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Electronic Discovery

Defendant Sanctioned for “Deliberately” Altering a Skype Communication: eDiscovery Case Law

In GoPro, Inc. v. 360Heros, Inc., No. 16-cv-01944-SI (N.D. Cal. March 30, 2018), California District Judge Susan Illston denied the plaintiff’s motion for summary judgment and denied the defendant’s motion in limine to exclude the testimony of the plaintiff’s forensic analysis expert, but granted (in part) the plaintiff’s motion for partial terminating sanctions against the defendant for forging evidence in two Skype conversations, opting for an adverse inference instruction sanction and reimbursement of expenses related to forensic analysis and testimony instead of the terminating sanctions sought.

But first, this week’s eDiscovery Tech Tip of the Week is about Saving Searches.  Documentation is a key component of a sound discovery process. The ability to automatically save the searches that you have performed not only saves time in retrieving those documents later, but it also helps document the process for performing searches should you have to defend your approach in court.  Saving searches is just one component of an overall program for documenting your approach in eDiscovery.

To see an example of how Saving Searches is conducted using our CloudNine platform, click here (requires BrightTalk account, which is free).

Case Background

In this case regarding federal and state trademark infringement and unfair competition, the defendant (in November 2016) produced to the plaintiff two emails (in a single PDF format) containing the transcript of two 2014 Skype conversations between representatives of the plaintiff and defendant where . In the Skype conversations as produced by the defendant, the plaintiff referenced the term “abyss” twice (the parties had a dispute over plaintiff’s ABYSS mark).

At his deposition, the defendant representative testified under oath that the PDF document was a true and correct copy of the Skype conversation, stating that he had copied and pasted the Skype conversation into an email, and then sent it to himself. He claimed the only alteration he made to the document was to highlight the two lines of conversation containing the word “abyss”. In response to the plaintiff’s request for the Skype files in their native form, the defendant representative claimed the original Skype conversation was no longer available to him.

As part of its investigation into the defendant’s claims, the plaintiff accessed equipment containing its end of the Skype conversation and its Skype records did not contain the two highlighted lines referencing “abyss.” To confirm their findings, GoPro retained a forensic expert (Derek Duarte of Blackstone Discovery) to conduct a forensic analysis, which determined that it’s representative’s imaged Skype database did not contain the two highlighted lines referencing “abyss”, leading to the motion for partial terminating sanctions.  In response, the defendant claimed that the expert’s results were unverifiable and unreliable because he could not verify that the data on the hard drive contained the same data as it did in 2014.

Judge’s Ruling

In ruling on the motion, Judge Illston ruled, as follows:

“The Court is not persuaded by defendant’s explanation of the suspect document, and concludes on the present record that defendant deliberately altered it in an effort to strengthen its legal position with respect the ABYSS mark. GoPro argues it has been prejudiced because as part of its investigation into 360Heros’ prior use defense, GoPro incurred various expenditures, including having to locate and hire an expert to forensically investigate the Skype chat. Sanctions less drastic than terminating sanctions are available to remedy any potential prejudice to GoPro. Accordingly, the Court finds that sanctions are warranted, and that the appropriate sanctions in this case are twofold: (1) an adverse inference instruction at trial, related to Mr. Kintner’s conduct; and (2) reimbursement to GoPro of the costs incurred in retaining Mr. Duarte, including expenses paid to Mr. Duarte and the cost of attorney time required to locate and retain Mr. Duarte. Plaintiff shall submit its statement of costs so incurred in a sworn document to be filed no later than April 13, 2018.”

Judge Illston also denied the plaintiff’s motion for summary judgment, finding that “defendant raises material issues of fact as to numerous of the factors”.  She also denied the defendant’s motion in limine to exclude the testimony of the plaintiff’s forensic analysis expert, but Judge Illston found the expert to be “qualified to testify on these matters” and that his proposed testimony was “directly relevant to the authenticity of the disputed Skype conversation.”

So, what do you think?  Did the judge go far enough with her sanctions?  Please share 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.

Law Enforcement Has Found a New Way to Put a Finger on iPhone Evidence: eDiscovery Trends

A dead finger, that is.  Believe it or not, cops are now opening iPhones with dead people’s fingerprints.

A couple of days ago Sharon Nelson (on her excellent Ride the Lightning blog) covered a Forbes article that discussed a suspect who mowed down a group of people in his car, went on a stabbing spree with a butcher’s knife and was shot dead by a police officer on the grounds of Ohio State University.  To try to access the phone to learn more about the assailant’s motives, an FBI agent applied the bloodied body’s index finger to the iPhone found on the deceased suspect.

In that case, it didn’t work as the iPhone had gone to sleep and when reopened required a passcode.  But, this technique is working in many other cases.  Separate sources close to local and federal police investigations in New York and Ohio, who asked to remain anonymous as they weren’t authorized to speak on record, said it was now relatively common for fingerprints of the deceased to be depressed on the scanner of Apple iPhones, devices which have been wrapped up in increasingly powerful encryption over recent years. For instance, the technique has been used in overdose cases, said one source. In such instances, the victim’s phone could contain information leading directly to the dealer.

Not surprisingly, there are concerns about whether a warrant should be required. Greg Nojeim, senior counsel and director of the Freedom, Security and Technology Project at the Center for Democracy & Technology, said it’s possible in many cases there would be a valid concern about law enforcement using fingerprints on smartphones without any probable cause. “That’s why the idea of requiring a warrant isn’t out of bounds,” Nojeim added.

Think having an iPhone X that replaces the fingerprint security with facial recognition technology will keep law enforcement at bay?  Think again.  It could be an easier way into iPhones than Touch ID. Marc Rogers, researcher and head of information security at Cloudflare, told Forbes he’d been looking at Face ID in recent months and had discovered it didn’t appear to require the face of a living person to work – apparently the technology can be deceived simply using photos of open eyes or even only one open eye on the suspect.  “In that sense it’s easier to unlock than Touch ID – all you need to do is show your target his or her phone and the moment they glance it unlocks,” he stated.

Or open the eyes of the dead suspect.  Dead men tell no tales?  Maybe they do after all.

So, what do you think?  Should a warrant be required to access phones with fingerprint or facial recognition technology?  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.

Maura R. Grossman of the University of Waterloo: eDiscovery Trends 2018

This is the eighth of the 2018 Legaltech New York (LTNY) Thought Leader Interview series.  eDiscovery Daily interviewed several thought leaders at LTNY this year (and some afterward) to get their observations regarding trends at the show and generally within the eDiscovery industry.

