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Electronic Discovery

Germans Order Facebook To Change How it Collects User Data: Data Privacy Trends

Two days, two stories about Germans finding fault with companies’ handling of personal data.

According to Law360 (Facebook Ruling Gives Antitrust Weight To Data Privacy, written by Ben Kochman – subscription required), Germany’s Federal Cartel Office ordered Facebook last week to give users the right to opt in or out before the company merges data gleaned from users’ activity on other websites and apps to their Facebook accounts. Facebook uses this type of data, including from its own WhatsApp and Instagram as well as from third-party websites with its “like” or “share” buttons, to amass detailed profiles on consumers that fuel its lucrative targeted advertising operation.

Facebook users can reasonably expect that the social network is monitoring its activity on the platform for targeted advertising purposes, the German regulator said. But to extend that tracking to third-party sites — including those that have the company’s invisible Facebook Analytics software installed — without asking users first amounts to “exploitative abuse,” it said, in which the company is abusing its unique position as a social media giant for which users have no real replacement.

“In view of Facebook’s superior market power, an obligatory tick on the box to agree to the company’s terms of use is not an adequate basis for such intensive data processing,” FCO President Andreas Mundt said in a statement announcing the ruling.

The FCO explained its logic in a Q&A attached to the decision. Even though users do not suffer a financial loss from Facebook’s data collection, “the damage for the users lies in a loss of control,” the regulator said.

“They are no longer able to control how their personal data are used,” the authority wrote. “They cannot perceive which data from which sources are combined for which purposes with data from Facebook accounts and used e.g. for creating user profiles.”

“Due to the combining of the data, individual data gain a significance the user cannot foresee,” it added.

Facebook immediately pushed back, arguing in a blog post that the FCO “underestimates the fierce competition we face in Germany,” including from YouTube, Snapchat and Twitter.  The ruling “misapplies German competition law to set different rules that apply to only one company,” wrote the post by Yvonne Cunnane, head of data protection for Facebook Ireland, and company Associate General Counsel Nikhil Shanbhag. Facebook vowed to appeal the case and has a month to do so.

“There’s a sentiment issue here. People are developing feelings about Facebook, especially after what happened with Cambridge Analytica,” Pam Dixon, executive director of the World Privacy Forum (a consumer privacy nonprofit) said. “I wonder if Facebook is having a tin ear here to what its customer base really wants.”

So, what do you think?  Is this just the beginning of data privacy reform?  And, will “zee germans” have anything else to say about data privacy soon?  Please share any comments you might have or if you’d like to know more about a particular topic.

Image Copyright © Columbia Pictures Corporation

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.

In Today’s Privacy Environment, That’s the Way the (Website) Cookie Crumbles: Data Privacy Trends

It’s only been three weeks, but we’ve already talked plenty about the first big GDPR fine of €50 million (or about $56.8 million) fine to Google for failing to comply with GDPR.  Sure, you’re thinking “that’s Google, I can see how they got fined, but nothing to worry about here”.  Right?  Well, you may want to think again.

As covered in Alston & Bird’s Privacy and Data Security Blog (Google-Style GDPR Fines for Everyone? Bavarian DPA Conducts Website Cookie Practices Sweep, Announces Fines under Consideration, written by Daniel Felz; hat tip to Rob Robinson’s Complex Discovery blog for the link), last week, the Data Protection Authority (DPA) of the German state of Bavaria announced it was considering fining a number of companies under the GDPR for their website cookie practices.  None of these companies appear to be in Google-style tech industries.  The Bavarian DPA’s action potentially signals that cookies, user tracking, and online advertising are not a ‘tech industry issue,’ but instead a priority issue for companies irrespective of their industry – and one that can carry GDPR fine risk.

In an online publication, the Bavarian DPA announced it had conducted a sweep of 40 large companies’ website cookie and user tracking practices.  While the identities of these companies have not been published (as is common in Continental European agency investigations), the Bavarian DPA identified the industries in which the companies were active – and no company was identified as a technology company.  Following its sweep, the Bavarian DPA announced that none of the 40 companies it had audited had built GDPR-compliant cookie/tracking practices into their websites.  As a result, the Bavarian DPA has announced it is considering GDPR fines.  The companies audited were from industries ranging from online retail to sports to banking & insurance to media, even automotive & electronics and home and residential.

The Bavarian DPA found the following violations:

  1. Websites lacked the transparency needed for “informed” cookie consent. 30 of the 40 audited websites did not provide sufficiently transparent disclosures to users regarding the website’s use of tracking technology;
  2. No “prior” consent was collected from users. The Bavarian DPA indicated that for most of the 40 websites, cookie data was “automatically” sent data to third-party cookie providers as soon as the user visited the website;
  3. The consent obtained was not sufficiently “active”. The Bavarian DPA’s position is that cookies and “tracking scripts” should be blocked until “the user has actively consented.” The interesting thing here is that the Bavarian DPA noted that most of the 40 websites used cookie banners to inform users about their use of cookies, but that none of these banners resulted in effective consent being collected from the user.  As the article notes, it may be that none of the websites integrated a cookie-blocking function prior to ‘consent events’ being logged.

