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Industry Trends

Legaltech 2020 Preview Edition: eDiscovery Trends

As you can tell by the new snazzy custom CloudNine NYC logo, Legaltech® begins in exactly one week!  Yes, I know that Legalweek® begins on Monday, but the heart of the week is the Legalweek conference.  Hey, I remember when the “T” in Legaltech was capitalized!  So, what’s happening this year?  Let’s take a look.

One thing that’s happening is that CloudNine will once again be at the show in a big way!  Of course, we will have a booth in America’s Hall 2 (booth #3000), but that’s not all.  On Tuesday and Wednesday, February 4th and 5th, CloudNine will launch its new NineForum Discovery Education Series where prominent and highly respected eDiscovery and litigation support experts will deliver 9 TED-style talks, 20 minutes each, covering important topics impacting the legal community.  We’ve got a great list of eDiscovery thought leaders lined up for our second annual NineForum, so if you are at the show, come check it out.  The schedule for the topics and speakers, along with everything else CloudNine at Legaltech is available here.

Not only that, but on Wednesday, February 5th from 4pm to 6pm is the 4th annual Drinks with Doug (as in me!) and Mary (as in Mary Mack!), sponsored by EDRM, CloudNine and Compliance Discovery Solutions.  Meet the new boss, same as the old boss!  ;o)  Believe it or not, you can still register here.  Once again, we have a ton of people who have already registered and, trust me, you don’t want to be left out.  We’re going to take over Ruth’s Chris Steak house.  Again.

Anyway, as always, there are some interesting sessions happening at the show this year.  Here are some of the highlights.  Side note: ALM has set up the Legaltech site this year where you have to click “Learn More” for each session to get the full description of it – very annoying!  I’ve opened them all up and captured them, so you don’t have to.  :o)  Next week during the show, I’ll cover the main conference sessions each day that relate to eDiscovery, Information Governance, Cybersecurity and Data Privacy to give you a complete sense of options.  In the meantime, here are some notable sessions to check out at the show:

Tuesday, February 4:

11:30am – 12:30pm:

Tech Matters: Managing Legal and Ethical Issues at the Cutting Edge of eDiscovery

In just 10 years the case law around eDiscovery AI & Analytics has exploded. Over 100 published opinions specifically address TAR and Predictive Coding–evaluating complex and nuanced issues like defensibility, workflow design, protocol negotiation, and transparency obligations. In the meantime, dozens of state bar associations have imposed ethical obligations for lawyers to maintain technical competency, including within eDiscovery. Thomas C. Gricks III will lead an educational panel of experts covering the key legal issues around eDiscovery and technology.

Key takeaways:

  • Review the jurisprudence around technological competency obligations
  • Survey the key case law governing the application of machine learning to eDiscovery
  • Understand the potential ethical issues around technology

Speakers: Tom Gricks III – OpenText; Judge Andrew Peck – DLA Piper; David Stanton – Pillsbury Winthrop Shaw Pittman; Andrea D’Ambra – Norton Rose Fulbright

2:00pm – 3:00pm

Are you TAR? Who Cares. How to Focus on what a System Does Rather Than on What it is Called

There is no question that machine learning is a key piece of the eDiscovery solution. Join this session to cut through the noise of terminology and learn the different functionalities, use cases, and methodologies necessary to evaluate the right tool for your needs. Jeremy Pickens, Ph.D. will lead an educational lecture to demystify the nomenclature, explain eDiscovery machine learning in plain language, and help attendees understand strengths and weaknesses along with workflow best practices. With nearly 50% of corporate legal teams having reported using some form of TAR already and another 80% expecting to increase spending on machine learning tools, now is the time to bring yourself up to speed.

Key takeaways:

  • Learn how to evaluate and compare different approaches and their relative strengths and weaknesses
  • Understand the terms and definitions of eDiscovery machine learning tools: TAR, Predictive Coding, CAL, Clustering & Concept Browsing
  • Review actual case metrics and statistical breakdowns of different workflows and their impact on the review process

Speakers: Ethan Ackerman – Morgan Lewis; Emily Cobb – Ropes & Gray; Jeremy Pickens – OpenText; Robert Keeling – Sidley Austin.

3:30pm – 4:30pm:

With Over $1B in Venture Backed Capital, Could We be on the Verge of Another Tech Bubble?

If you’re head’s spinning while trying to keep up with the recent explosion of legal AI companies & capraise pressers of the past couple years, this session will slow things down for you.  We’ll map out the new LegalTech landscape, key innovations, trendlines, and of course all the expectations that come with that hype. We’ll also profile the biggest players in the VC space and how they’re reshaping our profession.

Key takeaways:

  • Solution landscape of LegalTech startups per area of focus
  • Heatmapping the hottest growth areas of legal innovation
  • Profiling VCs funds that are investing most heavily in legal AI companies, and why
  • Business of law implications

Speakers: Tess Blair – Morgan Lewis; Brad Blickstein – Blickstein Group; James Goodnow – Fennemore Craig; Alex Nwaka – Touchdown Ventures; Wade Peterson – Fredrikson & Byron, P.A.; Christine Chalstrom – Sadie Blue Software.

