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Industry Trends

Less Than Half the States Still Have an Ethics Opinion Regarding Lawyer Cloud Usage: eDiscovery Best Practices

From time to time, we like to take a look back at stories we’ve covered in the past and provide an update.  About a year and a half ago, we published a blog post regarding the states that have published ethics opinions for lawyers regarding using and storing client data in the cloud.  At that time, only 14 states (less than one third) had published an ethics opinion regarding lawyer cloud usage.  Eighteen months later, only a few more states have done so.

The Legal Technology Resource Center (LTRC) of the American Bar Association’s (ABA) web site has a page titled Cloud Ethics Opinions Around the U.S., where the ABA provides an interactive map of the states (see the image of it above), with the states that have published ethics opinions shown in blue.  Oddly enough, Wisconsin is not shown in blue, though they appear to have published an ethics opinion earlier this year.  On the actual site, you can either click on the state to scroll down to it or manually scroll down to the state by name alphabetically (the list still has “Nevada” after “New Hampshire”, “New Jersey” and “New York” for some reason).  Anyway, according to the ABA, here are the states that have published ethics opinions – with links to each state’s opinion (note that several of the links on the ABA site are not working, so we found the correct links and are providing them below):

If you counted, we’re up to 20 total states with opinions – less than 40% of the total state jurisdictions (when you include DC).

As noted previously, the ABA site provides two tabs below the interactive map to highlight the opinions:

  • Quick Reference tab that identifies whether cloud usage for client data is permitted (so far, all states say “Yes”), the standard for use (currently all states with opinions enforce a reasonable care standard) and a bullet point list of specific requirements or recommendations;
  • Opinion Summaries tab that provides a brief summary for each of the opinions.

Hopefully, the next time we check, a majority of the states will have published their own opinions by then.

So, what do you think? Are you surprised that more states don’t have published cloud ethics opinions?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Even Lawyers Need Love Sometimes: eDiscovery Trends

If you work in the legal industry, you’ve probably heard this joke.  What do you call 5,000 lawyers at the bottom of the ocean?  A good start.  Get it?  It’s easy to joke about hating lawyers and some of us may not be joking.  But, even lawyers need love sometimes.  Believe it or not, today is National Love Your Lawyer Day.

As noted in this press release, National Love Your Lawyer Day was established in 2001 by the American Lawyers Public Image Association (ALPIA).  It’s a day in which lawyers and judges are celebrated for all the good they do, often thanklessly. On this day, the public is asked to let their favorite legal eagles know how much they love and appreciate them. “Call your attorney and say Happy Lawyer’s Day! or thanks for a doing a great job, or even send a gift, flowers or a card,” says Nader Anise, Executive Director of ALPIA. “Lawyers are always painted as the bad guy, even if they pull off some crazy Houdini-esque maneuvers to help their clients. We’re hoping this day will spark public interest in commending lawyers rather than condemning them.”  She didn’t say write a blog post about them, but that’s how I show my love.  :o)

And don’t even think about bad-mouthing lawyers on Love Your Lawyer Day – that is, unless you’re holding a wad of cash. Not only is lawyer bashing a big no-no and considered in poor taste, but anyone unable to bridle his tongue from verbally jabbing lawyers (late-night talk show hosts take note) is being asked to donate a $20 “fine” per joke to the charity of his choice.  Hope that joke in the intro of this post doesn’t count, I’m tapped out.  :o(

Anyway, those of us in the eDiscovery industry have been known to grumble from time to time about how the expertise of lawyers in eDiscovery continues to be lacking, despite ethics guidance from sources such as American Bar Association (ABA) Model Rule 1.1, which discusses competent representation to a client and includes a comment (Comment 8) which states that “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology”.  And, states are beginning to provide opinions regarding an attorney’s ethical duties in the handling of discovery of electronically stored information, as California did recently (Proposed Formal Opinion Interim No. 11-0004 has now become Formal Opinion No. 2015-193).

At CloudNine, we love lawyers every day, not just today.  To do our part in helping lawyers get up to speed on eDiscovery, we have, of course, provided this blog each day for over five years now to help educate lawyers (as well as others in our profession).  We have also begun offering a one-hour session (CLE approved in Texas) titled What Every Attorney Should Know about eDiscovery in 2015 (pretty soon, we’ll have to update the title).  We cover key terms to know, the EDRM model, Federal and State rules and resources, ethics considerations (the course includes a .25 ethics credit) and we cover key cases important to the evolution of electronic discovery.