Today’s thought leader is Maura R. Grossman.  Maura is a Research Professor in the David R. Cheriton School of Computer Science at the University of Waterloo and principal of Maura Grossman Law.  Previously, she was Of Counsel at Wachtell, Lipton, Rosen & Katz, where she pioneered the use of technology-assisted review (TAR) for electronic discovery.  Maura’s research with Gordon V. Cormack has been cited in cases of first impression in the United States, Ireland, and (by reference) in the United Kingdom and Australia, approving the use of TAR in civil litigation.  Maura has served as a special master in the Southern District of New York and the Northern District of Illinois to assist with issues involving search methodology.  In 2015 and 2016, Maura served as a coordinator of the Total Recall Track at the National Institute of Standards and Technology’s Text Retrieval Conference (TREC); in 2010 and 2011, she served as a coordinator of the TREC Legal Track.  Maura is also an Adjunct Professor at Osgoode Hall Law School at York University and at the Georgetown University Law Center.  Previously, she taught at Columbia Law School, Rutgers Law School—Newark, and Pace Law School.

I thought I’d start by asking about a couple of cases related to Technology-Assisted Review.  The first one that we talked about that I’d be interested in your thoughts about is FCA US v. Cummins where the judge (Avern Cohn) stated a position that applying TAR without prior keyword culling is the preferred method (although he said he did it rather reluctantly).  What are your thoughts about that decision?  What are your thoughts in general about courts making rulings on preferred TAR approaches?

I don’t believe there is a black or white answer to this question.  I think you have to consider how things might be done in a perfect world, and how they might be done in the real world we live in, which includes time, cost, and burden for ingesting and hosting large volumes of data.  In a perfect world, you wouldn’t perform multiple, sequential culling processes because each one removes potentially relevant information, and that effect is multiplied.  So, if you do keyword culling first—let’s say you do a good job and you get 75% of the relevant data, which would be pretty high for keywords—then, you apply TAR on top of that and, again, you get 75% of the relevant data.  For each of the steps you apply, those steps would sequentially reduce the number of relevant documents you found, resulting in a combined result of about 56% of the relevant data.

In a perfect world, you wouldn’t do that, and you would just put all the data into the TAR system and get 75% recall.  By “all” of the data, I don’t mean the entire enterprise, I mean all of the appropriate data—the appropriate time frame, the appropriate custodians, and so forth.  That’s in a perfect world, if you wanted to maximize your recall, and there were no time and cost considerations.  But, we don’t actually live in that world most of the time.  We live in a world where there generally are time and cost constraints, and per-gigabyte loading and hosting fees. So, often, parties feel the need to reduce the amount of data they are loading into a review platform to reduce processing and hosting fees, and other potential fees as well.  Therefore, parties often want to use keywords first in the real world.  Ultimately, you have to look at the specifics of the matter, including the volume of data, the value and importance of the case, and what’s at stake in the matter.

You also have to look at how effective keywords will be in retrieving information in the particular case at hand.  Keywords may work very well in a case where everything is referred to by its “widget number,” but keywords may not work as well in certain types of fraud cases where parties don’t always know the specific language used, or what the nature of the conspiracy was.  Keywords can be more challenging in those situations.  So, you really have to look at the whole picture.

In FCA v. Cummins, I think what the judge was trying to say was that generally, in a world without any of these other considerations, the best practice would be not to cull first.  I would tend to agree with that from a scientific and technical perspective.  But, that’s not always practical.

Also, I believe it was in Rio Tinto v. Vale where Judge Peck said (in dicta) that in a perfect world, if there were no cost or time or any other considerations, you would take all the data and you would just use the best TAR system you could, and you would be more likely to find the highest number of relevant documents.  But that can drive up costs, and that may not be not proportionate in all cases.  So, it’s really a question of proportionality, and what will work best in each situation, and how much time and resources you have to iterate and test the keywords, and other related factors.

Also, as you know in FCA v. Cummins, the judge didn’t really go into much detail; it was a very short decision.  Maybe it was a relatively small data set and loading it all didn’t make much of a difference.  We just don’t know enough about the facts there.

I got the impression that this case might have involved two equally weighted parties, with equal amounts of data, so the judge may have felt that the parties needed to perform TAR the same way, so he felt he was forced to make a decision.  Do you think that would have an impact as to why a court might decide or not?

I think that where the data volumes (and therefore burdens) are symmetric, there tends to be an understanding that what’s good for the goose is good for the gander.  Parties in those circumstances tend to be more circumspect about what they demand because they know they’ll be subject to the same thing in return.  If I’m representing one party and you’re representing the other, and I ask for everything in native form, I’m probably not going to be able to turn around and argue that I don’t want to produce in native, too, unless I have an awfully good reason for that.

So, I do think that changes the landscape a little bit.  Parties tend not to ask the other side for things that are unduly burdensome if they’re going to be forced to provide those same things themselves.  It can be very different when one side is using TAR and the other side isn’t, and when motivations or incentives are not aligned.  That can affect what parties request.

Another case we talked about was Winfield v. City of New York, and one of the key aspects of the objections by the plaintiffs about the defendants’ TAR process was the process of how they had been designating documents as non-responsive.  What are your thoughts about that?  Do you think arguments that the subjectivity of the subject matter experts will come into play in more and lead to objections in other cases?

Most of the research that I’ve reviewed and most research that I’ve done with Gordon Cormack has suggested that a few documents coded one way or the other are highly unlikely to make a substantial difference in the outcome—at least for CAL algorithms, and even for most robust SAL algorithms.  I know that people like to say, “garbage in, garbage out,” but I’ve never seen any evidence for the proposition that TAR compounds errors made by reviewers, and there is some evidence that TAR can mitigate reviewers’ errors.  The results of most TAR systems appear to be satisfactory unless there are pretty significant numbers of miscoded documents, for example, in the 20 to 25 percent (or higher) range.  Of course, if you’ve coded all of the documents of a particular kind as “not relevant,” you’ve now taught the algorithm not to find anything like that.  Chances are, though, if you have multiple reviewers, whether contract attorneys or even junior associates, not everything will be marked the same way.  There’s going to be a fair amount of noise in the coding decisions, and that doesn’t seem to have a major impact on the results.

With some of the early TAR systems, a lot of commentators said that it had to be a senior partner, or an expert, who trained the system.  But, most of the research that we’ve done, that Jeremy Pickens at Catalyst has done, and that others have done, suggests that a little noise from junior reviewers or contract attorneys, who may be a bit more generous in their definition of relevance, actually yields a better algorithm than a senior partner, who may have a very, narrow view of what’s relevant.  The junior people, who are more generous in their conceptions of relevance, tend to train a better algorithm—meaning a system that will achieve higher recall—in the long run.  So, a little bit of noise actually doesn’t hurt.

I wasn’t particularly surprised that in Winfield there were a few documents that were “arguably relevant,” and about which the two sides disagreed on coding.  That’s going to happen in any matter, and that’s not really going to affect the outcome one way or the other, because those documents are marginal in the first place.  Certainly, if someone is systematically marking all the “hot” documents as non-responsive, that will make a difference, but that wasn’t what was going on there.