Wednesday, February 5:

9:00am – 10:00am:

Plenary Session – Blockchain and Emerging Technology Researcher Bettina Warburg

With a gift of clearly explaining complex—and confusing—technologies, Blockchain researcher Bettina Warburg educates executives in leveraging emergent technologies including AI, IoT, and others. Click here to view her TED talk on how blockchain will transform the economy.

Speaker: Bettina Warburg, Blockchain researcher, entrepreneur and educator, Co-founder, Animal Ventures, Tech on Politics.

11:00am – 12:00pm:

Mobile Data: Issues in Data Privacy and Data Protection

Mobile data has become arguably the most important source of information in litigation, investigations, and just about every form of data discovery—and data privacy and data protection are arguably the biggest challenges with mobile data. Have we lost the battles over data privacy and data protection with our data exposed for all to see? Is more evidence a bad thing? Join us for a lively conversation as leading authorities in legal forensics and mobile technology discuss and debate the vital mobile data issues of the day and discuss mobile protocol best practices.

Key takeaways:

  • Key privacy issues posed by mobile data
  • Best mobile practices from leading authorities in legal forensics & mobile technology
  • Business & discovery implications of mobile technologies

Speakers: David Horrigan – Relativity; Gail Gottehrer – Law Offices of Gail Gottehrer; Ed McAndrew – DLA Piper; Ines Rubio – BSI; Ruth Hauswirth – Cooley LLP; Shahaf Rozanski – Cellebrite, Inc.

1:30pm – 2:30pm:

Your Career in Data Discovery, Data Privacy, and Data Protection

Legal careers are changing rapidly, and technology is a major force driving these professional opportunities. No longer are career paths siloed between law and technology—instead legal technologists in a variety of roles are changing what it means to be a legal professional—especially in data discovery, data privacy, and data protection. The wave that brought us the chief information officer a few years ago is now creating opportunities for new roles such as data privacy officer, chief information security officer, data science attorney, and chief transformation officer. In this session, we’ll examine these new career opportunities with perspectives from legal professionals and legal recruiters.

Key takeaways:

  • Career statistics & trends in data privacy and related fields
  • Certifications & degrees that matter most
  • Salary ranges for various positions
  • Business implications

Speakers: David Horrigan – Relativity; Jared Coseglia – TRU Staffing Partners; Ines Rubio – BSI; David Kilgore – Rackspace; Scott Milner – Morgan Lewis; Kelly Twigger – ESI Attorneys, E-Discovery Assistant.

Thursday, February 6:

9:00am – 10:00am:

Judicial Foresight is 2020 at Legalweek: A View From the Bench

Join us for ALM’s open-to-all legendary Judicial Keynote Session as the panel discusses the cases that made (or missed) the ALM headlines in 2019-2020.  Caselaw discussions will focus on the ever changing landscape of data and biometric privacy, privilege disputes, spoliation, recent news in iPhone forensics and social media discovery in litigation.   The panel will also survey the audience to provide meaningful feedback on ethic obligations under the ABA Rules.

Speakers: Hon. Timothy Driscoll, Justice of the Supreme Court, State of New York; Judge Andrew Peck, Senior Counsel, DLA Piper; Hon. Willie J Epps, Jnr, United States Magistrate Judge, United States Western District of Missouri; Patrick Oot, Partner, Co-Chair, Data & Discovery Strategies Practice Group, Shook, Hardy & Bacon L.L.P.; Hon. J Michelle Childs, United States District Judge, District of South Carolina.

12:30pm – 1:30pm:

“7 “Reasonable Steps” for Legal Holds of ESI and Other Documents

A session based on the wildly popular book published by ARMA International, you’ll learn about the 7 “reasonable steps” and get an update on where things have changed since the original publication.

Key Takeaways:

  • Learn about the 7 “reasonable steps”.
  • Understand how expectations have changed over time.
  • Gain actionable knowledge that you can apply to your handling of ESI.

Speakers: John Isaza, Esq – Rimon, P.C.; John Jablonski, Esq – Gerber Ciano Kelly Brady LLP.

That’s just a sampling of the sessions at Legaltech next week.  If you’re there, look me up at the CloudNine booth, especially during the NineForum sessions!  Hope to see you there!

So, what do you think?  Are you going to Legaltech next week?  It’s just a week away!  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.

A Different Type of Throwback Post, Along with ACEDS and Legaltech Updates: eDiscovery Best Practices

This isn’t your typical Throwback Thursday post.  For starters, it isn’t Thursday, it’s Friday (yay!).  And, it’s not so much of a throwback on a topic we’ve covered in the past, but rather a shout-out to a new article from an eDiscovery Daily alum!  And, we have an update on an ACEDS Houston event from yesterday and reminders of some CloudNine events coming at Legaltech!