As the article notes, the larger point of the Bavarian DPA’s action is that cookie compliance appears to be becoming a front-burner issue for EU privacy regulators – and an issue that can generate fines.  Which means it should probably be a front-burner issue with companies out there as well.  Oh, and by the way, Alston & Bird’s blog also has a countdown to the effective date of the California Consumer Privacy Act (CCPA) — 328 days and counting by the time you read this, so get ready for more compliance challenges in the future.

So, what do you think?  Will this change how companies implement tracking cookies in their websites?  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.

Court Denies Non-Party’s Request to Quash Subpoena in Telecommunications Dispute: eDiscovery Case Law

In Fair v. Commc’ns Unlimited Inc., No. 4:17 CV 2391 RWS (E.D. Mo. Jan. 16, 2019), Missouri District Judge Rodney W. Sippel denied the motion to quash discovery filed by non-party Charter Communications (Charter), finding that the plaintiff had demonstrated that she had been unable to obtain the information from the defendants, that her request was not overbroad or unduly burdensome, that the information requested would not disclose personally identifiable information (PII) and that any sensitive or confidential information could be protected with redactions or a protective order.

Case Background

In this dispute regarding alleged misclassification of the plaintiff and other technicians as independent contractors, the court previously granted conditional certification to an opt-in class of Technicians who installed cable on behalf of the defendant.  On May 11, 2018, the plaintiff served a subpoena on Charter, noticing a 30(b)(6) deposition of a corporate representative and requesting four categories of documents: (1) any agreements between Charter and defendants, (2) applications used by Charter to track technicians, (3) technician information stored in those applications, and (4) the size, number, and types of emails exchanged between Charter and defendants during a three year period representing the window of time for which potential opt-in class members would have worked for Defendants.

On July 24, Charter filed this motion to quash the plaintiff’s subpoena, representing that she sought the same information from the defendants three times, and that she had not received any responsive documents by when she served the subpoena, or by August 7, when she filed her response in opposition. After the plaintiff’s second motion to compel against the defendants was granted, they agreed to provide the plaintiff with any agreements they had with Charter, but she continued to maintain “her entire subpoena to Charter is valid.”

Judge’s Ruling

Judge Sippel addressed each of Charter’s arguments for quashing the subpoena, as follows:

  • Any agreements or emails it has exchanged with Defendants and their employees are more conveniently obtained from Defendants: “Fair sought this information from the parties three times before seeking it from Charter”;
  • Fair’s request is overbroad, because it is not related to the narrow question of how Defendants pay their employees: “Charters’ application information, agreements, and emails are also necessary to demonstrate how much control Defendants exercised over the Technicians… As a result, Fair’s request is not overbroad or unduly burdensome.”;
  • Complying with the subpoena would violate customer privacy because it would reveal the addresses of customers: “The only data that Fair seeks from the tracking applications include Technicians’ contact information, identification numbers, and time stamp data…Fair also asks that Charter “identify” certain aspects of the tracking applications, but only in general terms… Charter’s PII argument is without merit.”;
  • The requested information includes sensitive and confidential commercial information: “if any of the requested documents would disclose sensitive or confidential commercial information, Charter can protect that information with redactions or a protective order.”

As a result, Judge Sippel denied Charter’s motion to quash the plaintiff’s subpoena.

So, what do you think?  Was the judge correct in rebutting Charter’s objections?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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.

EDRM Releases the Final Version of its TAR Guidelines: eDiscovery Best Practices

During last year’s EDRM Spring Workshop, I discussed on this blog that EDRM had released the preliminary draft of its Technology Assisted Review (TAR) Guidelines for public comment.  They gave a mid-July deadline for comments and I even challenged the people who didn’t understand TAR very well to review it and provide feedback – after all, those are the people who would hopefully stand to benefit the most from these guidelines.  Now, over half a year later, EDRM has released the final version of its TAR Guidelines.

The TAR Guidelines (available here) have certainly gone through a lot of review.  In addition to the public comment period last year, it was discussed in the last two EDRM Spring meetings (2017 and 2018), presented at the Duke Distinguished Lawyers’ conference on Technology Assisted Review in 2017 for feedback, and worked on extensively during that time.

As indicated in the press release, more than 50 volunteer judges, practitioners, and eDiscovery experts contributed to the drafting process over a two-year period. Three drafting teams worked on various iterations of the document, led by Matt Poplawski of Winston & Strawn, Mike Quartararo of eDPM Advisory Services, and Adam Strayer of Paul, Weiss, Rifkind, Wharton & Garrison. Tim Opsitnick of TCDI and U.S. Magistrate Judge James Francis IV (Southern District of New York, Ret.), assisted in editing the document and incorporating comments from the public comment period.