In Winfield, the Court said, the documents were marginal, and arguably were relevant.  The Court also said it had reviewed the training process in camera and there was nothing wrong with it.  Most of the case law says that a party shouldn’t get discovery-on-discovery unless there’s a material flaw in the adversary’s process.  If you look at the position taken in the Defense of Process paper that The Sedona Conference published, then that should probably have been the end of the discussion.  But, the judge in Winfield went one step further, and said, “Well, because there’s some evidence that there may have been some disagreements in coding, I’ll permit a sample.”  That’s a little scary to me, because if there was no material deficiency, and we’re talking about a few marginal documents with coding where people disagree, that’s going to occur in every single case.

When you open up the collection to sampling, what happens is that the parties will find more marginal documents where they disagree on the coding.  That often leads to a lot of sparring, as we’ve seen in other cases where the parties disagree about marginal documents and fight about them, and that just drives up cost.  In the long run, those are not the documents that make or break the case.

We’re at a point where more and more people are using TAR, but a lot of people still haven’t really embraced TAR yet.  For those people who have not really gotten started with it, what would be your advice on how they could best get started on learning and applying TAR in their cases?

I would suggest they play with it, and try it out on a set of data that they have already completely manually reviewed and thoroughly QC’d, and where they are confident that everything was well done.  Use that to test some of the different tools out there before you have a live matter you want to use it on, so that you don’t have to decide what tools work and don’t work while you are in a crisis mode, when time is of the essence.

It would be helpful to do that homework, and develop a good understanding of the different work flows, and the different tools, and what kinds of data they work better or worse on.  For example, some are better with spreadsheets than others, some are better with OCR text, and others are better with foreign language or short documents.  Ideally, counsel would do that homework beforehand, and know something about the different tools that are available and their pros and cons.

If they haven’t done that, or feel they can’t, then I would encourage people to use it in ways that don’t impact defensibility considerations as much.  For example, they can use it on an internal investigation, or on incoming data, or simply to prioritize their data for review—even if they plan to review it all—so that they can start reviewing the most-likely responsive documents first and work down from there.

There are also many uses for QC, where the algorithm suggests that there may be errors.  Look at the documents that the TAR system gave a high score for relevance that the reviewers coded as “not relevant,” or vice versa.  There are many uses that don’t implicate defensibility where people can still try TAR, see how it works, and get comfortable with it.  Usually after people see how it works and see that it’s effective—if they’re using a tool that actually is effective—it’s not a hard sell after that.  It’s that first step that’s the hardest, and that’s why I encourage people to do the testing before they’re in a critical situation, before they have to go in front of the court and argue whether they can use it, or not use it.

What would you like our readers to know about things you’re doing, and what you’re working on?

I continue to do research on TAR tools and processes, and on the evaluation of TAR methods.  Gordon Cormack and I are “heads down” doing a lot of work on those things.  One area that we’ve been addressing recently is the notion that some people have been saying that a CAL process can only be used if you’re actually going to put eyes on every document.  Because of that, some people prefer the SAL approach because it can give them a fixed review set.  There is a method we’ve written about, and for which we’ve filed a patent, called S-CAL.  We’ve been doing a lot more work in that area to help parties get the benefits of CAL, but still be able to have the predictability they want of knowing exactly how many documents they’re going to have to review, so they can know how many reviewers they need, how long the review will take, and what it will cost.  Our aim is to be able to do that using a form of CAL, but also to be able to provide an accurate estimate of recall and precision.

That’s one area of research we’re working on.  I’m also becoming increasingly interested in artificial intelligence and the legal, ethical, and policy issues it implicates.  Last semester, I taught the first course (that I’m aware of) that brought together 18 computer science graduate students, and 15 law students, to explore different areas of artificial intelligence and the legal, ethical, and policy issues associated with them.  For example, we looked at autonomous cars, we looked at autonomous weapons, we looked at relationships with robots, and we looked at what to do about job loss.  We looked at data privacy, and the concentration of vast amounts of personal data in the hands of a small number of private companies.  We looked at predictive policing and use of algorithms to predict recidivism in the criminal justice system, and it was a really, really interesting experience, bringing both of those groups together to do that.  I’ve been focused a little more in that area, as well as continuing my information retrieval research and other research in collaboration with Gordon and my other colleagues and students at the University of Waterloo.  And, of course, Gordon and I work on TAR matters.  I still do consulting, expert work, and serve as a special master, and I really love that part of my job.

Thanks, Maura, for participating in the interview!

As always, please share any comments you might have or if you’d like to know more about a particular topic!

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

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

Jason R. Baron of Drinker Biddle & Reath LLP: eDiscovery Trends 2018

This is the seventh of the 2018 Legaltech New York (LTNY) Thought Leader Interview series.  eDiscovery Daily interviewed several thought leaders at LTNY this year (and some afterward) to get their observations regarding trends at the show and generally within the eDiscovery industry.

Today’s thought leader is Jason R. Baron.  Jason is a member of Drinker Biddle & Reath LLP’s Information Governance and eDiscovery practice and co-chair of the Information Governance Initiative.  An internationally recognized speaker and author on the preservation of electronic documents, Jason previously served as the first Director of Litigation for the U.S. National Archives and Records Administration, and as trial lawyer and senior counsel at the Department of Justice.  He also was a founding co-coordinator of the National Institute of Standards and Technology TREC Legal Track, a multi-year international information retrieval project devoted to evaluating search issues in a legal context.  He served as lead editor of the recently published ABA book, Perspectives on Predictive Coding and Other Advanced Search Methods for the Legal Practitioner.

What were your general observations about LTNY this year?

{Interviewed the last day of the show}

We have come to a moment where artificial intelligence (AI) is being recognized as important for the legal industry. You see it everywhere. Five years ago, we saw the emergence of one form of AI in the guise of technology-assisted review in e-discovery.  Now the moment has arrived for the merger of AI and law more generally — not just for the purpose of more efficiently finding relevant documents in the haystack, but using artificial intelligence techniques across a spectrum of legal contexts. That’s a good thing.

I just finished reading two books that I highly recommend to your readers.  One is by Max Tegmark, called Life 3.0. Another is by the former chess grandmaster of the world, Garry Kasparov, called Deep Thinking.  Both books talk about the rise of AI in our lives. Tegmark has this wonderful illustration of the rising waters of AI, where it now engulfs chess and Go, and is lapping up against more creative intellectual activities including story writing and software development. Whether we’re talking about robots, intelligent agents, or software with predictive powers, we are seeing AI replace tasks carried out both in factories as well as by the professional class.  I would think that over the course of the next five to ten years, we’re going to see at Legalweek a greater and greater focus on AI applications in the law and what that means, including issues surrounding law and ethics.