For those who have been reading the blog since the early years, you may remember our colleague Jane Gennarelli, who used to provide a weekly post in the early years of the blog on various aspects of litigation support and eDiscovery, especially from a project management viewpoint.  Even though Jane hasn’t written on our blog for several years, we have continued to partner on projects from time to time with her and Jim Feuerstein and their team over at Labor Street consulting.

Jane has written a new article, available on her Labor Street site, titled You need that when???.  In the article, Jane talks about two different emergency scenarios in actual litigation cases – anybody who has worked in litigation for a while has probably seen similar “fire drills” and discusses how one turned out well, while the other didn’t turn out so well.  The key to success on the one that did work was treating the effort and applying sound project management techniques including up-front planning, providing instructions to the team and confirming understanding of those instructions, and monitoring the work.  Jane always has some great advice on project management best practices, so I encourage you to check it out!

Yesterday, we had our first ACEDS CLE luncheon of 2020 for the Houston chapter (of many, hopefully!) at The Houston Club in downtown Houston.  If you’re Houston-based, you missed a great lunch sponsored by Compliance Discovery Solutions and X1 and a terrific Information Governance CLE presentation by Todd Brown and Lisa Cromwell of Access Sciences!  Here’s a Linkedin post courtesy of Jean Rivers about the event.  More to come as the year progresses!

Finally, let the countdown begin!  Legaltech® is part of Legalweek and will be held from February 4 through 6 at the New York Hilton Midtown.  And, CloudNine will be once again exhibiting at the conference, at booth 3000 in America’s Hall 2.  And, we’re once again excited to be co-sponsoring the annual #DrinkswithDougandMary cocktail reception with Mary Mack, Kaylee Walstad and the rest of the EDRM team!  This is our fourth year and we’re grateful to Marc Zamsky and Compliance Discovery for co-sponsoring as well.  It will once again be at Ruth’s Chris Steak house and will happen Wednesday, February 5 from 4-6pm.  You can register to attend here.  And, as I told you on Wednesday, we will be conducting another NineForum education series of TED-talk discussions from our booth, so please check that out as well!

So, what do you think?  Are you attending Legaltech this year?  If so, please check out our NineForum session series!  And, as always, please let me know your thoughts or if you have a topic that you’d like to suggest.

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.

NineForum is Back for Another Year at Legaltech!: eDiscovery Best Practices

It was such a success last year, we decided to do it again this year!  At Legaltech, CloudNine will once again be conducting NineForum – our series of TED-style talk sessions right from our booth!  And, we have another terrific group of eDiscovery thought leaders to present on great topics!

On Tuesday, February 4 and Wednesday, February 5, prominent and highly respected eDiscovery and litigation support experts will once again deliver 9 TED-style talks, 20 minutes each, covering important topics impacting legal professionals at CloudNine’s Legaltech booth in America’s Hall II (#3000) at the New York Hilton.

Here is a list of the speakers and sessions we have put together for this year’s NineForum series:

Tuesday, February 4th

Session 1: 10:30-10:50am

Speaker: Tom O’Connor, founder and Director of Gulf Coast Legal Technology Center

Topic: Do’s and Don’ts of a 30(b)(6) Witness Deposition

Session 2: 11:00-11:20am

Speaker: Philip Weldon, Manager, eDiscovery & Practice Technology at Fried Frank

Topic: 5 Secrets to “Crushing” eDiscovery Processing in 2020

Session 3: 1:00-1:20pm

Speaker: Mike Quartararo, President of ACEDS

Topic: Skills that eDiscovery Professionals Need to Succeed in 2020

Session 4: 1:30-1:50pm

Speaker: Mary Mack, Chief Legal Technologist at EDRM

Topic: Bold eDiscovery Predictions for 2020:  What to Expect and How to Prepare

Session 5: 3:30-3:50pm

Speaker: Rick Weber, President of Elijah Ltd.

Topic: The Threat Within:  Protecting Against Employee Data Theft

Wednesday, February 5th

Session 6: 10:00-10:20am

Speaker: Robert Conley, VP Forensics and Strategic Operations at Rational Enterprise

Topic: A Day in the Life of Practical Information Governance

Session 7: 10:30-10:50am

Speaker: Kelly Twigger, Founder of eDiscovery Assistant and Principal of ESI Attorneys

Topic: Five Most Significant eDiscovery Cases of 2019:  Their Impact on 2020 and Beyond

Session 8: 12:00-12:20pm

Speaker: Joy Murao, Founder and CEO of Practice Aligned Resources

Topic: Foresight is 2020:  Why Legal Professionals Should Be More Proactive in Maximizing Technology Benefits

Session 9: 12:30-12:50pm

Speakers: Bradette Groves, Director of Project Management and Neil McLean, Discovery Consultant of Complete Legal

Topic: Transforming Your Plaintiffs Practice:  Leveraging eDiscovery to Maximize the Value of Your Case

CloudNine’s CEO Tony Caputo and I will be co-presenting at some of the sessions.  For more details on the sessions, click here.  All of these sessions will be free-of-charge to all show attendees.  So, if you have at least an Exhibits Plus Pass (only $30), you can check them all out.  How cool is that?!?

