. Reading these decisions is essential to understanding how to handle eDiscovery so start with a good book on ED basic then read a good case update blog, preferably one which has an RSS feed.
  3. Know the Terms: eDiscovery isn’t rocket science but it is technical in nature. But you learned the Rule against Perpetuities in law school so believe me you can handle this.  Judges do not want to waste time settling arguments between attorneys who don’t know the difference between a PST and an MSG file so get a good ED glossary (the Sedona Conference has one) and make sure you know all the terms.
  4. Know Where Your Data Is: You can’t find it to identify, collect and preserve if you don’t know where it is. So, get with your client’s IT folks and make a map of their network with locations, custodians, OS and applications lists and descriptions of data amounts.  Why? Because a map shows us how to go places that we haven’t been before without getting lost.  Plus, they are incredibly useful in court to show a judge the complexity of your data collection problem.
  5. Talk to The IT Department: They know how to make the map. You’re Lewis and Clark, they’re Sacajawea. You cannot…absolutely cannot…navigate without them.
  6. Talk to The Records Management People: Records Management is the flip side of the eDiscovery coin and your clients RM staff can help avoid the need to waste time and money restoring backup tapes that don’t contain relevant data. Wait, your client DOES have a Records Management Policy, right?
  7. Make a Records Management Policy: Good records management will save time and money when clients have to collect data and will help avoid sanctions when you have to explain to a judge why some documents are no longer available because they were deleted in the ordinary course of business by the records retention policy.
  8. Make A Litigation Hold Policy: Every client needs to have a clear and concise litigation hold policy to deal with procedures for data retention when the litigation hold letter arrives. And it will.
  9. Enforce the Litigation Hold Policy: Repeat after me: “repeatable, defensible process”. Don’t put the lit hold policy in a manual that just goes on the shelf. This is the biggest mistake you can make and more cases are lost here than in any other phase of electronic discovery. Your opponent marks up a motion for sanctions, you say “but Your Honor, we have a lit hold policy” and the judge says “show me how you implemented it in this case.” And you can’t.
  10. Meet with Your Client’s Inside Counsel: Why? To discuss all of the above. They will need to understand, and be able to explain, all of it in order to work with you. And you need to be sure they can do exactly that.

Finally. let me leave you with a word of caution. As much as we talk about technology and its importance, keep in mind that technical understanding is the underpinning of legal competence.  eDiscovery is still discovery.

The ultimate solution to the eDiscovery quandary is more than just knowing the rules, avoiding e-jargon and understanding the technology. The fact is that eDiscovery is a process comprised of separate distinct stages, any one of which may have specific software available for that stage. In my estimation, true technical competence means knowing the technological underpinnings of each of those steps and then understanding the best process for making them all work together.

It is the process not the technology that is the ultimate key. As my colleague John Martin has said for years, “it’s the archer not the arrow”.

So, what do you think?  Do you think that lawyers are where they need to be in becoming technologically proficient?  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.