The “trolley car problem” – involving whether one should throw a switch to make sure that a hypothetical train doesn’t hit a group of children instead of a large gentleman — is now a real problem faced by the makers of driverless car software.  With driverless cars and taxis, you’re going to see injuries in some cases.  So, there’s the question of liability, i.e., whether the software developer or manufacturer are held to a standard of strict liability, and what kind of ethical considerations are involved.  We’re seeing a world of future hypotheticals coming into being across a whole range of applications.  I think that’s exciting.

In your session at Legaltech regarding Internet and Things, your panel discussed privacy and ethics. When it comes to mobile devices, Internet of Things devices, and so forth, it certainly seems to me that a lot of attorneys would prefer not to worry about data on those devices or go collect from them. What do you think is going to be necessary to change that mentality?

I don’t know whether the mentality really has to change, especially in light of the 2015 Amendments that highlight the need for proportionality and discovery. I have always been a fan of iterative processes and tiered eDiscovery, so that you get early on the good stuff (i.e., the “low hanging fruit”). So now, we’re talking about a whole set of devices that are streaming data and a lot of applications that are out there – and what we discussed in that session and what I believe is that courts should be taking a hard look at the need for, in the first instance, going after all of these various types of communications and streams of data.  In other words, a judge should be saying:  “Why don’t we start with traditional email or text messages, and go on from there in terms of discovery of other apps and other data streams.”

I think the jury is out as to whether data from the Internet of Things is itself going to be at the center of a huge amount of litigation in the near-term. There’s clearly some case law already on personal wearable devices and there will be litigation about software used in driverless cars.  And there are a bunch of cases in the civil and criminal areas where smart devices or intelligent agents (like Echo) seem to be omnipresent as evidence-gatherers – acting as an artificial “fly on the wall” when bad things happen in apartments or homes.  So we are seeing at the margins some case law –but I’m not sure that there’s going to be a rapid rise in terms of eDiscovery case law with respect to all of these different appliances. I think the point though not to lose sight of is that we still have a large task in handling more traditional forms of documents and ESI, and that these may still be the “low hanging fruit” in many, many cases without worrying about exotic forms of IOT that may or may not be relevant. Nonetheless, we’re increasingly in a world of smart devices, so to the extent of smart devices provide evidence of something that’s going wrong in the world, and there’s a legal case to be had, that kind of data will have to be dealt with.

The bottom line is that competency for lawyers is changing.  It’s not just whether you know the difference between various forms of technology assisted review and whether you’re up on the latest continuous active learning, TAR 3.0, 4.0, or whatever.  It’s not just that. It’s not tied to the big case. It’s that you need to be aware that there are sources of data everywhere, in every case. Whether it’s a family law case or a personal injury case or whatever, there may be sources of data beyond what lawyers of a certain age know about in having previously sought.  So, the duty of competence is really just basically the duty of keeping up with the world around us in 2018 and beyond.

Another big topic at the show has been GDPR.  What are your observations on GDPR and how it’s going to impact, not just how information is handled in the EU, but how American companies are going to work with companies that have information in the EU?

The practice that I joined a few years ago at Drinker Biddle is an Information Governance and eDiscovery group. There’s a separate set of lawyers here who have been, for many years, experts in EU privacy law. It has been quite obvious to me in the last year in the run-up to GDPR that these practice groups really need to merge, and that the kind of questions that we are getting from companies with a global footprint about information governance are entwined increasingly with “what do we do about GDPR?”  We will know more after May 25, 2018, of course, when compliance rulings and interpretations are handed down, and fines are levied, in terms of what constitutes best practices under the GDPR.  But in the meantime, I’d say that GDPR-readiness is acting as a driver for US companies paying more attention to best practices in information governance. So I think it’s a good thing all of us have gotten a little bit up to speed on GDPR requirements.

I’ll tell you one aspect which may or may not be the sexiest topic in the world, but it’s the world I inhabit: on the issue of record retention, GDPR actually represents a sea-change in the way one goes about thinking about a corporate firm’s retention obligations. I’ve written about this in Ethical Boardroom and other places. The typical engagement for us as a law firm is being asked to provide advice on harmonizing a global set of record requirements into a schedule with simplified bigger buckets, coupled with automating processes around electronic content management.

It’s always been the perspective in US records schedules that the retention periods set out in the schedules operate as minimums for purposes of Sarbanes-Oxley, HIPAA, TARP, whatever. You name the vertical and it’s a minimum. For compliance purposes, you have to save data for a certain amount of years. If you save it longer, there’s no big penalty in most instances. Well, the GDPR is flipping that long-held assumption.

The specter of having an EU audit where your firm holds petabytes of data that involve potential personal information that has been in lying around for a decade or more after a retention period has ended is, shall we say, problematic. It’s not going to affect every company right away in May 2018. But, I would predict that if we’re talking in a year or two or three, some entity is going to be fined out there. Whatever the records schedule says now is a potential landmine for a company, unless it pays stricter attention to ensuring compliance with the retention periods within the schedule.   The environment that I see is one which is probably good for lawyers, because at least at firms like mine, companies are coming to us saying they really haven’t grappled with the disposition of legacy data. They may have some policies in place, but it’s not really automated in a way that results in real deletion. The bottom line: what is needed are defensible deletion policies that are complied with in accordance with records schedules, so as to meet important aspects of the GDPR.

The last thing I’d say is that, as is well known, the entire subject of privacy represents a paradigm clash as between the US and the EU, especially with respect to the concept of the “right to be forgotten.” I actually have been on record for a number of years as being quite sympathetic to the EU perspective — for example, at Georgetown’s 2017 Advanced eDiscovery program I gave one of the so-called “eD talks (sort of like a TED talk),  I said that I didn’t wish to be a shill for a future corporate Orwellian state. In that talk, I traced the issues that have animated me for the past 15 years or so about being smart in the eDiscovery space about search.  But I also noted that AI has evolved to the point where we now are using analytics in ways that may be increasingly creepy in terms of surveillance of employees, or the ability to de-anonymize data on consumers.

All of that said, at Georgetown and in other talks I have lobbied for a notion of corporate responsibility in the AI and law space – arguing that there should be something akin to IRBs – human subject review panels – used, where corporations consider the algorithmic impact on people and a need for greater transparency on what decisions are being made by software.  Beyond algorithmic bias and surveillance, I would bet there are a hundred other types of issues in the space that what I will call an “algorithmic review board” might be called upon to handle.  But in my view there’s some level of corporate responsibility to be met in an increasingly AI era.   So, I think the EU privacy model is one that we should pay attention to in terms of the impact of algorithms on our lives, and what it means to have some sort of zone of privacy that you have meaningfully consented to as an employee or consumer.