Anyway, I want to thank all of the speakers for agreeing to participate and I’m very excited to once again include NineForum in the educational efforts from CloudNine that include this blog and our monthly webcasts (including our upcoming webcast next Wednesday)!

So, what do you think?  Are you attending Legaltech this year?  If so, please check out our NineForum session series!  And, as always, please let me know your thoughts or if you have a topic that you’d like to suggest.

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.

Is This the Winter of Our eDiscovery Business Confidence Discontent?: eDiscovery Trends

It’s that time again!  I’m here to cover the results of the Winter 2020 eDiscovery Business Confidence Survey, published (as always) on Rob Robinson’s terrific Complex Discovery site.  So, how confident are individuals working in the eDiscovery ecosystem in the business of eDiscovery?  Let’s see.

As always, Rob provides a complete breakdown of the latest survey results, which you can check out here.  As I’ve done for a couple of years now, I will provide some analysis and I’m continuing to take a look at all surveys conducted to look at trends over time.  So, this time, I will look at the results for all seventeen surveys to date, from January 2016 to present.  I’m also continuing to look at some of the numbers compared to their averages over all seventeen surveys as additional historical comparison.  And, I’ve changed up the bar charts to hopefully be easier to gauge historical numbers.

The winter 2020 survey response period was initiated on December 28, 2019 and continued until the registration of 146 responses this past Saturday.  Another high number of participants, thanks in part to support and promotion from both EDRM and ACEDS.

Software and/or Services Provider and Law Firms Still One-Two: As usual, Software and/or Services Provider respondents was the top group with 39.0% of all respondents, the highest percentage since Summer 2018 and about two percent higher than average for the seventeen surveys (36.9% average over that time).  Law Firm respondents were once again second at 30.8% of all respondents (slightly above the lifetime average of 30.4%).  Consultancy rose one spot to third at 13.0% (well below than the 17.8% lifetime average).  And Corporation respondents were fourth at 8.9%, higher than the lifetime average of 7.4%, but more a five percent drop from last survey. If you count law firms as providers (they’re technically both providers and consumers), providers account for 82.8% of total respondents, the least diverse survey since Fall 2018.  Here’s a graphical representation of the trend over the seventeen surveys to date:

So, how confident is another large group of respondents in eDiscovery business confidence?  See below.

Exactly Half of Respondents Consider Business to Be Good: This quarter, we saw a 1.3 point rise to 50% of respondents that considered business to be good, the lowest Winter number since 2017.  It’s also below the average of all surveys (54.1%) by 4.1%.  41.1% of respondents consider business to be normal, which is above the lifetime average of 38.5%.  And 8.9% of respondents rated business conditions as bad, which is the highest percentage since last Winter and 1.5 points above the lifetime average of 7.4%.  Just about every Winter shows a jump in “bad” votes, for some reason.  So, why is Winter a more pessimistic time of year?  Hmmm…  Here is the trend over the seventeen surveys to date:

So, how good do respondents expect business to be in six months?  See below.

A Majority of Respondents Once Again Expect Business to be the Same Six Months From Now: While most respondents (87.3%) expect business conditions will be in their segment to be the same or better six months from now, the percentage of those expecting business to be better was only 43.8%, while those expecting business to be the same was 53.4%. Those expecting worse business conditions dropped to 2.7%.   However, less than half of respondents also expected the same on revenues (only 44.5% for Same, with 51.4% for Higher), yet more than half of respondents expected the same on profits – 54.1% respectively.  So, it appears that respondents expect to make more, but not necessarily net more.  Capisce?  The percentage of respondents expecting higher profits did rise from the last survey another 2.3 points to 35.6%, but that’s still the second lowest Winter number ever and is 4.7% lower than the lifetime average.  Here is the profits trend over the seventeen surveys to date:

Will profits continue to be a damper on revenue projections in the future?  We’ll see.

Type This!  Increasing Types of Data Considered to Be Most Impactful to eDiscovery Business: Increasing Types of Data was the top factor for the third time ever at 25.3%, which was considerably higher than the lifetime survey average of 17.0%. Budgetary Constraints dropped one spot at 23.3% (half a percent lower than the 23.8% lifetime average).  Increasing Volumes of Data fell back to third at 18.5%, nearly 5 percent lower than the lifetime average of 23.3%.  Lack of Personnel was fourth at 13.0% (which is its lifetime average), Data Security was fifth at 12.3% (lifetime average 14.2%) and Inadequate Technology (once again) brought up the rear at 7.5% (even lower than its puny average of 8.7%).  Most everybody seems to be happy with their technology, or at least it’s not their biggest challenge.  The graph below illustrates the distribution over the seventeen surveys to date:

Budgetary Constraints, Increasing Volumes of Data, and Increasing Types of Data continue to consistently be the top three factors quarter after quarter with Increasing Types definitely trending up over the past several surveys.

