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Electronic Discovery

Alteration of Domain in Produced Emails Leads to Sanctions for Plaintiffs: eDiscovery Case Law

In CAT3, LLC v. Black Lineage, Inc., No. 14 Civ. 5511 (AT) (JCF) (S.D.N.Y. Jan. 12, 2016), New York Magistrate Judge James C. Francis IV, ruling that emails produced by the plaintiffs were “intentionally altered”, ordered that the plaintiffs would be precluded from relying on their version of those emails to demonstrate their case and that the plaintiffs would bear the “costs, including reasonable attorney’s fees, incurred by the defendants in establishing the plaintiffs’ misconduct and in securing relief.”

Case Background

One of the key issues in this case regarding trademark infringement regarded similarity between the plaintiffs’ and defendants’ trademarks and whether the defendants developed their trademark (FLASHXHYPE) mark independently or after learning of the plaintiffs’ development of their trademark (SLAMXHYPE).  In a deposition of the defendant company’s president, communication between the defendant and plaintiff companies was provided (which had been produced as PDF images) that showed the plaintiffs’ employee’s address as having the email domain “@slamxhype.com.”  However, on cross examination, the deponent testified that the email he received was identical, except that it showed the plaintiffs’ employee’s address with the email domain “@ecko.com.”

The defendants’ counsel then sought to explore the discrepancy, and in May 2015, they demanded production of the plaintiffs’ emails in native form.  The plaintiffs did not initially respond and, ultimately, their attorneys withdrew and were replaced by new counsel.  In July 2015, the Court ordered the plaintiffs to comply with the defendants’ request and the plaintiffs produced a USB drive containing a PST file, a zip file, and several separate PDFs of relevant emails.

The defendants subjected that production to a forensic analysis which determined that there were two versions of each email message: a “top” level version and, behind each email message, a “near-duplicate copy of the message containing the identical message,” but with different email domains appearing for a number of the senders and recipients.  The underlying near-duplicate versions were the original emails, which had been deleted, albeit not without leaving a digital imprint.

Relying largely on the forensic analysis, the defendants then moved for sanctions consisting of some combination of dismissal of the complaint, imposition of an adverse inference, an order of preclusion, and assessment of attorneys’ fees and costs.

Judge’s Ruling

In considering the application of the amended Rule 37(e) to the situation, Judge Francis determined that “because the amendment is in some respects more lenient as to the sanctions that can be imposed for violation of the preservation obligation, there is no inequity in applying it.”

With regard to the plaintiffs’ claim that “there has been no destruction or loss of any evidence, and there certainly has not been both (i) loss of evidence AND (ii) “such evidence cannot be restored or replaced” as required by Rule 37, Judge Francis, citing Victor Stanley (the first case ever covered by this blog), stated “the plaintiffs argue that even if they are the ‘gang that couldn’t spoliate straight,’ they cannot be sanctioned because their misdeeds were discovered and the information recovered. They are incorrect.”  Elaborating, Judge Francis said that “it cannot be said that the information lost has been ‘restored or replaced’”, noting that “as the plaintiffs themselves suggest, the fact that there are near-duplicate emails showing different addresses casts doubt on the authenticity of both”.

Regarding the plaintiffs’ contention that the manipulation of the emails was unintentional and possibly due to the migration of the plaintiffs’ emails from one system to another, Judge Francis refuted that notion, stating that the “evidence supports the defendants’ allegation that the plaintiffs intentionally altered the emails at issue”.

With regard to relief, Judge Francis, while considering dismissal of the action or imposition of an adverse inference as possible sanctions, stated “such drastic sanctions are not mandatory”.  Therefore, he ordered a “two-fold remedy”, ordering that the plaintiffs would be “precluded from relying upon their version of the emails at issue to demonstrate notice to the defendants of use of the SLAMXHYPE mark” and that the plaintiffs would bear the “costs, including reasonable attorney’s fees, incurred by the defendants in establishing the plaintiffs’ misconduct and in securing relief.”

So, what do you think?  Were those sanctions warranted?  Please share any comments you might have or if you’d like to know more about a particular topic.

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.

EDRM and the Institute for Information Governance offer New Professional Education Series: eDiscovery Trends

As you know if you read this blog, EDRM is committed to education within the eDiscovery industry.  Now, a new partnership with the Institute for IG and IMERGE Consulting will provide education for those interested in learning more about information governance (IG) and electronic records management (ERM).

As EDRM announced yesterday, the purpose of the partnership is to offer education for e-discovery professionals who are seeking to build practical skills in IG and ERM. Participants will earn a certificate in Advanced IG or ERM. Live instructor-led sessions will be held March 22-24, 2016, at the University of San Diego, Kroc Center. Online sessions and on demand HD video content are also available. Course details and registration can be found on the EDRM website at http://www.edrm.net.

“EDRM introduced the Information Governance Reference Model (IGRM) to help promote collaboration among the various stakeholders – business users, IT departments and legal, risk and regulatory departments, all of whom have interests and obligations in effective information governance,” said George Socha, co-founder of EDRM. “As the industry continues to mature, professional education that integrates the principles of effective information governance with the legal and risk management interests in e-discovery and regulatory compliance is more important than ever. The courses offered by the Institute for IG provide EDRM members a valuable opportunity to expand their knowledge and skills in the areas of IG and ERM.”

Robert Smallwood, the world’s leading IG author, blogger and trainer, is the primary instructor for the IG classes. Charmaine Brooks, CRM, a renowned records management expert, is the primary instructor for the ERM classes. George Socha will serve as an advisor and guest instructor.

EDRM members are eligible for special discounts.  So, if you’re interested in joining EDRM, there has never been a better time!  Organizations interested in EDRM membership will find information at https://www.edrm.net/join/.

So, what do you think?  Are you interested in learning more about information governance or electronic records management?  Please share any comments you might have or if you’d like to know more about a particular topic.

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.

Various Observations from LegalTech 2016: eDiscovery Trends

At the start of the year, one of the goals that I identified for the blog this year was to provide more perspectives from other professionals in the industry.  Not only does that give our readership different points of view, but it also saves me some work!  With that in mind, I asked various people that I met with (and/or presented with) at LegalTech® New York 2016 (LTNY) last week to offer their observations about this year’s conference.  Ten of them did, and those observations are reflected here.

The perspectives range from industry thought leaders to professionals at law firms and eDiscovery providers.  They reflect observations about everything from the sessions, the exhibit hall, the traffic, the logistics and the industry itself (after all, LTNY is a microcosm of the industry).  Some observations reflected the positive aspects of this year’s LTNY and some reflected some issues with the show and/or the exhibitors’ approach to the show.  Here they are, in the order they provided them to me:

George Socha, Co-Fourder of EDRM and Founder of Socha Consulting LLC: “On the monitors in exhibitors’ booths, I saw old school and new.  Old school showed quantitative information in rows and columns – often difficult to assimilate.  New school channeled Edward Tufte, visually displaying quantitative information in ways that allow us to more quickly and easily absorb, understand and synthesize large volumes of varied data.  More new school please!”

David Cohen, Practice Group Leader, Global Records & E-Discovery Practice Group at Reed Smith LLP: “The buzz at the show, and comments from multiple experts in the e-discovery field, indicated no let-up in the e-discovery business—it continues to grow, and we continue to see reorganization and consolidation in e-discovery companies, as well as the usual cycles of some companies and law firms trying to bring more of the work in-house, while others move toward more outsourcing or managed services.  In the meantime e-discovery sophistication, both in the people and in the products, continues to increase all around.  Accordingly, the demand for experienced assistance—being able to do more with less– remains high.”