“We wanted to address the growing confusion about TAR, particularly marketing claims and counterclaims that undercut the benefits of various versions of TAR software,” said John Rabiej, deputy director of the Bolch Judicial Institute of Duke Law School, which oversees EDRM. “These guidelines provide guidance to all users of TAR and apply across the different variations of TAR. We avoided taking a position on which variation of TAR is more effective, because that very much depends on facts specific to each case. Instead, our goal was to create a definitive document that could explain what TAR is and how it is used, to help demystify it and to help encourage more widespread adoption.”  EDRM/Duke Law also provide a TAR Q&A with Rabiej here.

The 50-page document contains four chapters: The first chapter defines technology assisted review and the TAR process. The second chapter lays out a standard workflow for the TAR process. The third chapter examines alternative tasks for applying TAR, including prioritization, categorization, privilege review, and quality and quantity control. Chapter four discusses factors to consider when deciding whether to use TAR, such as document set, cost, timing, and jurisdiction.

“Judges generally lack the technical expertise to feel comfortable adjudicating disputes involving sophisticated search methodologies. I know I did,” said Magistrate Judge Francis, who assisted in editing the document. “These guidelines are intended, in part, to provide judges with sufficient information to ask the right questions about TAR. When judges are equipped with at least this fundamental knowledge, counsel and their clients will be more willing to use newer, more efficient technologies, recognizing that they run less risk of being caught up in a discovery quagmire because a judge just doesn’t understand TAR. This, in turn, will further the goals of Rule 1 of the Federal Rules of Civil Procedure: to secure the just, speedy, and inexpensive determination of litigation.”

EDRM just announced the release of the final version of the TAR guidelines yesterday, so I haven’t had a chance to read it completely through yet, but a quick comparison to the public comment version from last May seems to indicate the same topics and sub-topics that were covered back then, so there certainly appears to be no major rewrite as a result of the public comment feedback.  I look forward to reading it in detail and determining what specific changes were made.

So, what do you think?  Will these guidelines help the average attorney or judge better understand TAR?  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.

Relying on Interpretation of the SCA, Appeals Court Reverses Subpoenas Against Facebook: eDiscovery Case Law

In Facebook, Inc. v. Wint, No. 18-CO-958 (D.C. App. Jan. 3, 2019), the District of Columbia Court of Appeals, stating that “[t]he plain text of the SCA (Stored Communications Act) thus appears to foreclose Facebook from complying with Mr. Wint’s subpoenas”, concluded that the appellee “has not established the existence of a serious constitutional doubt that could warrant application of the doctrine of avoidance” reversing the trial court’s order holding Facebook in civil contempt for refusing to comply with subpoenas served by appellee Daron Wint.

Case Background

The appellee was charged with murder in D.C. Superior Court. Before trial, he filed an ex parte motion asking the trial court to authorize defense counsel to serve subpoenas duces tecum on Facebook and a Facebook subsidiary for records, including the contents of communications, relating to certain accounts. Facebook objected, arguing that the SCA prohibits Facebook from disclosing such information in response to a criminal defendant’s subpoena. The trial court approved the subpoena request and held Facebook in civil contempt for failing to comply.

The case was argued back before the appellate court back in October 2018.

Appeals Court Ruling

In the appellate court opinion issued by Associate Judge McLeese, he noted that “In the trial court, Mr. Wint argued that if the SCA were interpreted to preclude Facebook from complying with the subpoenas at issue, then the SCA would be unconstitutional. Mr. Wint has not renewed that argument in this court, however, and that argument therefore is not before us. Rather, Mr. Wint has argued in this court only that the SCA is properly interpreted to permit Facebook to comply.”  He also noted this:

“The SCA broadly prohibits providers from disclosing the contents of covered communications, stating that providers “shall not knowingly divulge to any person or entity the contents” of covered communications, except as provided…The SCA contains nine enumerated exceptions to this prohibition…Mr. Wint does not rely on any of those exceptions, and none of them applies in the present case. The plain text of the SCA thus appears to foreclose Facebook from complying with Mr. Wint’s subpoenas.  The structure of the SCA points to the same conclusion.”

The opinion also noted that Section 2702 (Voluntary disclosure of customer communications or records) and Section 2703 (Required disclosure of customer communications or records) of the SCA “appear to comprehensively address the circumstances in which providers may disclose covered communications. Those circumstances do not include complying with criminal defendants’ subpoenas.”  The opinion also noted that “Authority from other jurisdictions also favors a plain-language reading of the SCA. As far as we have determined, every court to consider the issue has concluded that the SCA’s general prohibition on disclosure of the contents of covered communications applies to criminal defendants’ subpoenas.”

The appellee pushed for an alternative interpretation of § 2702, which addressed only the circumstances in which providers may voluntarily disclose covered communications and did not address compliance with court-ordered disclosures, such as subpoenas. In support of this interpretation, the appellee relied on six principal contentions, which were discussed in detail in the opinion. However, the opinion stated:

“Although some of Mr. Wint’s contentions have some force, on balance we are not persuaded by Mr. Wint’s argument.”