Distribution of Respondents is Once Again Reasonably Even: Broken record time!  Operational Management respondents were once again the top group at 34.2% (2.2 points over the lifetime average of 32%) and Tactical Execution respondents were second at 33.6% (still 5.4 points over the lifetime average of 28.2%) and Executive Leadership respondents were last again at 32.1%, another 2.1 percent higher than last quarter (but 7.7 points lower than the lifetime average).  Here’s the breakdown over the seventeen surveys to date:

Clearly, we’ve shown that larger overall respondent groups (around 140 or more) leads to a much more even distribution than the earlier surveys where Executive Leadership respondents were consistently the largest group.

Again, Rob has published the results on his site here, which shows responses to additional questions not referenced here.  Check them out.

So, what do you think?  What’s your state of confidence in the business of eDiscovery?  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.

Be a Gator for a Day in March and Learn About InfoGov in Houston This Month!: eDiscovery Trends

A two-topic day for us with a couple of terrific educational opportunities!  One free CLE educational program in Houston comes up in just ten days!  And, the other happens in Florida and currently has early bird pricing available for a wonderful full day conference in March!

ACEDS Houston Event

Our first event of the year in the Houston chapter of the Association of Certified E-Discovery Specialists (ACEDS) is on Thursday, January 23rd from noon to 1:30pm CT at The Houston Club at 910 Louisiana Street, Suite 4900, Houston, TX 77002. Todd Brown and Lisa Cromwell of Access Sciences will be presenting Information Governance Essentials on that day.

This CLE educational* program will help you understand what Information Governance is and learn practical tips and best practices on applying Information Governance essentials to your Firm and Corporate practice, including a holistic approach to InfoGov and a 7-point InfoGov model!  With data in the world doubling every 1.2 years and data privacy considerations becoming vital due to the General Data Protection Regulation (GDPR) and California Consumer Privacy Act (CCPA), Information Governance has become more important than ever, so join us on the 23rd!  You can register here through January 22.

University of Florida E-Discovery Conference

Believe it or not, this is the eighth year for the University of Florida E-Discovery Conference.  As usual, the panel of speakers is an absolute who’s who in eDiscovery (be a gator, get it?).  And, if you act quickly you can save big to attend!

The annual one-day conference will be held this year on Thursday, March 19th from 8:00am to 5:40pm ET.  This year, the focus is to show you how to work smarter, not harder to ensure the success of your project.  As you can always expect from the U-Fla conference, there are a veritable plethora of experts, including Craig Ball, George Socha, Tom O’Connor, Scott Milner, Kelly Twigger, Tessa Jacobs, David Horrigan, Canaan Himmelbaum, Suzanne Clark, Julie Brown, Mike Quartararo, and Ian Campbell.  And, a bunch of distinguished federal and state judges, including U.S. Magistrate Judges William Matthewman, Mac McCoy, Patricia Barksdale, and Gary Jones.  And, I’m honored to be participating for the third straight year as one of the presenters.  Do you like Jeopardy?  If so, you’ll want to catch our session – I’m going to be one of the “contestants” in “E-Discovery Jeopardy”.  Hopefully, I won’t be singing this song afterward!  ;o)

I’ll have more details on this conference as we get closer, but U-Fla is once again offering an “Early Bird Special” for the next week.  You can attend this day long conference packed with practical advice, experts, hot topics, and FL CLE for only $49 livestream or $69 in person!  After that, the price will go up to $99 for live streaming and $199 in person (still a bargain, but you can get it even cheaper if you act quickly).  Last year, the in-person slots were sold out, so that is another reason to act quickly.  You can register here for the conference.  Hope to see you there!

So, what do you think?  Are you looking for good eDiscovery education?  If so, consider checking these out!  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.

It’s 2020! Here’s a Current Survey and a Major Conference To Look Forward To: eDiscovery Trends

Happy New Year!  We’re back and better than ever, ready for not only a new year, but a new decade!  So, what’s on tap for the new year?  Here’s a survey currently underway and a major conference coming up in early February – both very familiar to you if you’re familiar with eDiscovery trends.  ;o)

It’s Winter, so it must be time for another eDiscovery Business Confidence survey from ComplexDiscovery!  Believe it or not, this is the fifth year and the seventeenth quarterly survey, and, since January 2016, more than 1,771 individual responses to the survey have been received from legal, business, and technology professionals across the eDiscovery ecosystem.  It’s a non-scientific quarterly survey designed to provide insight into the business confidence level of individuals working in the eDiscovery ecosystem. The core survey consists of nine multiple-choice questions focused on factors related to the creation, delivery, and consumption of eDiscovery products and services. Additionally, the survey includes three multiple-choice questions focused on the trajectory of key operational business metrics.  Literally takes 1-2 minutes to complete.  You can complete the Winter survey here – hurry, as the survey will close by mid-month.