Tom O’Connor, Senior ESI Consultant at Advanced Discovery and Director of the Gulf Coast Legal Technology Center: “Attendance was good and seemed a bit higher than last year in my entirely unscientific appraisal. EDiscovery was the major theme, with minors in analytics, security and international data issues.

The eDiscovery focus continues to shift to the left side of the EDRM model with an increased focus on data analytics and ECA/EDA.  I’ve said for over 2 years now that the only way to control ED costs is through effective document management policies, and the focus now seems to be firmly on that approach.  With regard to analytics, the main problem seemed to be defining it: one man’s analytics is another man’s concept search, if you will.   The main definition of analytics seemed to be ‘what we are selling’.”

Ralph Losey, National e-Discovery Counsel at Jackson Lewis, LLP: “Another year in the premier legal technology event, and another year of just more talk and competing, unproven claims by vendors. The legal industry needs objective evaluations beyond just Gartner to help attorneys sort through all of the baloney being served at LegalTech and other vendor driven events. But I do not see anything like that on the horizon and I begin to wonder if these events do more harm than good. Is LegalTech just another vendor event for the broadcast of misinformation and puffing. Does throwing in a few fine lawyer speeches (and there were many this year, as usual) really make a difference? The whole industry suffers as a result of this “all talk, no walk” approach. ALM’s LegalTech, or someone, needs to take the lead and start promoting standards and reliable, tested information. In the meantime we are drowning in “buyer beware” information, with little or no real knowledge dissemination, not to speak of wisdom.”

Amy Bowser-Rollins, Editor of the Litigation Support Guru: “I was really impressed with Dera Nevin on the ‘TAR 2.0 For Smart People’ panel on Tuesday and I enjoyed hearing about the non-traditional use examples in the TREC session on Wednesday morning. I was surprised at how dismal the exhibitor floors seemed this year.”

Bruce Markowitz, Vice President, e-Discovery at Evolver Legal Services: “It was refreshing to see new technology being deployed this year, especially for native excel redaction. No longer needing to tiff and pdf excels to be redacted is a big step forward in eDiscovery.”

Staci Kaliner, Senior Advisor, Redgrave LLP: “LegalTech NY 2016 was as vibrant as always.  The networking opportunities were endless, including meeting new contacts on the 20 minute line for the elevators!  There is no other conference in the industry that enables you to compare and contrast service providers, technologies, offerings and industry trends with the best and the brightest.”

Michele C.S. Lange, Director, Kroll Ontrack: “With more than 60 educational sessions, there was no shortage of top-notch speakers, interesting commentary and hot-topics at #LTNY16. Here were the top 5 themes that I noticed across the various sessions: Predictive Coding, FRCP Amendments, Safe Harbor, Information Governance, and Office365 and the Cloud. I particularly enjoyed the session that Kroll Ontrack sponsored with the EDRM, “25 Ediscovery Warnings in 75 Minutes”, which was standing room only and featured more speakers than any other session. Also, it was probably the only session that covered all 5 of these LTNY “hot topics” in less than 75 minutes!”

Janice Jaco, eDiscovery Project Manager at Keesal, Young & Logan: “One recurring theme I heard was that we are pricing ourselves out of the legal system.  Big data, specifically, document review, is inhibiting the judicial process.  Looking at every page of every document is not the gold standard in the age of predictive coding, categorization and analytics.  Corporate law departments should have a conversation with their outside counsel about the appropriateness of a linear, manual document review on every case with a significant amount of ESI.  There was also much discussion about ediscovery competence, which is a known predictor of discovery costs.  Clients should dig deep into the credentials of their outside counsel to confirm the right people, process and technology are being applied to discovery.  This is another way to reduce costs.”

Pete Feinberg, Senior Vice President, Products & Marketing at Consilio: “Legaltech New York 2016 is evidence that the technology providers in the market have reached a milestone of thinking about their software in the context of consumerization – bringing complex technologies to the masses in intuitive and natural workflows.  As opposed to Legaltechs of years past – where technology providers were just introducing powerful tools such as text analytics and predictive coding without much consideration for workflows natural to attorneys (instead aiming their wares at technophile elites), we are seeing more thoughtful and organic software that will drive adoption by less technology savvy attorneys.  The legal technology industry is now taking cues from consumer tech giants like: Amazon.com, Pandora, Google Maps, Apple and Expedia. That signals a maturation of the industry overall.

At the same time, the age of global consolidation is finally here.  From market news in the days leading up to, and during Legaltech, we’re seeing clear signs of consolidation and investment in the industry creating more distance between the dominant global players and smaller ancillary providers.”

So, what do you think?  Did you attend LTNY this year?  If so, what were YOUR observations?  Please share any comments you might have or if you’d like to know more about a particular topic.

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.

Europe and US Agree to Replace Safe Harbor with a Shield: eDiscovery Trends

While many of us were at LegalTech® New York 2016 last week, an important new framework for transatlantic data flows was agreed upon – the EU-US Privacy Shield.

As announced last Tuesday, the new framework is intended to protect the fundamental rights of Europeans where their data is transferred to the United States and ensure legal certainty for businesses.

According to the European Commission, the EU-US Privacy Shield reflects the requirements set out by the European Court of Justice (ECJ) in its ruling in the Schrems case last October 2015 (covered by us here), which declared the old Safe Harbor framework invalid. The new arrangement will provide stronger obligations on companies in the U.S. to protect the personal data of Europeans and stronger monitoring and enforcement by the U.S. Department of Commerce and Federal Trade Commission (FTC), including through increased cooperation with European Data Protection Authorities. The new arrangement includes commitments by the U.S. that possibilities under U.S. law for public authorities to access personal data transferred under the new arrangement will be subject to clear conditions, limitations and oversight, preventing generalized access. Europeans will have the possibility to raise any inquiry or complaint in this context with a dedicated new Ombudsperson.

The new agreement, which has yet to be published (and is apparently still “some” weeks out, according to an article in TechCrunch) will include provisions for “strong obligations on companies handling Europeans’ personal data and robust enforcement”, “clear safeguards and transparency obligations on U.S. government access” and “effective protection of EU citizens’ rights with several redress possibilities”.  Next steps include preparation of a draft “adequacy decision” in the coming weeks, which could then be adopted by the College of Commissioners after obtaining the advice of the Article 29 Working Party and after consulting a committee composed of representatives of the Member States. In the meantime, the U.S. side will make the necessary preparations to put in place the new framework, monitoring mechanisms and new Ombudsman.

In the TechCrunch article, Schrems, whose legal action against Facebook ultimately brought down the original Safe Harbor, expressed skepticism the deal goes far enough to stand the test of another legal challenge at the ECJ, noting that the “Court has explicitly held, that any generalized access to such data violates the fundamental rights of EU citizens”.

So, what do you think?  Will the new “Privacy Shield” hold?  Or is it too soon to tell?  Please share any comments you might have or if you’d like to know more about a particular topic.

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.

Changes in Federal Rules Result in Reversal of Adverse Inference Sanction: eDiscovery Case Law

In Nuvasive, Inc. v. Madsen Med. Inc., No. 13cv2077 BTM(RBB) (S.D. Cal. Jan. 26, 2016), California Chief District Judge Barry Ted Moskowitz, considering new standards imposed under recently amended Federal Rule of Civil Procedure 37(e), granted the plaintiff’s motion for an order vacating the Court’s previous order granting (in part) the defendants’ Motion for Sanctions for Spoliation of Evidence.