You mentioned blockchain and that another topic your panel discussed in your session yesterday.  How do you see that unfolding and the impact of watching on the legal industry?

As I said at the session the other day, on the Gartner hype cycle the buzz around blockchains is definitely going up.    Of course, regulation of cryptocurrencies is a very hot topic.  However, blockchain and distributed ledger technologies are not just Bitcoin or ICO’s.  Rather, blockchains represent a new way of establishing trust on the internet.  One can imagine endless variations and possibilities of using blockchain applications for good purposes that have nothing to do with cryptocurrencies. You can use the distributor ledger technology for record keeping, for supply chains, for any number of applications which are of great interest. There isn’t a day that goes by where I don’t see some article that says ”Blockchains will be a disruptive force in ‘such and such’ industry.” Now, is it hype? Some of it may well be, but I think that, at bottom, the idea that you can hash information in a way to put together in a chain and make it immutable — where you have trust that that chain retains within it some kind of authentic pointers to information, and that you basically trust the objects themselves in a way that doesn’t rely on third parties —  is exciting.

It’s a very interesting development. You see a lot of interest across industries. There’s still a certain mystery to blockchain. Where are mining operations? Who’s doing the mining? How do the algorithms work? What is a blockchain’s future when all the tokens have been mined?   I myself have questions about all of that and don’t profess to understand all the details. But, I have been really interested in the potential for these applications and we’re going to see it talked about more and more. If AI was the primary new thing for Legalweek this year, I think blockchain was also right up there. We’ll see in the future.

I think there’s a wonderful moment here where more lawyers should be involved in at least knowing what the technology is all about and thinking creatively about its applications for the future.

What would you like our readers to know about things you’re working on?

My professional interests are a bit different from most of the people that hang out at Legaltech, mainly due to the fact that I spent 33 years in the government, including at the Justice Department and as Director of Litigation to the National Archives. I still have a passion for how to preserve and how to access public records in digital form. I’ve been very privileged over the last year to give talks in Amsterdam, in Vienna, in Cape Town, in London, and in the US and Canada all on the subject of how we should be thinking about amassing huge collections of public record archives in digital form, and how to access those records. Paradoxically, you put stuff in digital form with the idea that you’re going to be able to search it easily, compared with boxes and manual paper. However, it ends up that it’s very difficult to access huge digital collections, especially if they are filled with personally identifiable information (PII) and other forms of sensitive data.  What animates me in the papers that I’ve done at IEEE and at other conferences and forums is to talk about the need to apply what we know in the eDiscovery space now with respect to AI. Machine learning technologies can be very helpful to extract out sensitive data from large collections, and to have a public use version of the larger collection in some form in order that people can get access to huge collections of email or other electronic records that constitute public archives.

So I intend to devote a fair amount of time going forward on issues concerning the freedom of information aspects of the law. How do we stay informed about what governments are doing? That’s a difficult question in the US and it’s even more difficult around the world. That is of interest to me. I’m very thankful that I work in a law firm that has allowed me the opportunity to pursue that interest, in addition to thinking about matters that actually result in billable hours! {laughs}

Also, the Information Governance Initiative continues apace with its just published third State of IG Report.  (See www.iginitiative.com.)   Barclay Blair has led the way on that. I think we are seeing a greater penetration in the corporate space of the idea of IG, that there’s a greater maturity, a greater acceptance of IG councils and IG champions. All of that’s good. We have, as we have had for the last three years, ia Chief Information Governance Officer (CIGO) Summit in Chicago, which will take place on May 9th and 10th.  As we always have, we gather together for a single summit 60 or 70 individuals who are card-carrying IG people that have some kind of title in the space. We talk about leadership.  And the IGI will continue to be partnering with lots of innovative companies to produce white papers and to have an ongoing conversation about the importance of Information Governance. I’m delighted to be part of that effort.

Thanks, Jason, for participating in the interview!

As always, please share any comments you might have or if you’d like to know more about a particular topic!

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

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

Today is the Day for the University of Florida E-Discovery Conference!: eDiscovery Best Practices

The University of Florida E-Discovery Conference is being held today!  And, for the first time, I’m going to be there!  Regardless of where you are, it’s not too late to attend!

The focus of this year’s conference is effectively managing the everyday case and they will have interesting sessions throughout the day, covering topics ranging from eDiscovery security and data protection to early assessment of the case and the data to keywords, TAR and AI (do I need to spell out those acronyms anymore?).  Want to know about eDiscovery of the JFK files?  It’s here.  Want to get judges’ perspectives on sanctions and other eDiscovery issues?  That’s here too.

The panel of speakers is a regular who’s who in eDiscovery, including Craig Ball, George Socha, Kelly Twigger, David Horrigan, Martin Audet, Mary Mack, Rose Jones, Mike Quartararo and also US Magistrate Judges John Facciola, James Francis, Judges William Matthewman, Mac McCoy, Amanda Arnold Sansone and Gary Jones, and retired Florida Circuit Court Judge Ralph Artigliere.

I’m on a panel discussion at 9am ET in a session titled Getting Critical Information From The Tough Locations – Cloud, IOT, Social Media, And Smartphones! with Craig, Kelly, with Judge Sansone.  We’ll be discussing real solutions for collecting ESI from those difficult locations.  Check it out!

The conference is being conducted in Gainesville, FL on the University of Florida Levin College of Law campus, though I understand it’s a full house.  However, it’s also being livestreamed.  There are CLE-accredited sessions all day from 8am to 5:30pm ET and the conference has been approved for 7.5 Continuing Legal Education (CLE) general credits, 2.0 ethics credits and 3.0 technology credits by the Florida Bar for attorneys attending the conference. The Florida Bar has also approved 7.5 civil trial certification credits.    So, this is a great opportunity to get those needed CLE credits!

Also yesterday, E-Discovery CareerFest was conducted.  And, for the first time, the Law School E-Discovery Core Curriculum Consortium (composed of law professors teaching electronic discovery courses at their respective law schools) will host its first in person workshop focusing on curriculum development on Friday, March 30th from 9am to 12pm ET.

Click here to register for the conference – it’s only $99 for livestream attendance.  And, if you’re a currently enrolled student (in an ABA accredited law school, accredited E-Discovery graduate program or accredited paralegal program), it’s free(!), either in person or livestreamed.  It’s also free if you’re university or college faculty, professional staff, judicial officials, clerks and employees of government bodies and agencies, it’s free(!) for you too.  Come check it out!

So, what do you think?  Are you going to attend the conference next month?  If not, why not?  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.

Kelly Twigger of ESI Attorneys: eDiscovery Trends 2018

This is the sixth of the 2018 Legaltech New York (LTNY) Thought Leader Interview series.  eDiscovery Daily interviewed several thought leaders at LTNY this year (and some afterward) to get their observations regarding trends at the show and generally within the eDiscovery industry.