If you follow our blog, you know that we’ve been covering the survey since the beginning and we will continue to cover it this year as well.  Here’s a link to our coverage of the Fall 2019 survey.

The major conference to look forward to is, of course, Legaltech®, which is part of Legalweek and will be held from February 4 through 6 at the New York Hilton Midtown.  As usual, it will include a slew of educational sessions and a ton of legal technology exhibitors, including (of course) CloudNine (shameless plug warning!).  We will be showcasing some exciting new developments in our Concordance®, LAW™, Explore™ and Review™ products.  And, we have some exciting brand new products we will also be showcasing.  And, we may have other exciting news to share as well.  More on that coming soon!  And, of course, eDiscovery Daily will be covering the event and will provide a preview later this month and a wrap-up after the conference.

And, at Legaltech, we’re once again excited to be co-sponsoring the annual #DrinkswithDougandMary cocktail reception with Mary Mack, Kaylee Walstad and the rest of the EDRM team!  This is our fourth year and we’re grateful to Marc Zamsky and Compliance Discovery for co-sponsoring as well.  It will once again be at Ruth’s Chris Steak house and will happen Wednesday, February 5 from 4-6pm.  You can register to attend here. Last year, we never closed registration and we “broke” the meeting room upstairs, so we’re taking over even more of the restaurant this year!  Come join us!

So, what do you think?  Are you attending Legaltech this year?  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.

Just in Time for the Holidays! Norton Rose Fulbright’s 2019 Litigation Trends Survey: eDiscovery Trends

No, that’s not Tom O’Connor, it just looks like him… ;o)

Hard to believe it’s the fifteenth edition, but here it is: Norton Rose Fulbright’s 2019 Litigation Trends Annual Survey.  We’ve covered it a few times over the years, but I don’t remember it ever being released this close to the holidays.  Nonetheless, the survey, as always, had some interesting findings.  Let’s take a look.

287 corporate counsel participated in the survey, all respondents were US-based or represent US-based organizations.  The breakdown was as follows: General Counsel 39 percent, Head of Litigation 19 percent, Associate/Deputy/Assistant GC 27 percent, Other 16 percent.

Some notable statistics include:

  • $1.5 million spent on disputes per $1 billion of revenue (median average);
  • 17 percent of respondents expect to increase their team sizes, with only 2 percent predicting a decrease;
  • 66 percent of respondents are using Alternate Fee Agreements (AFAs), but generally for only a minority of spend;
  • 62 percent of respondents now have to balance cross-border discovery with jurisdictional data protection regulations;
  • Greater than 50 percent feel more exposed to cybersecurity and data protection issues, while 11 percent feel less exposed (the second number is the one that surprises me);
  • 35 percent expect volume of disputes to rise moving forward, while only 9 percent expect the volume to decrease (a 26 percent net, which is a rise of 9 percent over 2018 and the third year in a row that the net went up);
  • The most common types of litigation pending against respondent companies over the past 12 months were Labor/Employment 49 percent (up 7 percent from 2018), Contracts 42 percent (up 1 percent), Personal Injury 18 percent (down 1 percent) and IP/Patents 18 percent (up 3 percent);
  • 44 percent of respondents identified Cybersecurity/data privacy as the most likely new source of dispute for their business on the horizon (more than four times the next likely sources: Regulatory and Climate/environment at 10 percent each).

That’s just a sampling of numbers, you can go to the Norton Rose Fulbright site here to download your own copy of the free report.

So, what do you think?  Do any of those numbers surprise you?  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.

Away CEO Resigns After “Slack Bullying” Revealed in Report from The Verge: eDiscovery Trends

“Yes”, you say, “this is an interesting story, but what does it have to do with eDiscovery?”  And, why is there a picture of Yogi Berra on this story?  Read on and you’ll find out.

After an article (Emotional Baggage, written by Zoe Schiffer) by The Verge last week exposed a story where ex-employees claimed Away, a luggage startup hid a “toxic work culture”, the travel brand announced it hired the Lululemon executive Stuart Haselden as the company’s new CEO to replace current CEO Steph Korey, who is stepping down just four days after the article.

Like many fast-growing startups, Away’s workplace is organized around digital communication. It’s how employees talk, plan projects, and get feedback from co-workers and higher-ups. Away used the popular chat app Slack, which has the motto ‘where work happens.”  Away embraced Slack in more ways than one — its co-founder, Jen Rubio, is engaged to its CEO Stewart Butterfield — but it took things further than most startups. Employees were not allowed to email each other, and direct messages were supposed to be used rarely (never about work, and only for small requests, like asking if someone wanted to eat lunch). Private channels were also to be created sparingly and mainly for work-specific reasons, so making channels to, say, commiserate about a tough workday was not encouraged.