Case Background

In a previous ruling (which we covered here), Judge Moskowitz granted the defendants’ motion for adverse inference sanctions for failure to preserve text messages from four custodial employees that were key to the case.  The plaintiff sought relief under Rule 60(b) based on an amendment to Federal Rule of Civil Procedure 37(e), which went into effect on December 1, 2015.

The defendants opposed the motion, arguing that it was untimely and also argued that it was neither “just” nor “practicable” to apply the new rule because: (1) the mere fact that trial was postponed to February 2016 due to the Court’s schedule should not have the effect of absolving the plaintiff of its discovery misconduct; (2) application of the amended rule would cause substantial prejudice to the defendant, which took discovery and filed its spoliation motion under the standard applicable at the time; and (3) there is no alternative sanction that would remedy the prejudice to the defendants caused by the plaintiff’s destruction of evidence.

Judge’s Ruling

In assessing the new Rule 37(e) language, Judge Moskowitz stated that “It is clear from the language of (e)(2) as well as the Committee Notes that the adverse inference instruction that the Court was going to give falls within the measures that are not permissible absent a finding of intent. The Committee Notes explain: ‘Subdivision (e)(2) applies to jury instructions that permit or require the jury to presume or infer that lost information was unfavorable to the party that lost it. Thus, it covers any instruction that directs or permits the jury to infer from the loss of information that it was in fact unfavorable to the party that lost it.’”

Continuing, Judge Moskowitz observed that “In its prior orders, the Court did not make any finding that NuVasive intentionally failed to preserve the text messages so that Defendants could not use them in this litigation. Instead, the Court found that NuVasive was at fault for not enforcing compliance with the litigation hold. The record does not support a finding of intentional spoliation by NuVasive. Therefore, under Rule 37(e), as amended, it would not be proper for the Court to give the adverse inference instruction.”

Judge Moskowitz rejected the defendants’argument that the motion was untimely, noting that the plaintiff brought its motion on December 10, 2015, just nine days after the new rule went into effect.  While acknowledging that “NuVasive has had a bit of good luck in that trial is scheduled for February, after the effective date of the new rule”, Judge Moskowitz indicated that he was “not convinced that there is any prejudice” to the defendant, noting that, “even under the standard applied by the Court in initially ruling upon Defendants’ motion for sanctions, intent was relevant”.

Judge Moskowitz did indicate he would allow both parties “to present evidence to the jury regarding the loss of electronically stored information and will instruct the jury that the jury may consider such evidence along with all other evidence in the case in making its decision.”

So, what do you think?  Should sanction orders be vacated because of the amendment to Rule 37(e)?  Will this create a wave of motions requesting that courts vacate similar orders in other cases?  Please share any comments you might have or if you’d like to know more about a particular topic.

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.

EDRM Participant Profile, Crystal O’Donnell: eDiscovery Trends

When EDRM announced eDiscovery Daily as an Education partner last March, EDRM agreed to publish our daily posts on the EDRM site and it has been great to publish our content via the leading standards organization for the eDiscovery market!  However, another part of our agreement was for eDiscovery Daily to provide exclusive content to EDRM, including articles sharing real-life examples of organizations using EDRM resources in their own eDiscovery workflows.  Our latest participant profile is available on the EDRM site and we’re looking for other organizations to share their EDRM experiences!

These profiles are designed to illustrate how participants and their organizations contribute to the success of EDRM as well as how those organizations use EDRM resources in their own businesses.

Our latest EDRM Participant Profile Interview is with Crystal O’Donnell. Crystal is Founder and President of Heuristica Discovery Counsel.  She has a diverse and relevant professional history, with extensive experience as litigation and e-discovery counsel having practiced with a leading litigation firm and the Ministry of the Attorney General (Ontario). Crystal has represented clients in a number of complex matters at all levels of the Ontario courts as well as in regulatory proceedings and investigations.

Crystal’s range of expertise includes legal, strategic and software aspects of e-discovery, which are critical components of all legal proceedings and evidence-based proceedings. She also has experience with cross-border and conflicts of laws issues which arise in multi-jurisdiction and multi-forum matters.  Her years of experience as litigation counsel give her a keen appreciation and understanding of clients’ needs and allows her to deliver defensible, proportionate and cost-effective legal advice and solutions.

Crystal is also currently the Vice-Chair of the Ontario E-Discovery Implementation Committee, (“EIC”); Chair of the EIC Precedents Subcommittee; and, a Steering Committee member of Working Group 7, of the Sedona Conference (Sedona Canada).

In my interview with Crystal, she discussed why Heuristica decided to join EDRM, how EDRM compares to the Sedona Conference and she discussed several ways in which the discovery process is handled differently in Canada (as compared to the USA).  Very interesting stuff!

The link to Crystal’s interview on the EDRM site is here.  I hope you will check it out.

If you are a participant of EDRM and would like to be profiled (or would like to recommend a current EDRM participant to be profiled), please contact George Socha (george@edrm.net), Tom Gelbmann (tom@edrm.net) or me (daustin@cloudnincloudnine.comm) to arrange a profile interview with me to be published on the EDRM site.  We would love for you to share your experiences with EDRM and its resources!

So, what do you think?  Are you an EDRM member and want your organization to be profiled?  Please share any comments you might have or if you’d like to know more about a particular topic.

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.

Thursday LTNY 2016 Sessions: eDiscovery Trends

As noted yesterday and Tuesday, LegalTech® New York 2016 (LTNY) is happening this week and eDiscovery Daily is here to report about the latest eDiscovery trends being discussed at the show.  This is the last day to check out the show if you’re in the New York area with a number of sessions (both paid and free) available and over 174 exhibitors providing information on their products and services.

While at the show, we will (for the sixth year in a row!) be interviewing several industry thought leaders to see what they think are the significant trends for 2016 and, which of those are evident at LTNY.  After the show, we will announce the series of thought leader interviews and identify when each will be published.  Mark your calendars!

Perform a “find” on today’s LTNY conference schedule for “discovery” or “information governance” and you’ll get 41 hits.  So, there is plenty to talk about!  Sessions in the main conference tracks include:

9:00 – 10:00 AM:

Keynote Panel Discussion – Private Network Servers, Deleted Emails & Texts and Other Controversies in the News

  • Investigations into the State Department’s emails, the Fort Lee lane closure controversy and Deflategate: What do we know, and what would eDiscovery experts have advised to avoid each of these issues?
  • What laws apply to public records on private networks?
  • How should we deal with shadow IT applications (the use of commercial services for corporate and government business), beyond just having a BYOD policy?
  • Are institutions losing control of their ability to find and access records?
  • Comingling business, personal and public records: Can the knot be untied? Where is the line separating personal data?

Speakers to include: Daniel J. Capra (Discussion Leader), Reed Professor of Law, Fordham Law School; Jason R. Baron, Information Governance and eDiscovery Group, Drinker Biddle & Reath LLP, Former Director of Litigation, National Archives and Records Administration; Edward B. MacMahon, Jr., Attorney, Edward B. MacMahon, Jr., PLC Hon. Shira A. Scheindlin, United States District Judge , United States District Court , Southern District of New York.

10:30 – 11:45 AM:

Civil Litigation: Unique Considerations of a Federal Civil Investigation and Impact of Revised FRCP

There are legal and strategic e-discovery challenges at each stage of an investigation.  The government stresses communication, expertise, and planning.  Understanding of the scope of claims, preservation issues, and search strategies can often set the tone for an entire case.  This panel will address how the new amendments to the Federal Rules of Civil Procedure will affect litigation with the federal government, how new technology is changing old discovery, and provide practical suggestions on how to engage the government if you become involved in a civil investigation.