We have conducted this CLE session for a few firms in the past few months and it has been very well received.  If your firm might be interested in this presentation (especially if you’re in the Houston area or somewhere in Texas), drop me a line at daustin@cloudnincloudnine.comm.  We’ll be happy to show you our love!

So, what do you think?  Are you looking for some CLE credit opportunities?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Do You Have Anything to Fear, This Year?: eDiscovery Horrors!

It’s that time of year, time for “Irish Jack” (you know, from the “O’Lantern” family) to make his annual appearance for Halloween.  Every year at this time, we try to “scare” you with tales of eDiscovery (and now, cybersecurity) horrors (because, after all, we’re an eDiscovery blog).  Let’s see how we do this year.  Do you have anything to fear, this year?

Did you know that you can be sanctioned for failing to preserve texts for litigation?  Here’s one example where it happened.

What about this?

International eDiscovery just became more difficult.  A 27-year-old Austrian law graduate may have brought an end to the 15 year old “Safe Harbor” agreement enabling transatlantic data transfers between the U.S. and European Union because of – wait for it – privacy concerns.

Or this?

When a text file doesn’t appear to match its corresponding image file or its corresponding original Excel native file, what do you do?  Here’s what you do.

How about this?

According to this study, two-thirds of law firms have no staff devoted to information security.  Yikes!

Or maybe this?

Did you hear about the firm that designated 141,525 of 148,636 produced documents as “highly confidential”?  The judge ordered them to re-review and re-designate those documents within ten days.  Even assessed a $25,000 fees award against their outside counsel to compensate the defendant for its efforts in reviewing the documents.

Finally, how about this?

This court ordered a mandatory adverse inference instruction against two attorney defendants so that the trier of fact could “draw the strongest possible adverse inference from defendants’ bad faith and intentional destruction, deletion and failure to produce relevant evidence”. The court also awarded attorney fees, and forwarded a copy of the order regarding one of the defendants to the New York State Committee on Professional Standards for attorneys.  Reading the case, it’s easy to understand why.

Scary, huh?  If the possibility of sanctions, issues with international discovery, data breaches or being ordered to re-do your work scares you, then the folks at eDiscovery Daily will do our best to provide useful information and best practices to enable you to relax and sleep soundly, even on Halloween!

Of course, if you seriously want to get into the spirit of Halloween, click here.  This will really terrify you!

What do you think?  Is there a particular eDiscovery issue that scares you?  Please share your comments and let us know if you’d like more information on a particular topic.

Happy Halloween!

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.

One in Three Companies Lacks an Information Security Policy, According to New Study: eDiscovery Trends

According to a new cybersecurity study, despite improvement in several areas, one in three companies still lacks policies for information security, data encryption and data classification.

As discussed in Inside Counsel (Majority of companies lack policies for info security), Protiviti, a global consulting firm which has served over 60 percent of Fortune 1000 and 35 percent of Fortune Global 500 companies has just released its 2015 IT Security and Privacy Survey, which aims to address whether organizations’ efforts are translating into effective policies to secure the “crown jewels” of organizations.

The survey, which gathered insights from 708 Chief Information Officers, Chief Information Security Officers, Chief Technology Officers, IT VPs and directors and other IT management professionals, assesses security and privacy policies, data governance, data retention and storage, data destruction policies, and third-party vendors and access, among other topics.  48 percent of respondents work for organizations mainly in North America with $1 billion or more in revenue.

Other key findings:

  • Only 28% of respondents indicated that their board of directors had a high engagement and level of understanding with respect to information security risks, down from 30% in 2014 and only slightly higher than “don’t know” respondents at 25%;
  • Only 66% of companies had a written information security policy (WISP) and slightly more than half of responding companies (55%) had a social media policy;
  • Despite considerable recent press coverage of cybersecurity and data breaches, only 23% of respondents indicated significantly more interest and focus on information security, down from 32% last year;
  • For those companies where the respondents did indicate a high engagement with respect to information security risks, they indicated a reasonably high level of confidence (0 on a scale of 1-10) in their organization to monitor, detect and escalate potential security incidents by a well-funded attacker (as opposed to 6.5 for those companies without high board engagement in information security).

This is just a sampling of some of the key findings.  Like last week’s survey that we covered on eDiscovery, this survey report is free!  The full survey is available here with a handy-dandy one-page infographic of the survey results also available here.