As a result, the appellate court reversed the trial court’s order holding Facebook in civil contempt for refusing to comply with subpoenas served by the appellee.

So, what do you think?  Does the SCA, which has been in effect for over thirty years, adequately the rights to request data from providers in 2019?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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.

Observations about Legaltech 2019 from Attendees, Part Two: eDiscovery Trends

As I’ve done the past three years, I reached out to several attendees of Legaltech New York (LTNY) 2019 (some of whom I met with during the show) to get their thoughts and impressions of this year’s show.  We had so many people respond that I decided to split their feedback into two posts.  Yesterday was the first half, here are the remaining observations.  And, no, I didn’t split this into two posts just so I could save myself another day of writing, my observations are at the bottom of this post.  ;o)

As always, these should be taken as their personal opinions and observations regarding the show, not those of their employer or clients (even when they’re talking about the cost of breakfast at the Hilton).  Here are additional observations from attendees of the show:

“My observation was that most companies are working on the same goal(s) that they were last year.  It appears that most companies are still working towards an integrated platform, from collection to production.  Some companies have made strides to making a more cohesive product while others have acquired the tools/products/companies to start their journey.  I didn’t hear as much about Relativity as I have in previous years though RelativityOne is still a product that most companies are ‘keeping an eye on’.  Overall, it was another great Legal Tech and crazy that it was warmer in NYC that most of the country.”

— Eric Kelting, Co-Founder, Complete Legal

“1. I felt like the event overall was extremely smaller than it’s ever been.

  1. I also think that the vendors are getting more creative out of necessity to drum up more engagements.
  2. They had good speakers but it’s time for a new chapter in our space. I think they should look at how to bridge a few gaps.
  3. 2019 is about Masters resolving these issues. We want to make sure the industry is getting what they need. New masters, new and exciting content and more.
  4. IBM is way over played these days. They have had the same keynote for two years. He came across as also tired of his own presentation.

All in all, we are in a unique time with legal and technology. Innovations are happening everyday while tried and true solutions are getting better. You have companies acquired which paves the way for new innovation and development. It will be one of the most interesting two years is my prediction.”

— Robert Childress, Founder of The Masters Conference

“This year’s Legalweek was a pleasant surprise after all of the changes and lack of enthusiasm we saw at last year’s show. My top observation is that I had numerous conversations around diversity and inclusivity that may have been spurred by The DAT File podcast Cat Casey and I did with Brandon Law the week before the conference and then fueled by the open letter from 170 general counsel that was posted at beginning of week. Overall, it was an excellent week that helped me reconnect with my network and meet new people with interesting perspectives on the growth of our industry. Additional observations are that more people asked me about personal branding, and I saw more corporations were in attendance bringing small teams to participate in sessions and learn more about eDiscovery.”

— Maribel Rivera, Marketing Consultant

“The highlight for me was that I paid $48 for oatmeal at the Hilton. I seem to have this problem at all Hilton hotels. You sit down for the buffet breakfast and they don’t tell you that it’s $48 whether you east a single raisin or five servings of scrambled eggs. All I ate was a $3.00 bowl of oatmeal and the bill was still $50.”

— Mike Quartararo, Managing Director, eDPM Advisory Services

“This year really seemed to solidify a trend we’ve been seeing at Legalweek for the past couple years—the real conference that happens outside of the conference.  While the expo floor will always be the best place to take in a bunch of new tech and bump into friends and connections, there seemed to be more events happening outside of the Hilton than ever before.  These also extended well beyond happy hours and lunches to bespoke programming like session tracks, hands-on exercises, and amazing guest speakers.”

— Shawn Gaines, VP of Marketing for Relativity

“I did some asking around, checking in with friends and colleagues.  Here is what emerged:

  • Many felt a chill in the air, and we aren’t just talking polar vortex. As one person remarked, ‘Not allowing folks to walk around for free (or nearly free) kills the value of the event, from my point of view.’ As someone else noted, ‘It would be nice to see smaller admission packages with educational tracks still attached.’ On the positive side? The addition of cyber cafes and more seating near the sessions and conference floor.
  • Acquisitions continue apace – OpenText’s acquisition of Catalyst being the most recent example – and private equity money keeps pouring in. While there are benefits here, people I talked with focused on the dangers, such as the stereotypical PE 3-year build-and-sell strategy that might ultimately hinder the industry more than help it.
  • Four key areas highlighted at the conference were cloud (Seems to have more eDiscovery vendors host the data in cloud… Most are primarily US based vendors serving US markets.), analytics (‘Visual analytics and dashboard seems to be more prominent in every eDiscovery tool I’ve seen.’), mobile (‘Continued interest in mobile device developments. Specifically emojis.’), and ease of use (‘I’ve seen a few vendors where they made their review platform very click friendly, which looks very primitive to me, but seems to appeal to the general reviewers.’).”