Speakers to include: George Kiersted (Discussion Leader), President, Kiersted Systems; Christopher Belen, Senior Litigation Counsel for E-discovery , US Department of Justice-Civil Division; Robert L. Levy, Counsel – Civil Justice Reform and Law Technology, Exxon Mobil Corporation; Allison Stanton, Director of E-Discovery, FOIA and Records, US Department of Justice-Civil Division, Joshua Wood, Director, Office of Litigation Support, US Department of Justice-Civil Division.

What Happened to the US/EU Safe Harbor?  The Tension Between Privacy and Business Efficiency for Multinational Corporations

  • Overview of the CJEU’s Safe Harbor ruling and its impact on multi-national corporations
  • Common-sense, practical steps that can help an organization deal with the current ambiguity and to mitigate exposure of EU resident data housed in the US
  • What’s on the horizon – will there be a Safe Harbor 2.0? What will it look like?

Speakers to include: Robert D. Brownstone, Technology & eDiscovery Counsel and Chair, Electronic Information Management (EIM) Group, Fenwick & West LLP; Chris Dale, The e-Disclosure Information Project; Kenneth N. Rashbaum, Partner, Barton LLP; Amie Taal, Vice President of Digital Forensics and Investigations, Deutsche Bank; Richard Vestuto, Director – Deloitte Discovery, Deloitte Advisory.

Dancing with the Stars of eDiscovery: Case Studies in eDiscovery Powered by Analytics

eDiscovery practitioners have paired up with their software vendors to show their best litigation dance steps as they each present case studies in eDiscovery powered by analytics. See how clients saved millions of dollars and countless person-hours by putting analytics in motion with the grace and elegance of Fred Asaire and Ginger Rogers.

Hear firsthand how iControl ESI danced through 5.5 million documents partnered with Ipro Eclipse to reduce the corpus to a few thousand.  See how Paragon two-stepped a single 7 TB data set for two different cases using iCONECT Xera to save $1.5 million in review costs for the second case. Marvel at how McDermott Will & Emery tangoed with kCura’s Relativity to save millions in review fees during the Anheuser-Busch InBev merger investigation by the Department of Justice. And awe at Altep’s effortless legwork as Denton LLP reduced a 35k document set to less than 1% in less than 20 days, all with the sophisticated capabilities of advanced analytics.

Speakers to include: Ari Kaplan (Discussion Leader), Founder, Ari Kaplan Advisors; Iram Arras, Vice President, Product Strategy, iCONECT; Jacob Cross, Customer Success Workflow Consultant, kCura; Michelle Drucker, Litigation Paralegal, Dentons; Drew Lewis, Vice President of Innovation, General Counsel, Paragon; Hunter McMahon, JD, CIPT, Vice President of Legal & Consulting Services, Altep; Mike Schubert, Chief Operational Officer, Ipro; Alison Silverstein, Managing Director, McDermott Discovery; Mark G. Walker, Sr., eDiscovery Consultant, iControl ESI.

12:15 – 1:30 PM:

How E-Discovery is Different and How Social Media and Recent Decisions Affect the Landscape

The rules, risks, and responsibilities for Criminal investigations are different from E-Discovery in Civil Cases. Emerging trends in technology and in particular the impact of social media present challenges and opportunities.  This panel will address recent developments including the Second Circuit’s decision in Ganais. It will provide practical suggestions on how to engage the government if you become involved in an investigation, how to navigate the unique rules and e-discovery issues involved in criminal investigations, and why you need to be prepared.

Speakers to include: George Kiersted (Discussion Leader), President, Kiersted Systems; Curt Bohling, Assistant United States Attorney, Chief, Monetary Penalties Unit, United States Attorney’s Office for the Western District of Missouri; Tracy Greer, Senior Litigation Counsel for E-Discovery, US Department of Justice- Antitrust Division; John Haried, Assistant US Attorney, Colorado and Senior Litigation Counsel for Criminal eDiscovery, EOUSA, US Department of Justice; Kathleen Stimpson, Litigation Technology Manager, US Attorney’s  Office, District of Massachusetts.

Information Governance and the Updated FRCP: Speed, Proportionality, Preservation and Ethical Challenges

  • How will the FRCP changes alter legal strategies in the discovery process and thus the information governance efforts necessary to support those strategies?
  • Mapping and categorizing data sets proactively will help information governance professionals identify and preserve potentially relevant information more quickly when the inevitable lawsuit ensues.
  • Defending the identification and preservation processes will depend on effective information governance disciplines while preparing for litigation.
  • Navigating potential ethical challenges with regard to advice on data retention and disposition in light of the updated Rules.

Speakers to include: Robert D. Brownstone, Technology & eDiscovery Counsel and Chair, Electronic Information Management (EIM) Group, Fenwick & West LLP; Julie Colgan, CRM, IGP, Head of Information Governance Solutions, Nuix; John Isaza, Partner, Rimon PC, Jason Stearns, Director, Legal and Compliance Group, Blackrock.

Consumerization and eDiscovery: How Pandora, Netflix and Amazon are Changing eDiscovery Expectations through Analytics

Consumer applications such as Pandora music service, Netflix and Amazon have changed the way we expect information to be presented to us as consumers. We expect them to know what we’re looking for, anticipating our needs based on what we’ve liked in the past, powered by advanced analytics.

Litigation practitioners and corporate counsel should expect the same from their eDiscovery software – finding what they’re looking for without having to specifically ask for it by name.  Use predictive coding to find similar documents and tag them as responsive or privileged.  Come see real life examples of how sophisticated advanced analytics are used in eDiscovery much like they are with consumer applications used by hundreds of millions of people every day, to more intelligently and efficiently process massive amounts of data into manageable and cost-effective collections.

Speakers to include: Ari Kaplan (Discussion Leader), Founder, Ari Kaplan Advisors; Jeff Fehrman, Chief Strategy Officer, Mindseye; Jawahar Jaddu, Director, Product Management, Consilio; Collin Miller, Director of RiskcoveryServices, Altep.

2:00 – 3:00 PM:

Incident Readiness: The Role of Information Governance in Mitigating Breach Exposure

  • Information breaches are increasingly common. In today’s business environment, information is power, and those who control information have the most power.  Bad actors are incentivized to break in, or recruit insiders, to steal data – to sell identities on the black market, as hacktivists to make a socio-political statement, as disgruntled employees and customers to get back at a corporation they think wronged them.
  • In most of the recent high-profile data breaches, the bad actors were in the systems for a long time, acting unbeknownst to their victim and with little resistance; and the scope of the breaches were difficult to quickly ascertain. Most security experts agree that perimeter security is important but isn’t near enough – so what else can we do?
  • In this session our expert panel will explore the relationship between Information Governance and Information Security and answer important questions such as:
    • What role can IG play in helping companies detect breaches more quickly and have greater confidence that they can identify the information that was at risk or stolen?
    • How can IG support an organization’s ability to establish better security protocols and processes?
    • What disciplines exist in a mature IG program that can aid in evaluating the impact of a breach?

Speakers to include: Robert D. Brownstone, Technology & eDiscovery Counsel and Chair, Electronic Information Management (EIM) Group, Fenwick & West LLP; James Arnold, Managing Director, Forensic Services, KPMG LLP; Ari Kaplan, Founder, Ari Kaplan Advisors, Peter Miller, Senior Counsel, Crowell & Moring LLP, Chris Pogue, Senior Vice President, Cyber Threat Analysis , Nuix.