So, what do you think?  Do any of these results surprise you?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

New Survey of Corporate Counsel Finds Little Improvement in eDiscovery Capabilities Over the Last Year: eDiscovery Trends

According to the second annual Inside E-Discovery Survey by BDO Consulting, corporate organizations have made relatively little improvement in their eDiscovery technology capabilities over the past year, with the middle market falling the furthest behind.

The survey examined the opinions and insights of 140 senior in-house counsel at leading corporations throughout the US.  Some key findings include:

Adoption of New eDiscovery Technology:

  • With regard to adoption of new eDiscovery technology, 40 percent of respondents indicated that they use technology assisted review (TAR), 22 percent indicated that they use data visualization, 18 percent indicated that they use mobile document review, 12 percent indicated that they use expedited document review utilizing features such as voice commands and short keys and 12 percent indicated that they use up-to-the-minute project statistics and tracking via customized customer portals.

“Middle Market” Lagging:

  • 30 percent of organizations with revenues between $100 million and $1 billion (the “middle market”) have adopted technology-assisted review, compared to nearly half (47 percent) of organizations with revenues of $1 billion or above;
  • Only 15 percent of middle market organizations have adopted data visualization techniques, compared to 27 percent of larger organizations; and
  • 50 percent of middle market organizations indicated that they had adopted none of the five eDiscovery innovations/technological advances identified in the survey, compared to 38 percent of all organizations.

Biggest Challenges/Most Important Management Factors:

  • When asked what new eDiscovery issues would have the greatest impact on their organizations, the top three issues identified were: Volume, Variety and Velocity of Disparate Data (49 percent), Escalating Cost of eDiscovery (42 percent) and Regulatory Activity (40 percent);
  • In this order, respondents ranked Understanding universe of potential evidence early in case, Predicting total cost of eDiscovery early in case, Reducing eDiscovery review fees and Reducing eDiscovery processing fees as the top four most important factors affecting their management of eDiscovery in litigation.

Total eDiscovery Spending:

  • 39 percent of respondents indicated that their total spending on eDiscovery would increase in the next year, 56 percent indicated that spending would stay about the same and only 5 percent indicated that eDiscovery spending would decrease.

The full survey is available from BDO Consulting here; if you prefer less reading, an infographic of the survey results is also available here.  Feel free to check out our blog post about last year’s survey here.

So, what do you think?  Do any of these results surprise you?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

The Forecast is for Way More Clouds by 2018: eDiscovery Trends

According to a new Gartner report released earlier this month, by 2018, at least 30% of the data reviewed in eDiscovery will be stored in the cloud, up from 5% this year.

The report, titled “Critical Capabilities for E-Discovery Software”, identifies six critical capabilities and three use cases to provide detailed ranking on software products from 20 eDiscovery vendors.  Other key findings include:

  • Not surprisingly, there is a disconnection between IT and legal and, as a result, “[e]ach e-discovery case is often an isolated event and handled as a project”. This project-based approach means that “organizations invest in multiple tools and providers for their e-discovery technology needs”.
  • The eDiscovery market is still “relatively mature”, but “still faces a new wave of first-time buyers as litigation and investigation impact more and more nonregulated industries”.
  • The current market “lacks effective and cohesive technologies” to address new data sources (such as social media and other Web data) in collection and preservation.

The report recommends creating an eDiscovery stakeholder group which consists of IT, inside counsel, risk and security leaders to oversee projects, seek to identify eDiscovery tools and/or manual processes now in use by both IT and legal and consolidate solutions where overlapping capabilities may exist.

The Critical Capabilities document uses the same criteria for vendor inclusion as the “Magic Quadrant for E-Discovery Software” report released by Gartner earlier this year (and covered by us here).  The report ranks the vendors for each of the three use cases, provides a table showing the product score for each vendor for both the three use cases and six critical capabilities and also provides a written summary of each vendor’s capabilities.

To learn more about the report and purchase a copy, click here.

So, what do you think? Are you surprised by the trend toward cloud-based eDiscovery review?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily 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 Long Time Litigation Support Professional Gets a Deserved Recognition: eDiscovery Trends

When people ask me how long I’ve been working in the litigation support/eDiscovery industry, I generally tell them “25+ years” (after 25, I just stopped counting).  But, there is someone who has been a litigation support professional for over 40(!) years, who recently received a well-deserved recognition for her work over the years.  Her name is Robin Athlyn Thompson.