— George Socha, Managing Director, BDO

And, here are my observations from the show:

For the first time since I’ve been writing the eDiscovery Daily blog, I didn’t ask for a press pass this year.  I was simply too busy with customer and analyst meetings, coordinating our NineForum sessions at the booth and so forth.  So, I didn’t attend any sessions and don’t have specific feedback on any sessions.  I heard good things about some of the sessions and ALM certainly lined up some terrific speakers (as they always do), so I expect they were high quality.

As for what I did observe, the show definitely appears smaller and that was certainly reflected in the exhibit hall, which seemed to have considerably less exhibitors than in years past.  I know part of that trend is consolidation in the industry, but I also know of several companies still around that used to exhibit, but don’t anymore.  Why not?  Clearly, they don’t feel they’re getting the ROI that makes it worthwhile to do so.  Part of that could be attributable to ALM’s decision a few years ago to start charging for admission to the exhibit hall, part of that could be due to changing ways on how customers choose to learn about potential software and services options today.  I would be very interested to see ALM just try one year to go back to the free access to the exhibit hall (yes, I know this will mean a lot of people who have no interest in buying anything, but it might also bring in some more people who are, but don’t want to pay to learn about software and services) to see if that reverses a trend to bring back some exhibitors.  Certainly, it seems worth a try to reverse a trend toward shrinking attendance that threatens the very conference itself.

More and more, Legaltech has become about the meetings around the show itself and not the actual show (many of which are in suites at surrounding hotels).  I would be interested to find out what percentage of people come to Legaltech that never attend a session or visit the exhibit hall.  I’ll bet that percentage is growing…significantly.  There’s a big difference between people who are at Legaltech and the people who are in Legaltech – that second group seems to be shrinking every year.

So, what do you think?  Did you attend Legaltech last week?  What did you think of this year’s show?  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.

Observations about Legaltech 2019 from Attendees, Part One: eDiscovery Trends

We’ve completed Legaltech New York (LTNY) 2019.  What did attendees at the conference think about this year’s show?  Let’s take a look.

As I’ve done the past three years, I reached out to several attendees (some of whom I met with during the show) to get their thoughts and impressions of this year’s show.  As always, these should be taken as their personal opinions and observations regarding the show, not those of their employer or clients.  We had more people than ever respond with their thoughts, so thanks to all who did!  So many that we’re going to spread these observations over two days.  Here we go!

“This was my 23rd LegalTech conference, and one of the most enjoyable in memory despite the intense cold.  But, my joy sprung from seeing old friends and interviewing Bob Woodward at the E-Discovery Heroes awards.  The central event, LTNY 2019 (who calls it LegalWeek?), lacked the crowds and sprawl of its storied past, shrunken in sympathy with the consolidating vendor community.  I predict it will soon be but a single bustling floor, down from the raucous and rambling three or four it once commanded.  Most everything else about the incredible shrinking LegalTech was business-as-usual with the sad exception of the educational tracks, which have never been less engaging nor more distant from the intersection of law and technology from a practitioner’s perspective.  Experience was paper thin and paper-centric; the distance between the lawyer presenters and the technologies they discussed was scarily evident.

I felt I’d stumbled into a conference about managing the international legal industry, not about using technology in the practice of law.  That may be as much a comment about this old trial dog as about LegalTech itself.  Litigators no longer do; they delegate.  No lawyer I heard on a dais had ever tried a case, save for a few judges and former attorneys general who’d done it when fax machines were cutting edge.  It made me long for the days when LegalTech was exciting because of what was inside the Hilton instead of the many events and networking opportunities orbiting its faded gravity.  ALM is starting to feel more like AOL: overdue for a cold reboot.”

— Craig Ball, Lawyer Technologist

“Although I didn’t attend any sessions this year, I always enjoy seeing long-time friends. I was honored to attend Mary Mack’s bloggers luncheon and spend time with some of my mentors. It was sad to see the exhibitors’ area shrink again this year. Nikolai and I partnered up to record an educational video, so keep an eye out for that!”

— Amy Bowser-Rollins, Editor of LitigationSupportGuru.com

“I am amazed every year at this annual event, Legal Tech.  The participation and involvement by the legal industry, including judges, attorneys, technologists, and legal professionals from the government, corporations, and vendors. This year proved no different.  This year’s Legal Tech event affirmed we work in an incredible eDiscovery community and industry.  More consolidation yet new players introduced themselves.  And the community remains strong and supportive.  Great panels, fun parties, education and friendship….networking and strengthening relationships.  The icing on the cake was the snow.  Sadly no blizzard this year but we did get the cold and snow…. It was great seeing you all and here is to everyone having an amazing and successful 2019….”