In addition to these, there are other eDiscovery-related sessions today.  For a complete description for all sessions today, click here.

So, what do you think?  Did you attend LTNY this year?  Please share any comments you might have or if you’d like to know more about a particular topic.

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.

Wednesday LTNY 2016 Sessions: eDiscovery Trends

As noted yesterday, LegalTech® New York 2016 (LTNY) is happening this week and eDiscovery Daily is here to report about the latest eDiscovery trends being discussed at the show.  There’s still time to check out the show if you’re in the New York area with a number of sessions (both paid and free) available and over 174 exhibitors providing information on their products and services.

While at the show, we will (for the sixth year in a row!)  be interviewing several industry thought leaders to see what they think are the significant trends for 2016 and, which of those are evident at LTNY.  After the show, we will announce the series of thought leader interviews and identify when each will be published.  Mark your calendars!

Perform a “find” on today’s LTNY conference schedule for “discovery” or “information governance” and you’ll get 54 hits.  So, there is plenty to talk about!  If you get a chance, come check out the session 25 Ediscovery Warnings in 75 Minutes: Common Blunders that Befall Litigation Teams at 3:45pm today where several eDiscovery professionals (including me) will give you tips on eDiscovery issues to avoid!  Other sessions in the main conference tracks include:

10:30 – 11:45 AM:

Questions and Answers: Analytics for Investigations & Compliance

Investigating is about asking questions and finding answers—and analytics can hold the key. Communications mapping, phrase and entity extraction, conceptual groupings, and more are powerful vehicles to help you get where you need to go. Learn from experienced attorneys and data scientists how they’re successfully using a range of data analytics to expedite fact finding, inform decisions, and better support their clients. This session will present practical strategies and real life success stories that you can start replicating right away.

Speakers to include: Alexis Clark (Discussion Leader), Data Scientist, Recommind; Bennett Borden, Chief Data Scientist and Chair of the Information Governance & eDiscovery Group , Drinker Biddle & Reath LLP; Avi Gesser, Partner, Davis Polk and Wardwell; Alex Ponce de Leon, Discovery Counsel, Google.

Intelligent Cloud: Ensuring Governance, Risk, Compliance & e-Discovery in Cloud-Based Applications

Cloud-based applications have exploded over the last few years. These applications allow companies to reduce infrastructure costs, gain flexibility and access enhanced functionality. Without adequate oversight and governance though, companies face increased risks of unauthorized access, theft of IP, and discovery and compliance failures. This panel will take an in-depth look at the risks associated with cloud-based apps and the emerging approaches and technologies being used to mitigate these risks and improve functionality.

Speakers to include: John Loveland (Discussion Leader) , Managing Director, Huron Legal; Peter Baumann, CEO and Co-Founder, Active Navigation; Dean Gonsowski, Vice President, kCura; Mark Jenkins, Sr. Director, Strategic Alliances, Skyhigh Networks; Mike Silano, Lead Solution Architect, Box.

The Science of Predictive Coding: How Has TREC Changed Ediscovery and What Have We Learned From the 2015 TREC Total Recall Track?

Have you heard of TREC – the Text Retrieval Conference? Are you familiar with its research under TREC’s “Legal Track” and its successor, the “Total Recall Track”? Perhaps you are not exactly familiar with TREC’s mission and research activities? How does TREC relate to ediscovery and predictive coding?

This panel will be comprised of TREC veterans and predictive coding gurus. They will provide a summary of the history and purpose of the TREC program and dive deep into ediscovery lessons learned from participating in this scientific research program. Anyone who uses – or is thinking about using – predictive coding in their next ediscovery review project will benefit from learning more about TREC’s research.

Speakers to include: Emily Cobb (Discussion Leader), Associate, Ropes & Gray; Jason R. Baron, Information Governance and eDiscovery Group, Drinker Biddle & Reath LLP, Former Director of Litigation, National Archives and Records Administration; Ralph Losey, Shareholder, Jackson Lewis; Jim Sullivan, Senior Discovery Services Consultant, Kroll Ontrack.

12:30 – 1:30 PM:

Mitigating Risk with Information Governance and Insight – Open To All

In spite of stepped up efforts by most IT departments, organizations continue to face increased risk exposure from gaps in compliance, security and illegal behavior. Unfortunately much of this risk stems from what a company doesn’t know about their data both inside and outside their walls.

In this session, information governance experts will discuss:

  • The importance of gaining insight across your enterprise information
  • How this insight directly impacts your ability to achieve compliance, mitigate risk, and avoid costly penalties
  • The growing expectation of predictive analytics in governance
  • Perspectives on the right strategies, processes, and tools that can help you proactively take action with big data to reduce risk

Speakers to include: Matthew Levy (Discussion Leader), Vice President, eDiscovery, Hewlett Packard Enterprise; Wayne Matus, Managing Director, Global Head of eDiscovery, UBS AG; Robert D. Owen, Partner, Sutherland Asbill & Brennan; Hon. Andrew J. Peck, United States Magistrate Judge, United States District Court, Southern District of New York; Judy Selby, Partner and Co-leader, Information Governance Team, BakerHostetler.

2:00 – 3:15 PM:

Survey Results: How Legal Ops, Analytics, and the Cloud are Reinventing Corporate Legal

Legal operations leaders are driving an unprecedented focus on discovery processes, data security, and the efficiency of outside litigation teams. Ari Kaplan, Hal Marcus, and guest speakers will present findings from the benchmark 2015 Corporate Legal Operations Survey by Ari Kaplan Advisors, featuring insights into cloud readiness, investigations activity, discovery consolidation, performance metrics, and more. Come learn what legal operations leaders are doing (and not yet doing) to optimize security, visibility, and efficiency.

Speakers to include: Ari Kaplan (Discussion Leader), Founder, Ari Kaplan Advisors; Hal Marcus (Discussion Leader), Product Marketing Manager, Recommind; Brent Holmes, eDiscovery Program Director, Siemens Corp.; Alex Ponce de Leon, Discovery Counsel, Google; Dawn Radcliffe, Manager, Discovery & Legal Support, TransCanadaPipelines, Ltd; Rick Schoeneck, Director of Electronic Discovery, Accenture.

Aligning New Technology, Data Protection, and E-Discovery

To be successful, companies must leverage new technologies. However, those great new tools and gadgets often bring complicated risk management issues. How do you effectively meet e-discovery obligations in an evolving world that includes different forms of collaboration, cloud services, BYOD, system upgrades and migrations, and increased compliance requirements? What about the challenges of identifying and preserving data when new technologies are introduced and new sources and types of data are revealed? How far should you dig to find data? Have you had to play catch up to understand the e-discovery impact after rolling out something new? This panel will help you look at ways to help defend the corporation without causing unnecessary backlogs and balance the sometimes competing interests of progress and protection.

Speakers to include: Joanne Lane (Discussion Leader), Associate Director, Investigations & eDiscovery, Merck & Co., Inc.; Jennifer Hamilton, Global eDiscovery Counsel, Deere & Company; Sadie Khodorkovsky, Executive Director, Legal Discovery Management, JPMorgan Chase & Co.; Eric Lieber, Director of Legal Technology, Toyota Motor Sales, USA; Tracey Garland Vinson, Senior Counsel and Director of E-Discovery , Bayer Corporation.