Today’s thought leader is Kelly Twigger.  Kelly is a Discovery Strategist and the Principal of ESI Attorneys, one of the first law firms in the country dedicated to advising clients on the risks and challenges in ESI, including eDiscovery. ESI Attorneys works differently than a traditional law firm – they partner with businesses, law firms and municipalities that do not have discovery counsel knowledgeable to both advise on planning and preparing for eDiscovery and act as discovery counsel across litigation matters to achieve consistency and predictability. Kelly also has a passion for ensuring that lawyers and legal professionals have the tools they need to understand and leverage the power of ESI in discovery, and has developed a SaaS based platform to provide the ability for lawyers to get up to speed and stay there with eDiscovery Assistant.  eDiscovery Assistant is a web based curated eDiscovery research tool and learning center that allows users to conduct eDiscovery specific case law research, use curated discovery rules, forms and checklists together with a Learning Center that rethinks the delivery of legal education. CloudNine uses eDiscovery Assistant to identify and provide case law on this blog. In 2014, the Wisconsin State Bar recognized Kelly as a Legal Innovator for her development of eDiscovery Assistant. Kelly is a regular speaker at national and local events, blogger and the eDiscovery columnist for Above the Law.

What were your general observations about LTNY this year?

{Interviewed after the show}

If I had to pick one word to describe Legaltech this year, I would use the word change. I think that it was clear that the format of Legaltech is undergoing a substantial amount of change, both in terms of personnel and the approach to the show. It is not on the grand scale that it used to be, but it’s still the place to meet up with industry colleagues and get a glimpse of what’s happening in legal tech. The show had less focus on eDiscovery this year – and I attribute that to three things:  the consolidation of service providers in the space, the perceived maturity of the eDiscovery market (it’s not), and the development of new areas of risk in legal that are sexy – artificial intelligence, blockchain, etc. No question those issues are stealing the show in conversations. I saw some pretty amazing smaller companies with revolutionary (for the legal space) products that can start allowing some of the change in the practice of law that we’ve been talking about for a decade. I saw significantly less service providers at the show, because most of those folks moved to off-site meetings instead of having a presence on the vendor floor.  I felt like this year’s show gave credence that we are starting to recognize the changes in the practice of law – boutique firms is a good example – and to build the technology that can support them.

If you were “queen of LTNY” for a year, what kind of changes would you make?

Wow, now that’s a question. What changes would I make to the show? I was driving before we sat down and to talk, and I was thinking about Legaltech in relation to some of the other conferences in which I participate. The Masters Conference is one, the University of Florida Conference in which you and I are going to be on a panel together (tomorrow) is one. I feel like my learning is accelerated greater at those types of events where they are more intimate, where there’s more interaction between the people who were there versus Legaltech.

Legaltech has great panels, but they’re so spread out, in so many different rooms, with so many other events going on at the same time, and so many folks setting up private meetings outside of the conference. It’s a very different dynamic. I would restructure it to encourage those meetings, but also to allow participants to take advantage of the sessions. Why not acknowledge the need to have those meetings and build them into the show? I run from place to place most of the day – my fitness tracker logs many miles a day at Legaltech. It’s too hard to fit everything in a two to three day period that you want to. I’d like to see it facilitated better to make both of those things possibilities.

I’m not an event planner and that’s an easy thing for me to say and a hard thing to make happen. I’m not sure if that’s constructive feedback, or if ALM wants to hear it. But, that’s my thought. You’re getting so many truly knowledgeable people in a space — not just speakers but participants as well — who bring so much to the table from a support focus, from a paralegal focus, from a lawyer focus, from a consultant focus, and I don’t know that the event capitalizes on the value that comes to that conference in the format that it currently has. What I would love to see is the ability for more interaction to capitalize on that knowledge base.

eDiscovery Assistant has a lot of features and resources available. Obviously, one of the most notable aspects of that is all the case law you cover on your site. Do you have any observations on key trends you’ve seen with regards to the eDiscovery case law lately that has been evident from your perspective?

Yes. eDiscovery Assistant is our platform where we really strive to be a resource for people who are engaging in electronic discovery. eDA does not handle data, it’s a strategy tool. It’s a combination of legal research for discovery and a place to get answers on demand when you have to respond to the motion to compel or draft RFP’s on how to request Facebook data. The case law has been aplenty already for 2018 – as of March 24, we have 192 discovery decisions from across the country in the database, all tagged and able to be sorted by eDiscovery issue (think proportionality, social media, form of production, sanctions, etc.).

I’m seeing some inconsistency in application of the amendments from 2015. I’m also seeing that we don’t necessarily have lawyers who are coming to the table more informed about eDiscovery or how to argue issues or educate the judges. In terms of development, we’re seeing a lot more case law in social media, but primarily within the criminal context. We’re starting to see some really interesting developments with cloud-based issues, like the U.S. v. Microsoft Corp. case.

The Supreme Court heard U.S. v. Microsoft Corp. in late February on the issue of whether Microsoft should be required to pull data back from Ireland when the data actually lives in Ireland and not in the United States. The case will have a fundamental impact on the interpretation of the Stored Communications Act, how and where data is stored, and what the government’s reach is under that law. The decision is going to have a huge impact on businesses and the way that we manage our data as consumers from a cloud perspective. How many cloud based applications are you using?  I probably have 50 or more. I’m interested to see what else will come about this year in terms of development, but so far in the case law, we’re still waiting on new things to come about and lawyers to grasp these concepts and argue them effectively to the court. We’re still seeing a lack of education that I’d like to change. Clients deserve the representation on these issues, and we’ve never had such rapid development in an area of the law like we are seeing now. We have 910 cases in 2017 in eDA. 910 cases? That’s crazy.

One of the hotter topics this year at LTNY was GDPR. Where do you think the majority of organizations stand with GDPR? How do you think these next few months are going to unfold?

What I’m seeing with GDPR and working towards compliance varies tremendously across the size of organizations. There still remains a lot of confusion about the applicability of GDPR and what organizations need to be thinking about, and whether they need to be. If you are thinking approaching GDPR compliance, what it is that you specifically need to be addressing? Some of that goes back to the fact that information governance is not as prominent in every organization as it should be, or that those of us in this space would like to think that it should be. I’m not sure that I have great answers for you on GDPR, except that the next few months are going to be very interesting. I think that the enforcement and what comes out of GDPR is going to be the most telling. If eDiscovery is any indication, we won’t see a lot of action for some organizations until we see some enforcement decisions that really bring about the emphatic nature of the privacy regulations.

With regard to eDiscovery, information governance and cybersecurity, what are people not talking enough about that they should be?