— Kevin M. Clark, Litigation Support Manager at Thompson & Knight LLP

“Negatives:

  1. I wish I had a dime for every time I heard ‘AI’ …. nobody can explain what it is but everybody is selling it and they have the best.
  2. Lot of vendors and law firms talking about how innovative they are … very few sessions of any real substance for end users.  Couple of exceptions were Access to Justice featuring Maura Grossman. Jim Sandman of LSC and Judge Xavier Rodriguez and a demo on O365 Advanced Discovery by Rachi Messing.
  3. Lots of activity outside the show hotel …many, many folks doing demos at hotels within a block of the show. Clearly drained attendees off site.
  4. Which is OK because the Hilton is dingy, narrow, ill lit and poorly managed.   BRING BACK HENRY DICKER!!

Positives:

  1. Great B2B venue…I see people I just don’t get to see much otherwise:  Michael Arkfeld, Rachi Messing, Lincoln Mead, Henry Dicker, Craig Ball ….. oh, never mind!
  2. Some off site sessions were great …..client focused, great speakers, well worth the walk even in 5 degree weather.
  3. Good place to see what ‘big fish’ in the market are doing even if it doesn’t really apply to me and the client space where I work”

— Tom O’Connor, Director, Gulf Coast Legal Tech Center

“The thing I enjoy the most at LTNY is connecting with my vendors and colleagues.  There’s no substitute for meeting folks in person and spending time in a casual setting with them.

I say again:  Either have LTNY in the summer, or have it in Florida in January.

Disco’s Legaltech NY cartoons were legendary.  Seriously, I want to buy some of those as framed art work for our Discovery Operations area.  Where can I get them?”

— Janice Jaco, eDiscovery Project Manager at Keesal, Young & Logan (on long-term secondment at Walmart’s Home Office)

“The show floor seemed to be a little smaller in size and appears to be more very niche around eDiscovery, Investigations and Compliance. In the past, there were more general law firm software providers, but that seems to be dwindling. The focus on the Cloud also continues to be very big. As usual, there appeared to be a lot of meeting activity and many meetings outside the show – more than ever, it seems.

GDPR was talked about a lot this year, but I did not see a lot of software purely focused on that space, though it was clear there is an increased focus on compliance and investigations, in addition to the traditional focus on litigation.

One trend I noticed this year is the tremendous amount of private equity investors attending this year. The lobby seemed to be full of PEs and Investment Bankers all looking for their next investment.  Between that and all of the investment announcements we’ve seen recently (including our own announcement last year about our affiliation with Peak Rock Capital and our acquisition of the LexisNexis eDiscovery suite), it’s clear that investing in this market has heated up considerably.”

— Brad Jenkins, CEO of CloudNine

So, what do you think?  Did you attend Legaltech last week?  What did you think of this year’s show?  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.

Illinois Court Says Biometric Fingerprint is Violation of Privacy, Even Without Injury: Data Privacy Trends

With Legaltech® behind us, it’s time to get back to covering interesting news items.  On January 25, the Illinois Supreme Court rejected an argument from a popular theme park that would have limited a state law that requires consent for the use of facial recognition and other biometrics.

According to The Verge (Crucial biometric privacy law survives Illinois court fight, written by Russell Brandom), Illinois’ Biometric Information Privacy Act (or BIPA), passed in 2008, requires affirmative consent for companies to collect biometric markers from their customers, including fingerprints and facial recognition models. The law has become a sticking point for a number of tech companies using facial recognition as a photo-sorting tool, and both Facebook and Google have faced lawsuits for alleged BIPA violations in their photo-tagging products. Facebook has pushed for legislative revisions to the law on several occasions, but so far unsuccessfully.

The January ruling involved Six Flags, which allegedly fingerprinted a 14-year-old visitor without parental approval. Contesting the case, Six Flags argued it couldn’t be held liable unless the plaintiff demonstrated a tangible injury from the unauthorized collection, often a difficult task in privacy lawsuits. If successful, Six Flags’ would have significantly limited BIPA’s power and made facial recognition much easier for companies like Facebook and Google.

But the Illinois Supreme Court was ultimately unconvinced by the argument, ruling that “a person need not have sustained actual damage beyond violation of his or her rights under the Act.” In Illinois, businesses that collect biometric data will have to do so carefully, which the court took to be a reasonable intent of the law itself. “Whatever expenses a business might incur to meet the law’s requirements,” the ruling reads, “are likely to be insignificant compared to the substantial and irreversible harm that could result if biometric identifiers and information are not properly safeguarded.”

The ruling has been met with cheers from privacy groups, like the Electronic Frontier Foundation, but some business groups, like the Illinois Chamber of Commerce, expressed concern over the ruling, saying “We fear that today’s decision will open the floodgates for future litigation at the expense of Illinois’ commercial health”.  With the General Data Protection (GDPR) going into effect last year, the California Consumer Privacy Act (CCPA) passed and set to go into effect next year, and case law rulings like the SCOTUS ruling in Carpenter v. US, I’ve been saying that 2018 was the year of data privacy.  It doesn’t seem to be slowing down any in 2019.

So, what do you think?  Do you think we’re going too far on enforcing data privacy or do you think that rulings like this are appropriate?  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.