Turning on the Lights in a Dark [Data] Room

Companies, business units and individuals are all amassing huge volumes of disparate data.  One way or another, we are paying for it or not recognizing the opportunity cost associated with all that data.  This is what has led to the term “dark data.” Some organizations are masterfully using dark data to build their business. Yet, others succumb to the costly pains of trudging through small percentages of data amongst their huge data stores in reaction to a legal event.

It’s time for the convergence of expertise and resources in information governance, data analytics, business intelligence, risk management and electronic discovery to build true information intelligence.  This interactive session will enable you to understand what dark data is, why it’s not the same for everyone, and how you can use it to your organization’s benefit without breaking the bank.

Speakers to include: Tom Barce (Discussion Leader), Director of Consulting Services, Kroll Ontrack; Vincent M. Catanzaro, Of Counsel, Shook, Hardy & Bacon LLP; James L. Michalowicz, Senior Manager – Legal Operations Business Performance, TE Connectivity; Clifford E. Nichols, Senior Counsel , Day Pitney.

Slashing E-Discovery Costs: Innovative Approaches and New Alternative Fee Arrangements

In today’s era of cost-cutting, many corporations have begun internalizing key functions that they used to outsource to law firms and service providers. In fact, in 2014 corporations reallocated approximately $1.1 billion from outside legal support to in-house operations to reduce costs. One main area that is ripe for reduction is e-discovery – the largest single litigation cost. This panel will showcase how law firms and service providers can dramatically reduce e-discovery costs and, at the same time, accelerate trial preparedness for their clients, without being forced to in-source this traditionally outsourced function. The session discusses how the “old way” of pricing e-discovery services (per-gigabyte pricing, hourly rates and unrealistic estimates) is being replaced by the “new normal”: a focus on total project cost, fixed fees and performance guarantees.

Speakers to include: Dave Deppe (Discussion Leader), President, UnitedLex; Brian E. Chebli, Vice President, Assistant General Counsel, Legal Discovery Management, JPMorgan Chase & Co.; Christine Hasiotis, Executive Counsel & Director, Legal Support Solutions, Electric Insurance Company; Anthony S. Lowe, Managing Attorney Litigation Operations, Associate General Counsel, Freddie Mac; Farrah Pepper, Executive Counsel – Discovery, General Electric Company; Greg Witczak, Vice President, Deutsche Bank.

3:45 – 5:00 PM:

The New Attorney Experience:  Understanding the Litigation Landscape in 2016 & Beyond

This will be a panel discussion moderated by LexisNexis Application Architect Mike Etgen that will briefly discuss the current state of affairs for litigation, but then quickly move into a discussion of what the Litigation Attorney’s experience will look like over the next 5 years. This session will include valuable market insight into what Attorneys want in their litigation technology and tools, and the impact of the user experience on use and adoption of those tools.  The panel of experts will share their real-world experience around workflow challenges and software adoption. The session will also discuss an array of solutions in the market and offer ways we intend to better support them.

Speakers to include: Michael Etgen (Discussion Leader), Senior User Experience Architect, LexisNexis; Ron Best, eDiscovery Counsel and Director of Legal Information Systems, Munger, Tolls & Olson; David Cowen, President and Managing Director, The Cowen Group; Scott Milner, Partner, Morgan Lewis.

25 Ediscovery Warnings in 75 Minutes: Common Blunders that Befall Litigation Teams

Educational and entertaining!  Join experienced ediscovery moderators in a fast-paced series of live stories from audience members, who will share examples from their own experiences of ediscovery situations gone wrong, explain how the issue was ultimately resolved and share their lessons learned.

From tips to save on monthly data hosting costs and avoid over-collection to knowing what de-duplication protocol to follow, this session will share tactical, practical examples of ediscovery gotchas –in 3 minutes or less each!

Speakers to include: George Socha (Discussion Leader), EDRM Consultant, Socha Consulting LLC; Josh Zybershlag (Discussion Leader), Vice President, Client Experience, Kroll Ontrack.

In addition to these, there are other eDiscovery-related sessions today.  For a complete description for all sessions today, click here.

eDiscovery Daily will also be “tweeting” periodically throughout LTNY, so feel free to check out our updates at twitter.com/Cloud9Discovery.

So, what do you think?  Are you planning to attend LTNY this year?  Please share any comments you might have or if you’d like to know more about a particular topic.

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.

Welcome to LegalTech New York 2016!: eDiscovery Trends

Today is the start of LegalTech® New York 2016 (LTNY) and, for the sixth(!) year in a row, eDiscovery Daily is here to report about the latest eDiscovery trends being discussed at the show.  Over the next three days, we will provide a description each day of some of the sessions related to eDiscovery to give you a sense of the topics being covered.  If you’re in the New York area, I encourage you to check out the show – there are a number of sessions (both paid and free) available and over 174 exhibitors providing information on their products and services.

While at the show, we will (also for the sixth year in a row!)  be interviewing several industry thought leaders to see what they think are the significant trends for 2016 and, which of those are evident at LTNY.  After the show, we will announce the series of thought leader interviews and identify when each will be published.  Mark your calendars!

Perform a “find” on today’s LTNY conference schedule for “discovery” or “information governance” and you’ll get 75 hits.  So, there is plenty to talk about!  Sessions in the main conference tracks include:

9:00 – 10:00 AM:

Keynote Panel Discussion – How is Technology Being Used in Today’s Court Rooms and Cases?

In this session, our panel of United States judges describes what they are currently seeing in their courts regarding big data, analytics, eDiscovery and other technologies.  Discussion points include:

  • How are today’s attorneys incorporating these technologies into their cases?
  • How does managing big data and analytics proactively and employing eDiscovery benefit the litigation process?
  • How do judges view emerging technologies such as products that provide judicial intelligence, including the use of predictive analytics in order to gain insight into judicial behavior?
  • What does the future legal technology landscape look like and how should we prepare?

Speakers to include: Erin E. Harrison (Discussion Leader), Editor-in-Chief, Legaltech News, ALM; Hon. James C. Francis, United States Magistrate Judge, United States District Court, Southern District of New York; Hon. Lorenzo F. Garcia, Chief Magistrate Judge Emeritus, United States District Court, District of New Mexico; Hon. Elizabeth D. Laporte, United States Magistrate Judge, United States District Court , Northern District of California; Hon. Andrew J. Peck, United States Magistrate Judge , United States District Court, Southern District of New York; Hon. Pamela Meade Sargent, United States Magistrate Judge, United States District Court, Western District of Virginia.

10:30 – 11:45 AM:

Taking a Step Back Could Leap You Ahead of eDiscovery

While the best of intentions are there, most of us still wait for a lawsuit, investigation, or data breach before we think about eDiscovery.  In fact, 50% of us still manually search across electronic and paper records when it happens.  Just a little bit of proactive planning can go a long way to help you more efficiently access, evaluate, and respond to legal matters.  Join these experts to learn the baby steps you can take towards more holistic information governance.

Speakers to include: Matthew Levy (Discussion Leader), Vice President eDiscovery, Hewlett Packard Enterprise; Gareth Evans, Partner, Gibson, Dunn & Crutcher LLP; Marty Provin, Executive Vice President, Jordan Lawrence; Michael Simon, Principal, Seventh Samurai.

Protecting the Company’s Crown Jewels in the Age of Information Security Threats

Is all enterprise data created equal? If not, should all enterprise data have the same protections? The ethical pitfalls of well-publicized data breaches, from customer credit card data to employee health records, highlight the increasing need for companies to better secure truly sensitive data. Developing a tiered approach to protecting the company’s “crown jewels” can help reduce costs as well as reduce the risk of future breaches. Hear from a panel of industry experts, including in-house legal and information governance executives, as they discuss the different strategies at work with a “crown jewels” approach and practical steps your organization can take to minimize information security threats.