That varies by organization. When we have panel discussions, there’s often a lot of discussion at the very high level of cybersecurity, GDPR, or blockchain, and privacy issues. eDiscovery is getting pushed to the wayside prematurely, almost as if some folks are tired of talking about it. I don’t just say that because it’s what we do every day, but because I see it every single day – lawyers at every size organization who don’t know the basics or the technology and how to ask the questions and engage effectively in eDiscovery. A lawyer the other day told me he had friends retire from practicing rather than wade into eDiscovery, it causes that much angst. There are many, many, organizations, law firms and clients in general that are still down at the very base considerations of, “we know we need to be thinking more about ESI and what we’re doing with it, but we don’t know how to think about those things, or what our goals need to be, or how to structure them, because we’re not used to working with business information or governance IT altogether. We’re still in that silo kind of fashion.”  While the market has matured in service delivery, the clients are not there yet. There are a lot of basic things in information governance and eDiscovery that still need to be considered. The more risks you have in cybersecurity and these other issues, the more you’re likely to have tackled them, but those are also risks that are addressed by IT directly and so the liaison between the two isn’t as difficult as it is with eDiscovery. We’ve still got a long way to go.

What would you like our readers to know about things you’re working on?

We are working to solve the problem that I am passionate about – getting lawyers and legal professionals knowledgeable about eDiscovery and getting the clients the representation they need. That there are folks who really don’t know how to get started, lawyers who don’t know how to handle a case with significant or even any electronic discovery involved, which most cases are now – whether they’re law firms, whether they’re lawyers in-house or whether they’re government attorneys. If we want folks to be able to have the ability to understand what the processes are in electronic discovery and dealing with privacy and even some cybersecurity issues, and how to be able to address them, we have to solve the education and knowledge problem first, and that’s what we are trying to do by rethinking the delivery of education in short, manageable and practical chunks.

As lawyers, our job is to issue spot, and we can’t issue spot what we don’t know. In eDiscovery Assistant, we’ve built an online community of users with a knowledge base and continuing education to help tell them by answering questions that arise with developments in technology and the law. For example, here are the issues, now that your clients are migrating to Office 365, here the issues in capturing social media. Here are the issues when you’re using a platform and your service provider suddenly goes under. What do you need to be thinking about? How do you set up contract review? How do you collect any kind of data when you’re sitting in your office and you suddenly have a client’s hard drive? We set out to build a platform that addresses the practical needs of lawyers who have little time, increased client demands, AFA’s etc. and can still give them a credible understanding of what they need to do in eDiscovery. It’s very unique to the legal space. We’ve never had anything like this. We want to create a space where lawyers and legal professionals and anyone who touches the eDiscovery process – these areas where we’re dealing with ESI issues, privacy and cybersecurity and the like – will be able to come in and get up to speed quickly. That’s really what we’re working on. We’re rethinking both the delivery of legal research and also legal education on these topics. We’re really excited about what we’re doing and looking forward towards 2018 has to bring.

Thanks, Kelly, for participating in the interview!

Also, we’re getting ever closer to the University of Florida E-Discovery Conference, which will be held this Thursday, March 29.  As always, the conference will be conducted in Gainesville, FL on the University of Florida Levin College of Law campus (as well as being livestreamed), with CLE-accredited sessions all day from 8am to 5:30pm ET.  I (Doug) am on a panel discussion at 9am ET in a session titled Getting Critical Information From The Tough Locations – Cloud, IOT, Social Media, And Smartphones! with Craig Ball, Kelly, and with Judge Amanda Arnold Sansone.  Click here to register for the conference – it’s only $199 for the entire day in person and only $99 for livestream attendance.  Don’t miss it!

As always, please share any comments you might have or if you’d like to know more about a particular topic!

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

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

CloudNine Acquires eDiscovery Product Lines from LexisNexis: eDiscovery Breaking News

OK, it’s not exactly “breaking” news since we announced it yesterday, but it’s still exciting!  If you didn’t see our press release, let me “break” the news now: CloudNine has acquired the LexisNexis eDiscovery product suite, which includes LAW PreDiscovery, Early Discovery Analyzer (EDA) and Concordance!

In conjunction with the product line purchase, an affiliate of Peak Rock Capital made a significant investment in CloudNine, underscoring its support of CloudNine and its vision for the future of these products.

Needless to say, this is a big announcement for CloudNine and we’re excited to not only carry on support for these products but also invest in them, delivering enhanced capabilities to existing and new customers of these products.  As VP of Products and Services at CloudNine, I’m personally excited to be working with the great customer success and product support teams of these products.  So, if you’re an existing LAW, EDA or Concordance customer, you’ll still be working with many of the same people for training and support that you have been.

Regardless of whether we’re talking off-premise (cloud) or on-premise, our focus is on solving problems.  While we are CloudNine, the acquisition of these trusted on-premise solutions will enable us to immediately begin to solve problems for that segment of the market with a portfolio of proven and performing products.

Now, if you’re an existing LAW, EDA or Concordance customer, I’m sure you probably have some questions about the acquisition and what it means to you.  Here’s a link to an FAQ document that addresses several questions that I’m sure many of you have.  If you have any additional questions, feel free to drop me a line at daustin@cloudnine.com and I will do my best to get your questions to the right person on our team that can provide answers.

Also, we’re getting ever closer to the University of Florida E-Discovery Conference, which will be held on Thursday, March 29.  As always, the conference will be conducted in Gainesville, FL on the University of Florida Levin College of Law campus (as well as being livestreamed), with CLE-accredited sessions all day from 8am to 5:30pm ET.  I’m on a panel discussion at 9am ET in a session titled Getting Critical Information From The Tough Locations – Cloud, IOT, Social Media, And Smartphones! with Craig Ball, Kelly Twigger, with Judge Amanda Arnold Sansone.  Click here to register for the conference – it’s only $199 for the entire day in person and only $99 for livestream attendance.  Don’t miss it!

So, what do you think?  Do you use LAW, EDA or Concordance?  Great – we look forward to working with you!  And, as always, please share any comments you might have or if you’d like to know more about a particular topic.

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

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

George Socha of BDO: eDiscovery Trends 2018

This is the fourth of the 2018 Legaltech New York (LTNY) Thought Leader Interview series.  eDiscovery Daily interviewed several thought leaders at LTNY this year (and some afterward) to get their observations regarding trends at the show and generally within the eDiscovery industry.

But first, this week’s eDiscovery Tech Tip of the Week is about The Importance of Metadata.  Metadata is key to the management, tracking and retrieval of documents within the discovery process.  Whether you wish to locate a document sent or received by a particular individual, filter a collection by a relevant date range or locate documents that have been marked as responsive or privileged, the ability to be able to search both the system metadata (that metadata that is extracted from the document when it is processed for review) and user metadata (that metadata used by legal professionals to categorize and track documents during the review and production steps in discovery) is key to being able to manage that document collection efficiently and effectively.  If you don’t think metadata is important to a case, here are 10.8 million reasons why it is.  :o)

To see an example of how Searching for Metadata is conducted using our CloudNine platform, click here (requires BrightTalk account, which is free).