My Latest Podcast with Digital Detectives: eDiscovery Trends

I always try to find an easy topic to talk about on the Friday after Legaltech ends because I’m usually exhausted after running around all week (this week even more so, though the results were worth it as CloudNine had a fantastic Legaltech this year!), even with the near record cold that hit New York on the last day.  So, when the topic falls in your lap because of something you did a few days earlier, it’s like receiving a gift and that’s how I feel about finding out that my podcast with Digital Detectives is up and available!

As I mentioned last week (or did I?), I sat down with the hosts of the Digital Detectives podcast – Sharon Nelson and her husband John Simek of Sensei Enterprises and Sharon’s terrific blog Ride the Lightning (from which we’ve referenced numerous stories over the years).  The podcast is titled eDiscovery: Major Developments in 2018 and a Look Ahead and it’s available on their Digital Detectives page within the Legal Talk Network site.

Sharon and John covered a lot of topics with me, ranging from notable eDiscovery trends in 2018 to my thoughts about the most important eDiscovery case opinion from last year (spoiler alert: I picked one each for civil and criminal litigation) to talk about a couple of fun sanctions cases to trends regarding Technology Assisted Review.  We also discussed some of the biggest challenges facing lawyers today, the state of lawyer technology competence today, trends with Internet of Things (IoT) devices in eDiscovery and my predictions as to where eDiscovery is heading.

If you’ve got a little less than 28 minutes available, feel free to click on the link above and give it a listen!  Thanks to both Sharon and John for the invite – believe it or not, that was the 99th podcast they’ve done all time!  Their podcast series is excellent and they always have interesting guests (which is a lot to live up to!).  Hope you’ll find my podcast interview on par with the other excellent interviews they have done over the years – they did ask me back, so I must be doing something right.  ;o)

I mentioned that this year’s Legaltech was fantastic for CloudNine this year and it was in several ways.  We had some excellent meetings with a number of our clients and we were able to show them a lot of new enhancements and functionality within our LAW, Concordance, Explore and Review products (here’s a link to the press release if you want to see the highlights of what we had to show in New York this week).  We also had our third Drinks with Doug (as in me!) and Mary (as in Mary Mack!) happy hour this year that CloudNine sponsored again with ACEDS and Compliance Discovery Solutions.  The room was absolutely packed this year – to the point that many of us agreed that we’re going to need a bigger boat, er, venue for next year.

And, finally, it was a successful event because of our first ever NineForum eDiscovery educational series of 20 minutes TED-style talks at the booth!  Kudos to our Director of Marketing, Salana Yarger, for the idea!  I want to thank Kelly Twigger (who agreed to be the “guinea pig” by going first), Janice Jaco, Amy Sellars (who was so fired up she didn’t even need a microphone!), the always wonderful Craig Ball, Mike Quartararo (who is so smart, his middle and last initials spell “IQ”), Trent Livingston from ESI Analyst, Brandon Law from Oasis Discovery (who has a great last name for this business), the aforementioned Mary Mack and my “partner-in-crime” on our monthly webcasts, Tom O’Connor.  Tom and I are thinking of taking our comedy act to Vegas next – we’re that funny!  :o)

That’s enough for now (did I say I was REALLY tired?) – back to normal next week.

So, what do you think?  Did you attend Legaltech this week?  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.

Thursday LTNY 2019 Sessions: eDiscovery Trends

As noted Monday and yesterday, Legaltech® New York (LTNY) is happening this week and, for the ninth(!) year in a row, eDiscovery Daily is here to report about the latest eDiscovery trends being discussed at the show.  Today is the last day to check out the show if you’re in the New York area with a number of sessions available and over 160 exhibitors providing information on their products and services, including our company, CloudNine at booth #310-312.

In addition to that, CloudNine conducted a great new NineForum Discovery Education Series where prominent and highly respected eDiscovery and litigation support experts delivered 9 TED-style talks, 20 minutes each, covering important topics impacting the legal community.  And, we also hosted the 3rd annual Drinks with Doug (as in me!) and Mary (as in Mary Mack!), sponsored by ACEDS, CloudNine and Compliance Discovery Solutions.  Hope you were able to catch us there!

There are plenty of interesting sessions today.  Sessions in the main conference tracks include:

9:30am – 10:30am:

The Future Is Now: Managing Messaging Data

Organizations are now leveraging technology and processes to identify records as part of large projects and as part of “business as usual” processes. With the advent of technology platforms that allow for indexing of documents/data, including Microsoft O365, developing processes around the technology will be transformative for the management of information. Hear lessons learned and case studies on: (i) the record classification of 1.5 billion email messages for a healthcare company; and (ii) the defensible disposal of more than 10 billion email messages for a highly regulated financial institution.

Upon completing this session, you will be able to:

  • Highlight the need for a multi-disciplinary approach for transformative information governance projects
  • Focus on key risks and challenges of managing messaging data, particularly when disposing of billions of emails in highly regulated environment
  • Demonstrate how to leverage new technology to achieve the goal of only retaining messaging data based on legal, regulatory, and business needs
  • Develop a framework for continual “business as usual” disposal of messaging data

Speakers: Anthony Diana, Co-Head Global IP, Tech & Data Group, Reed Smith, Therese Craparo, Partner, Redd Smith.