Speakers to include: Jake Frazier (Discussion Leader), Senior Managing Director, FTI Technology; Michael Lisi, Director of Litigation Support, Fidelity Investments; Sylvan “Sibito” H Morley III, Vice President of IT Infrastructure and Operations, DaVita Kidney Care; Gail Rodgers, Partner, DLA Piper, Jason Stearns, Director, Legal and Compliance Group, Blackrock.

Controlling the Total Cost of Discovery: Tools, Rules, and Accruals

The Great Recession may be over, but the pressure on corporate counsel to keep reducing litigation costs has not subsided. And as volumes of electronic information grow, the expense of dealing with that information in discovery remains a substantial portion of litigation budgets. In this CLE program, legal department professionals will explore three strategies for controlling discovery costs –

  • Tools: How to cut the cost of e-discovery programs by incorporating efficiency-boosting analytics tools into standardized, routine workflows.
  • Rules: How to leverage new amendments to the Federal Rules of Civil Procedure, which hold the promise of reducing costs by increasing the focus on proportionality in discovery.
  • Accruals: How to better understand—and contain—discovery costs by strategically collecting and analyzing discovery-related fees billed by law firms and other service providers.

Speakers to include: Jeanne Somma (Discussion Leader), Discovery Practice Director, DiscoverReady; Marla Bergman, Vice President, Associate General Counsel , Goldman Sachs; Scott Coonan, Senior Director of IP, Litigation & Strategy, Juniper Networks; John Marchese, Executive Director & Associate General Counsel , CME Group; Thane Vallette, Associate General Counsel, HP.

How is the New What:  Re-Thinking Legal Work

This CLE session will address a fundamental shift caused by the impact of technology on the practice of law.  The real technology innovations today are not about the speed, efficiency, or cost of what lawyers do.  They are all about re-thinking how legal work is delivered in the first place.   It will take a long-term view of a wide variety of technologies and aspects of change in the industry, including the structure of legal work and legal services organizations.

It will address aspects of change including:

  • The legal tech startup landscape, and the areas where they are having most impact
  • The new structure of the industry, with more players that aren’t traditional law firms
  • The rise of the legal operations function in in-house law departments and its impact
  • The impact of technology on courts and access to justice
  • Blockchain technology and the prospect of smart contracts
  • The evolving design of legal services and business models in the industry

Speakers to include: Joe Borstein, Esq., Global Director, Pangea3, Thomson Reuters Legal, David Curle, Director, Strategic Competitive Intelligence, Thomson Reuters Legal.

12:30 – 1:30 PM:

TAR 2.0 for Smart People: Moving Beyond E-Discovery Review

Once controversial, Technology Assisted Review (TAR) has gained judicial acceptance and is increasingly used for production reviews. Today, the challenge is to take TAR to the next level, using it for a variety of purposes including early case assessment, inbound productions, privilege protection and more.

Smart legal professionals are using a new protocol called Continuous Active Learning (CAL), which has proven more effective than first-generation TAR engines. With CAL, the system gets smarter as review progresses. That means you find relevant documents more quickly and at lower cost. In addition, CAL is simpler and more flexible, solving TAR 1.0 limitations in dealing with rolling deliveries and low-richness collections.

Join our panel of e-discovery veterans for an informative look at how corporations, government agencies and their law firms are taking advantage of the power of TAR 2.0 with CAL to move beyond simple e-discovery review. Topics include:

  • An introduction to CAL: How it works with TAR 2.0 and why it matters
  • Making TAR 2.0 the standard at your law firm: An e-discovery lawyer’s perspective
  • TAR 2.0 for corporate litigation: in-house and outside counsel’s views, and
  • TAR 2.0 for government agencies: Adapting new procedures in a government setting.

In this hour, we take a hard look at the future of TAR for 2016 and beyond. Attendees will receive a free copy of the newly released second edition of Catalyst’s popular book, “TAR for Smart People: How Technology Assisted Review Works and Why It Matters for Legal Professionals.”

Speakers to include: John Tredennick (Discussion Leader), CEO and Founder, Catalyst Repository Systems, Inc.; Diane Barry, Assistant Attorney General/eDiscovery Attorney, Office of the Attorney General, Commonwealth of Massachusetts, Dera J. Nevin, Director, eDiscovery Services , Proskauer Rose LLP, Daniel J. Polatsek, Partner, Katten Muchin Rosenman LLP, Sharyn M. Procaccio, Vice President, Assistant General Counsel, Hunt Companies, Inc.

2:00 – 3:15 PM:

Ditch That Data to Mitigate Risk and Reduce Legal Spend

The volume of your data increases 40% every year.  Manual processes and legacy systems simply can’t keep up.  Learn practical knowledge on how people, process, and technology can help your organization create a leaner, more value driven information store while mitigating risk and reducing legal spend.

Speakers to include: Greg Clark (Discussion Leader), Chief Field Technologist, Hewlett Packard Enterprise; Barclay T. Blair, Founder & Executive Director , Information Governance Initiative; Mark W. Cowing, Partner, Shook, Hardy & Bacon LLP; Michael Simon, Principal, Seventh Samurai.

Using Analytics in E-Discovery; Swim Instead of Sink in the Era of Big Data

Many generally understand the concept of analytics, but don’t know how to apply these technology advancements to achieve practical benefits during the e-discovery process. Data mining technology, and the visual representation of mined data, offer a paradigm shift for how legal teams can uncover key facts. These technologies can quickly and effectively reveal the small subset of critical data in a universe of hundreds of millions of emails, effectively circumventing comprehensive review or greatly accelerating the review process. Attendees will learn about common analytical and visualization technology and how practitioners are applying these tools to speed fact-finding, reduce e-discovery costs and avoid ethical pitfalls.

Speakers to include: Kathryn McCarthy (Discussion Leader), Senior Managing Director, FTI Technology; Nia Castelly, E-Discovery Counsel, Google; Sandra Rampersaud, Litigation Attorney, Cravath; Jessica Ross, Vice President, Litigation & Regulatory, Deutsche Bank.

Innovation or Inertia in eDiscovery: How Far Have We Come and Where Do We Need to Be?

Once, the very idea of eDiscovery itself was innovative. Today, we are years beyond eDiscovery as a novel concept, but some would argue that true innovation in the industry has been slow to arrive. Yet, innovation is critical to our ability to meet increasingly demanding regulatory requirements, manage constantly escalating costs, and control ever-evolving risks. The panel will discuss innovation in eDiscovery from the perspective of corporate users. Panelists will discuss how their current workflows have kept up with rapidly changing technology and increasingly stringent cost pressures. The discussion will address some of the key challenges facing the industry in the next five years and what types of innovation will be needed to overcome them, as well as the factors that will enable or stifle that innovation.

Speakers to include: Priya Keshav (Discussion Leader), Managing Director, KPMG LLP; Jeff Nass, Senior Counsel, eDiscovery, Boehringer Ingelheim, Kara Ricupero, Head of eDiscovery and Records and Information Management, eBay, Brett Tarr, Counsel and Director of Ediscovery, Caesars Entertainment Corporation.

Away With Words: The Myths and Misnomers of Conventional Search Strategies

Unparalleled advances in computing power and the ability to rapidly analyze data have been major drivers of business growth in the information economy. Traditional businesses have also come to rely heavily on analyzing data rapidly to make business decisions. This—while the volume, variety and velocity of data is increasing exponentially. One sector that has noticeably lagged behind is the legal industry. Relying on decades-old tools, technology and processes will not meet the challenges of finding, analyzing and deriving knowledge from the data deluge we are experiencing. This has to change. Fortunately, it is about to.