The rules had been implemented in the name of transparency, but employees say they created a culture of intimidation and constant surveillance. Once, when a suitcase was sent out with a customer’s incomplete initials stenciled onto the luggage tag, Korey said the person in charge must have been “brain dead” and threatened to take over the project.  Korey often framed her critiques in terms of Away’s core company values: thoughtful, customer-obsessed, iterative, empowered, accessible, in it together. Empowered employees didn’t schedule time off when things were busy, regardless of how much they’d been working. Customer-obsessed employees did whatever it took to make consumers happy, even if it came at the cost of their own well-being.

An example of that was the Slack message that Korey sent the day before Valentine’s Day in 2018, when she decided she was going to stop the team from taking any more time off. In a series of Slack messages that began at 3AM, she said, “I know this group is hungry for career development opportunities, and in an effort to support you in developing your skills, I am going to help you learn the career skill of accountability. To hold you accountable…no more [paid time off] or [work from home] requests will be considered from the 6 of you…I hope everyone in this group appreciates the thoughtfulness I’ve put into creating this career development opportunity and that you’re all excited to operate consistently with our core values.”  Four days later, when she noticed two managers still had time off on the calendar, she was livid. “If you all choose to utilize your empowerment to leave our customers hanging…you will have convinced me that this group does not embody Away’s core values,” she said.  In both cases, the emphasis was Korey’s.

Throughout, the article talks about how overworked the small customer team was in keeping up with customer emails and how responses from Away management (especially Korey) continued to drive and berate them.

Away indicated that the plan to change its CEO had been in the works for months.  For her part, Korey posted a message on Twitter last Friday (before the CEO announcement) admitting to her “mistakes” and promising that the company “will continue to work to improve.” As for those mistakes, she notes: “At times, I expressed myself in ways that hurt the team. … I was appalled and embarrassed reading [the messages]. … I’m sincerely sorry for what I said and how I said it. It was wrong, plain and simple.”

The follow-up article from The Verge that discussed Korey’s resignation also discussed the use of Slack as part of the story, noting that “executives may begin rethinking the use of Slack. The kind of type-first, think-later style of communication that it inspires is categorically different than email, the technology that preceded it in companies like Away.”

So, what does this article have to do with eDiscovery?  It illustrates how communications in organizations are changing these days.  While the communication policies at Away are an extreme example, they certainly illustrate how communication is about much more than email these days – communications with colleagues via text and other messaging apps like Skype and Slack are routine in organizations these days as those messages are often the quickest way to get a response versus wading through a sea of emails.  When it comes to emails and urgent communications, as Yogi Berra once said about a popular restaurant in New York, “nobody goes there anymore, it’s too crowded.”  And, all of that data is discoverable.

So, what do you think?  Does your organization use Slack or another messaging app for internal communications?  Please share any comments you might have or if you’d like to know more about a particular topic.  It’s never over ’til it’s over.  ;o)

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’s Webcast Will Help You Learn about Important eDiscovery Developments for 2019: eDiscovery Webcasts

2019 was another busy year from an eDiscovery, cybersecurity and data privacy standpoint.  So busy, we couldn’t fit it all into a single webcast!  Nonetheless, what do you need to know about those important 2019 events?  Today’s webcast will discuss what you need to know about important 2019 events and how they impact your eDiscovery, data privacy and cybersecurity efforts.

Today at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast 2019 eDiscovery Year in Review.  In this one-hour webcast that’s CLE-approved in selected states, we will discuss key events and trends in 2019, what those events and trends mean to your discovery practices and provide our predictions for 2020. Key topics include:

  • How Much Data is Being Transmitted Every Minute on the Internet in 2019
  • What a Lawyer’s Notification Duty When a Data Breach Occurs
  • General Data Protection Regulation (GDPR) and Data Privacy Fines
  • Biometric Security and Data Privacy Litigation
  • Cell Phone Passwords and the Fifth Amendment
  • How Organizations Are Doing on Compliance with the California Consumer Privacy Act (CCPA)
  • Social Media and Judges Accepting “Friend” Requests from Litigants
  • How #metoo and Investigations are Impacting eDiscovery within Organizations
  • Whether Emojis Are the Next eDiscovery Challenge
  • The Challenge to Obtain Significant Spoliation Sanctions under the New Rule 37(e)
  • Whether Lawyers Are “Failing” at Cybersecurity?
  • Outside Hackers vs. Internal Employees As Cybersecurity Threat
  • Sanctions Resulting from Inadvertent Disclosure of Privileged Information

As always, I’ll be presenting the webcast, along with Tom O’Connor.  To register for it, click here – it’s not too late! Even if you can’t make it, go ahead and register to get a link to the slides and to the recording of the webcast (if you want to check it out later).  If you want to learn how key events and trends in 2019 can affect your eDiscovery practice in 2020, this webcast is for you!

So, what do you think?  Do you have FOMO (fear of missing out) on important info for 2019?  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.