The State of Data Breach Litigation: What You Need to Know and How to Protect Yourself

The number of records compromised in data breaches since the start of 2017 has increased at an astounding rate. This huge uptick has led to numerous data breach litigations in the civil and regulatory contexts. In this session, highly experienced lawyers and technologists will discuss the major cases and trends from 2018 and will address practical measures organizations can take to try to reduce their risks of breaches and resultant legal liability.

Moderator: Robert Brownstone, Chair, Electronic Information Management (EIM) Group, Technology & eDiscovery Counsel, Litigation, Fenwick & West LLP; Speakers: Douglas H. Meal, Partner, Ropes & Gray LLP, Christopher Sitter, Information Security Director, Forensic Technology, Juniper Networks, Matthew Todd, Ph.D., CISM, CIPP/E, CIPP/US, GCED, Isis Miranda, Associate, London Fischer, Roberta Anderson Sutton, Esq. – RAS Enterprise Risk Management.

1:30pm – 2:30pm:

Information Governance in the Cloud: Compare and Contrast

Build your cloud knowledge. With CIO surveys showing over 90% of businesses use the public cloud, now is the time to improve your cloud readiness! Engage in lively discussion with the experts who worked directly with Amazon, Box, Google, IBM, Microsoft and other major cloud providers on the IG elements of their cloud solutions. Explore the Cloud’s information governance (IG) features for retention, legal holds, disposition information protection and more! Expanding your knowledge will assure your place at the table as a valued resource, as your organization leverages the cloud.

Upon completing this session, you will be able to:

  • Examine key information governance capabilities of cloud solutions
  • Compare and contrast cloud support for creation-date versus event-based retention
  • Discuss legal hold capabilities
  • Consider automated disposition features

Speakers: Michael Haley, Principal Consultant – Cohasset Associates, Carol Stainbrook, Executive Director – Cohasset Associates.

GDPR 8 Months Later: Trends in Litigation and Regulation

Europe’s data protection law went into effect on May 25, 2018 and technology giants such as Facebook and Google immediately started facing regulatory proceedings and multi-billion dollar lawsuits alleging lack of compliance with the General Data Protection Regulation (GDPR). Our panelists will analyze the most recent enforcement proceedings and lawsuits and also discuss the GDPR and Privacy Shield compliance and litigation trends they foresee for 2019.

Moderator: Robert Brownstone, Chair, Electronic Information Management (EIM) Group, Technology & eDiscovery Counsel, Litigation, Fenwick & West LLP; Speakers: Kenneth N. Rashbaum, Partner – Barton LLP, Amie Taal – Stratagem Tech Solutions Limited, Rich Vestuto, Managing Director – Deloitte Risk & Financial Advisory.

3:00pm – 4:00pm:

2018 CA Consumer Privacy Act: The Big Tail Wagging the U.S.

The CCPA will essentially “wag the dog” and your organization will need to be ready in time. Taking effect on January 1, 2020, this critical new data privacy law will impact organizations far beyond California (now the world’s 5th largest economy). Having been called the U.S. version of the E.U.’s GDPR, organizations are still scrambling to understand what data and rights are covered, how this is different than GDPR’s requirements, and how the CCPA impacts Privacy, IG, RIM, and Security across virtually all organizations who collect, sell, and/or retain personal information. In this session, two leading information governance attorneys will share why you need to and how you can be ready.

Join us for these key discussions and take-aways:

  • Identify the implications of the 2018 CA Privacy Law and related new legislation for your organization​
  • Define/refine strategies for compliance
  • Initiate changes to Privacy, IG, RIM and Information Security programs to ensure compliance with the law

Speakers: John Isaza, Partner, Rimon, P.C., Jeff Beard, Member, IAPP.

Unique Personal Privacy Issues after this Decade’s Supreme Court Mobile-Devices and Geolocation Privacy Rulings

Great, your digital location is protected by the Constitution. So what are the implications of the Supreme Court rulings in Quon (2010), Jones (2012), Riley (2014) and Carpenter (2018) regarding the future of workplace employee monitoring, for civil and criminal investigations and as to litigations? In this session, we will take a deep dive into the impacts the Supreme Court’s rulings could have on future contexts and cases.

Moderator: Robert Brownstone, Chair, Electronic Information Management (EIM) Group, Technology & eDiscovery Counsel, Litigation, Fenwick & West LLP; Speakers: Hanley Chew, Of Counsel, Fenwick & West LLP, Kimberly Quan, Lead, eDiscovery & Information Governance – Juniper Networks, James Sherer, Partner – Baker Hostetler.

In addition to these, there are other sessions today that may interest you.  For a complete description for all sessions today (and for the entire show, since they’re all on one page), click here.

So, what do you think?  Did you attend LTNY this year?  If so, what did you think about the show?  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.