Speakers to include: Tom Barnett, Special Counsel eDiscovery and Data Science, Paul Hastings LLP; Ed Sohn, Sr. Director, Client Services, Thomson Reuters Legal.

3:45 – 5:00 PM:

Don’t Let Your Information Undermine Cybersecurity

Security is not a corporate IT problem, and failure to address it risks not just fines and financial loss, but long-term brand erosion.  The information governance you implement provides a critical understanding of the what, where, and who of your or your clients’ data that can move you closer to preemptive cybersecurity.  This session discusses how an end-to-end information governance strategy can help you protect your data assets and ethical obligations to your clients’ security.

Speakers to include: Doug Weiner (Discussion Leader), Senior Counsel, Cyber Security, Hewlett Packard Enterprise; Joseph S. Abrenio, Vice President, Delta Risk LLC, A Chertoff Group Company; Martha Berek, Associate General Counsel, IT & Corporate Operations, United Technologies Corporation; James A. Merrifield, Information Governance Manager , Robinson & Cole LLP; Julia Montgomery, Solution Architect, Onguard Security Awareness, Traveling Coaches, Inc.

Advice from Counsel: How Legal Departments are Innovating & Disrupting the E-Discovery Process

Alternative billing models. Microsoft Office 365 and other cloud data sources. Cross-border litigation. The rise of machine learning and AI. From technical needs to business processes, the legal industry is riding the wave of innovations affecting the greater technology landscape. How are leading in-house legal teams adapting and evolving in their strategies to handle or even drive these disruptive forces? And what implications do these innovations have for the law firms that serve them? This session will feature results from the 2016 Advice from Counsel study on the disruptive forces affecting corporate counsel as well as strategies and hacks for embracing changes in legal technology for 2016 and beyond.

Speakers to include: Sophie Ross (Discussion Leader), Senior Managing Director, FTI Technology; Marla Bergman, Vice President, Associate General Counsel, Goldman Sachs; Kelly Clay, Senior Counsel and Director of Information Management , GlaxoSmithKline; Magistrate Judge Paul Singh Grewal, United States District Court , Northern District of California; Dera J. Nevin, Director, eDiscovery Services, Proskauer Rose LLP; Jessica Richheimer, Associate, Ropes & Gray.

Information Governance in Action: Data Reduction

This panel of distinguished information governance leaders will detail drivers for defensible data reduction and how its link to larger data governance and big data concerns make data reduction corporate requirement. Actual global governance designs, implementations and use cases will be detailed. The presentation and discussion will include details on secure, compliant data reduction around the full universe of information governance needs, and how to justify budget. The presentation will incorporate specific industry knowledge, experience and leading practices that have led to actionable recommendations for Fortune 100 global organizations. It will detail how data reduction is a mitigating factor against privacy, confidentiality and intellectual property breaches due to large and unmanageable information volumes. It will also include a discussion of how organizations have benefitted from Information Governance development and implementation.

Speakers to include: Steve Stein (Discussion Leader), Principal, KPMG LLP; Richard P. Kessler, Executive Director, Information Lifecycle Governance, UBS, David Smythe, Information Lifecycle Management; Firmwide Data Management, JPMorgan Chase, Jason Stearns, Director, Legal and Compliance Group, Blackrock.

Managing Data Security and Privacy in Litigation: Securing Every Link in the Chain

It’s difficult enough to effectively secure private and sensitive information within a company’s own four walls; when information flows into litigation discovery, weak links in the data security chain create substantial additional risk. In this CLE program, in-house counsel and e-discovery professionals will discuss how they manage this risk and protect the company’s valuable data assets. The panelists will address:

  • Data security expectations for e-discovery providers and law firms;
  • Measures to protect information turned over to opposing parties and the court; and
  • Effective ways to screen for uber-sensitive information like trade secrets, source code, unreleased products, and personally identifying information.

Speakers to include: Amy Hinzmann (Discussion Leader) , EVP, DiscoverReady; Ruth Hauswirth, Special Counsel and Director of Litigation and E-Discovery Services and Senior Attorney, Cooley LLP, Allan Hsu, Director, eDiscovery/Litigation, Fannie Mae, Chris Sitter, EnCE, eDiscovery & Digital Forensics Senior Manager, Juniper Networks, Michelle Spak, Associate General Counsel, Duke Energy Corporation.

The Ediscovery Question Challenge, If You Choose to Accept

Do you have an ediscovery ‘headache’ that will not subside?  Are you perplexed by an ediscovery question that seems to have no answer? Do you want expert advice, but don’t want to pay consultancy rates?  Join our session to ask the assembled panel of ediscovery experts the seemingly impossible and difficult questions.  They like a challenge, so if you are currently dealing with pricing or budgeting issues, poorly managed processes, or just have a complex data nightmare – submit your toughest questions to our panel of ediscovery experts (they can handle it).  Maybe you don’t have an impossible question, that’s great!  You are welcome to ask a random ediscovery question, or request more information around a nuanced ediscovery topic during this interactive session.  The most-challenging question just might win a prize.  Is this a challenge you are willing to accept? If so submit your questions here:  http://lms.tr.com/LTNY2016

Speakers to include: Greg McPolin (Discussion Leader), COO, Thomson Reuters; Scott Reents, Senior Associate and Discovery Counsel, Clearly Gottlieb Steen & Hamilton LLP; Ed Sohn, Sr. Director, Client Services, Thomson Reuters Legal; Martin Tully, Partner, Akerman LLP, Skip Westfall, FVS Managing Director – FTS Practice Leader, Grant Thornton LLP.

In addition to these, there are other eDiscovery-related sessions today.  For a complete description for all sessions today, click here.

eDiscovery Daily will also be “tweeting” periodically throughout LTNY, so feel free to check out our updates at twitter.com/Cloud9Discovery.

So, what do you think?  Are you planning to attend LTNY this year?  Please share any comments you might have or if you’d like to know more about a particular topic.

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.

Thanks to ACEDS and Rob Robinson, I Have a LegalTech “Travel Day” Topic to Cover: eDiscovery Trends

LegalTech® New York 2016 (LTNY) starts tomorrow!  As I painfully learned a couple of years ago, travelling to LTNY can sometimes be challenging, so I’m leaving plenty of time to get there this year, which leaves me little time to write a post for today.  Thankfully, the New York Metro Area chapter of ACEDS and Rob Robinson (author of the terrific Complex Discovery site) have just published a podcast about eDiscovery trends that I think you will find quite informative!

Joe Bartolo of Kiersted Systems and Bradley Schaffel of Wilmer Hale host this latest edition of the ACEDS New York Metro Area podcast series, which is an interview with Rob covering a variety of topics, including his thoughts on the automation trend within the eDiscovery industry, a discussion of the four generations of eDiscovery technology (which we covered previously here), the emergence of SaaS providers in the industry, requirements for a complete eDiscovery solution and Rob’s take on various useful industry resources.  Well worth a listen if you can find a free 16:16 (i.e., 16 minutes and 16 seconds) during your day.  :o)

A link to the podcast can be found on the Complex Discovery site here.  Thanks guys, I owe you one!

So, what do you think?  Are you attending LegalTech this week?  If so and if you see me, say “hi”!  Please share any comments you might have or if you’d like to know more about a particular topic.

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.