This is What WON’T Be On Our 2019 eDiscovery Year in Review Webcast Tomorrow: eDiscovery Trends

Tomorrow, CloudNine will conduct the webcast 2019 eDiscovery Year in Review.  As 2019 has been a busy year, we have a lot of topics planned for tomorrow – everything from key case law decisions to important data privacy trends to whether lawyers are “failing” at cybersecurity and it will be a challenge to get through them all.  But, we still couldn’t cover everything – there was simply too much that happened this year to cover it all.  So, here are some notable events and trends that we covered on eDiscovery Daily this year that we won’t have time to discuss tomorrow.  Enjoy!

To Preserve Sanction Potential, Plaintiff Fights To NOT Have Claim Against Them Dismissed: Yes, you read that right. In DR Distrib., LLC v. 21 Century Smoking, Inc., Illinois District Judge Iain D. Johnston denied the defendants’ Motion for Leave to Amend their counterclaim to remove their own defamation counterclaim (Count VIII) against the plaintiffs – a move to which the plaintiffs objected, because it could eliminate their chance to pursue sanctions against the defendants for ESI spoliation.

Discovery Can’t Be Stayed While Motion to Dismiss is Considered, Court Says: In Udeen v. Subaru of America, Inc., New Jersey Magistrate Judge Joel Schneider denied the defendants’ request that all discovery be stayed until their Motion to Dismiss is decided, but, with the proviso that only limited and focused discovery on core issues would be permitted.

Firm IT Director Predicts “Carnage” in Legal Tech Consolidation: Not since Clubber Lang predicted “pain” in Rocky III has the state of legal tech consolidation been stated quite this way. Is that good news or bad news for consumers of legal tech software and services?

Is eDiscovery “Too Practical” to Offer as Part of Law School Curriculums?: We’ve certainly noted before how slow law schools are to provide eDiscovery education. But, are they slow to push for it because eDiscovery is “too practical”? At least one law school dean suggests that might be the case.

Another Case Where Intent to Deprive is Put in the Hands of the Jury: In Woods v. Scissons, Arizona Chief District Judge G. Murray Snow granted in part and denied in part the plaintiff’s motion for sanctions for spoliation of video footage of an arrest incident involving the plaintiff and the defendant (a police officer with the Prescott Police Department), ruling that non-party City of Prescott violated a duty to preserve evidence of the alleged incident, but that the question of intent should be submitted to the jury to determine appropriate sanctions.

Mary Mack and Kaylee Walstad acquire the EDRM from Duke Law: In a rare two-post day for us at eDiscovery Daily, we broke the news that Mary Mack and Kaylee Walstad, the former executive director and former vice president of client engagement, respectively, of The Association of Certified E-Discovery Specialists (ACEDS) announced that they have acquired the Electronic Discovery Reference Model (EDRM) from the Bolch Judicial Institute at Duke Law School.  Before that, ACEDS announced its new leadership as well.

Why Process in eDiscovery? Isn’t it “Review Ready”?: I’ve been asked a variation of this question for years. But, perhaps the best answer to this question lies in Craig Ball’s new primer – Processing in E-Discovery.

Despite Email from Defendants Instructing to Destroy Evidence, Court Declines Sanctions: In United States et al. v. Supervalu, Inc. et al., Illinois District Judge Richard H. Mills, despite an email produced by the defendants with instructions to their pharmacies to destroy evidence, denied the relators’ motion for sanctions, stating: “Upon reviewing the record, the Court is unable to conclude that Defendants acted in bad faith. If the evidence at trial shows otherwise and bad faith on the part of the Defendants is established, the Court can revisit the issue and consider one or both of the sanctions requested by the Relators or another appropriate sanction.”  {OK, we might mention this one}

Court Infers Bad Faith for Plaintiffs Use of Ephemeral Messaging App: In Herzig v. Arkansas Foundation for Medical Care, Inc., Arkansas District Judge P.K. Holmes, III indicated his belief that the use and “necessity of manually configuring [the messaging app] Signal to delete text communications” on the part of the plaintiffs was “intentional and done in bad faith”. However, Judge Holmes declined to consider appropriate sanctions, ruling that “in light of the [defendant’s] motion for summary judgment, Herzig and Martin’s case can and will be dismissed on the merits.”

Despite Email from Defendants Instructing to Destroy Evidence, Court Declines Sanctions: In United States et al. v. Supervalu, Inc. et al., Illinois District Judge Richard H. Mills, despite an email produced by the defendants with instructions to their pharmacies to destroy evidence, denied the relators’ motion for sanctions, stating: “Upon reviewing the record, the Court is unable to conclude that Defendants acted in bad faith. If the evidence at trial shows otherwise and bad faith on the part of the Defendants is established, the Court can revisit the issue and consider one or both of the sanctions requested by the Relators or another appropriate sanction.”  {OK, we might mention this one}

If this is what didn’t make the cut, tune in tomorrow (noon CST, 1:00pm EST, 10:00am PST) to see what did!

So, what do you think?  What do you think was most notable about eDiscovery in 2019?  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.