Today’s thought leader is George Socha of BDO.  George is Managing Director at BDO.  Co-founder of EDRM and named an “E-Discovery Trailblazer” by The American Lawyer, George has nearly 30 years’ experience assisting a broad range of organizations with all facets of electronic discovery as well as information governance, domestically and globally. Prior to joining BDO, George spent 16 years as a litigation attorney in private practice and then 13 years running his own consulting firm. He received his law degree from Cornell Law School and his undergraduate degree from the University of Wisconsin-Madison.

What were your general observations about LTNY this year?

Although I have not had the chance to attend much of the show myself, I have been asking others what they think.  The responses have been completely contradictory.  Long-time attendees have said attendance is way down and, for some, the program seems somewhat flat.  Newer attendees find a lot to like, appreciating the programming and the opportunities to mingle.  For me, the conference provides an opportunity to meet in person with colleagues and clients.

With regards to the industry in general, what do you think are some of the hot topics people are talking about?  And, what do you think are some of the hot topics that people should be talking about?

I think that we continue to see a scenario where far too few attorneys have a solid understanding of what they could do and should do with respect to electronic discovery – and even fewer actually are moving forward on those fronts. Even after all these years, it seems the basics don’t get the attention they deserve.

While we spend a lot of time at conferences like this one talking about advanced (and worthy) topics such as predictive coding, those aren’t the commonplace topics of discussion when it comes to actual matters. I continue to encounter folks in law firms and corporate legal departments who are just now are beginning to grapple with electronic discovery; they have never had to deal with it before. I continue to encounter practicing lawyers who have heard the phrase electronic discovery but don’t appreciate what it signifies, aren’t familiar with even the best known players in our space and have never heard of e-discovery-focused organizations such as EDRM and The Sedona Conference.

By now, if you are a litigator, you should know about the EDRM diagram. You should know about the Sedona Principles. You should know about the two sets of FRCP changes in 2006 and 2015. That we encounter folks who aren’t familiar with any of those tells us something about the actual state of the industry.

There has been a lot of increased focus on data privacy this year with GDPR coming into effect.  Where do you think organizations stand with regards to getting compliant with GDPR?  Do you expect to see a lot of organizations scrambling?

From what I’ve seen, there is a lot of uncertainly about what constitutes compliance with GDPR. And, of course, if it’s unclear what constitutes compliance with GDPR, it’s rather hard to figure out how one becomes compliant. I would say that even at this late date, larger corporations are much more focused on GDPR than smaller organizations and law firms.

In larger law firms, there are people who have been spending a fair amount of time looking at GDPR, figuring out what compliance means, and developing and delivering services to help clients be ready for the regulation’s effective date. And there are certainly corporations – mostly larger ones – that also have been spending a fair amount of time and effort and money, taking on the same issues. But, when you look at the larger body of businesses and law firms, GDPR is not exactly front and center for them.

EDRM had a major focus on putting together a guide for technology assisted review last year. Where does that stand and what are you hoping will be the end result of that effort?

Work is underway and progressing well. The guide is divided up into several portions and we’ve got drafts of each portion. Those continue to be developed and reviewed. They are going to be distributed first to the larger EDRM membership for review, just as we’ve done in the past, then released for public comment.  {Editor’s Note: EDRM has since announced that the draft guidelines will be released for EDRM member review in March and a final draft will then be released for public review later this spring.}

I think ultimately we are looking at two sets of materials. The first one will be a nuts and bolts, “how do you do this stuff”, set of guidelines for the people who are in the trenches, mostly people in law firms and corporations. The second set of materials will focus on guidelines for the judiciary to help educate and guide judges through at least the major issues that we see will associated with predictive coding.

When you talk about the nuts and bolts, are we talking a preferred approach or are we just talking a general idea of the things you need to look for in conducting a predictive coding project?

We are talking a framework so that people have a construct to use and a context in which to place all of this. This won’t be so much about specific recommendations as there are too many and those are too tightly tied to specific tools, methodologies, and data seta; just consider the various approaches to predictive coding used today: TAR 1, TAR 2, systems with seed sets, systems with continuous active learning, and so on. We have to be careful to avoid putting out a set of guidelines that box people into the use of only one approach.

In addition, this is a rapidly changing area. We want something that will stand up over time rather than become obsolete as soon as the next big change happens.

And the tools are changing – rapidly. There are things we can now do with predictive coding that just weren’t viable options three years or even two years ago.

If you were “king of LTNY” for a year, what would you do in terms of structuring the curriculum to try to address some of the gaps in eDiscovery knowledge among the legal profession you mentioned?

Not surprisingly, I would look to focus on the practicalities of e-discovery: who can do what, how, and with what tools and techniques, to accomplish common and developing objectives. I would try to provide both basic, medium and advanced level content. To the extent practical and not too difficult, I also would try to do provide sessions that are more hands on.  Of course, this all is a pretty tall order, so I might also want to be a king with limitless time and resources.

I’d try to make the topics narrow enough so that people could get into depth on things and try to offer a wide range. By the way, I would not by any means focus only on electronic discovery, there’s a lot else out there.  Security is a major concern, and so is privacy. There should be a strong focus on that because law firms continue to be areas of risk.  Similarly, a focus on getting your electronic house in order through information governance is very important. And then, let’s see what other areas to cover as other issues emerge.  Again, a pretty tall order.

What would you like our readers to know about what you’re doing and what EDRM’s doing?

As we discussed earlier, EDRM is currently is working on the guidelines of technology assisted review/predictive coding as well as working on a GDPR project. These are the first two undertakings for the “new” EDRM – the EDRM under new management within Duke Law. We should look forward to some new initiatives in the coming year, a broadened scope of activities because EDRM is now part of Duke and, as a result, has a breadth of capabilities that weren’t there before.

Thanks, George, for participating in the interview!

Also, we’re getting ever closer to the University of Florida E-Discovery Conference, which will be held on Thursday, March 29.  As always, the conference will be conducted in Gainesville, FL on the University of Florida Levin College of Law campus (as well as being livestreamed), with CLE-accredited sessions all day from 8am to 5:30pm ET.  I (Doug) am on a panel discussion at 9am ET in a session titled Getting Critical Information From The Tough Locations – Cloud, IOT, Social Media, And Smartphones! with Craig Ball, Kelly Twigger, with Judge Amanda Arnold Sansone.  Click here to register for the conference – it’s only $199 for the entire day in person and only $99 for livestream attendance.  Don’t miss it!

As always, please share any comments you might have or if you’d like to know more about a particular topic!

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