Earlier this month, Robin, who is VP of Marketing at BIA, received the first ever Lifetime Achievement Award by the Association of Certified eDiscovery Specialists (ACEDS).  In the press release announcing her award, Susan Kavanagh, Director of Client & Member Services for ACEDS was quoted as saying “No one can dispute Robin’s fiercely loyal commitment to innovation, creativity and the continued progression of eDiscovery, which is why she is the perfect recipient for this first ever ACEDS Lifetime Achievement Award.”

Robin was nominated for the award by her peers who noted, among other things, her service to the profession, her dedication to multiple industry associations, and her never ending drive to provide one of the best educational programs available, including the industry’s first cyclical education series.

In the past year, Robin also received the Silver Lifetime Achievement Award for her service to the eDiscovery, Information Governance and Records Management communities from The Stevies, a group which honors women in business.

An interview with Robin is available on the ACEDS site, where Robin talks about the award and also her thoughts about where the industry is heading.

Despite the serious look in the picture above, every time I’ve been around Robin, she has been smiling and is very personable and delightful to talk to, and I don’t think the award could have gone to a better person.  Congratulations, Robin!

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

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

What Do Daegis, Credence Corporation and Elysium Digital All Have in Common?: eDiscovery Trends

All three of these eDiscovery providers have been acquired within the last 2 1/2 months.  Evolve Discovery?  Ditto.  Believe it or not, there have been a whopping 35 mergers, acquisitions and investments in the eDiscovery industry so far this year!  That’s busy!

How do I know that?  Rob Robinson to the rescue!  When it comes to compilations of information about eDiscovery, no one does it better than Rob.  His Complex Discovery site keeps a running list of mergers, acquisitions and investments in the eDiscovery industry and goes all the way back to 2001, when LexisNexis acquired CourtLink – that was even before Kroll merged with Ontrack!  He calls it a “non-comprehensive overview”, but there are 242 transactions, so it’s got a lot of useful information.

Rob’s list not only keeps you abreast of changes in the industry, it’s a great “way back” machine for those who have been in the industry for a number of years and remember some of the providers who were acquired and no longer exist as their old names.  In a few weeks, he will have to change the title of the page as it will be a full 14 years of eDiscovery merger, acquisition and investment that he is providing on his site.

We’ve covered his merger and acquisition list at least a couple of times before – here and here.  It’s a useful resource to check periodically to get a sense of where the industry is heading.  And, if you want to know who is investing in eDiscovery companies, Rob has that list too.  :o)

Speaking of “Ditto”, they’ve been acquired too, by Advanced Discovery.  So, even Ditto has been ditto’d!

So, what do you think?  Are you surprised by the number of eDiscovery transactions this year?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

ICYMI Weekly Summary Newsletter for the Week Ending October 10, 2015

Here are your ICYMI (In Case You Missed It) weekly summaries of the posts for this week (with links to the full post on our blog site) for you to check out:

Defendant Ordered to Produce Emails Between Non-Attorney Employees That Were Deemed Privileged: eDiscovery Case Law – In Cicon v. State Farm Mutual Auto Ins. Co., Pennsylvania District Judge Richard P. Conaboy denied the plaintiff’s request for the defendant to produce attorney-client communications that occurred before the filing of the complaint, but granted his request regarding communications between non-attorney employees before the plaintiff’s counsel sent a letter threatening litigation, ordering the defendant to produce those emails, while allowing the defendant to redact explicit discussion of an attorney’s advice.

Europe’s Highest Court Strikes Down 15 Year Old Safe Harbor Agreement: eDiscovery Trends – International eDiscovery just became more difficult. A 27-year-old Austrian law graduate may have brought an end to a 15 year old agreement enabling transatlantic data transfers between the U.S. and European Union because of – wait for it – privacy concerns.

Samsung Doesn’t Have to Write a Check After All…Yet: eDiscovery Case Law – A couple of weeks ago, we revisited the Apple v. Samsung case, which we covered so much last year, it had its own category in our annual case law review. On September 18, U.S. District Court Judge Lucy Koh granted Apple’s motion for partial final judgment in the case that Apple lodged against Samsung in 2011, seemingly clearing the way for Apple to collect $548 million in damages from Samsung. But, on Friday, Samsung received an emergency stay on that order.

EDRM Has a Twist on its Fall Workshop (and a Webinar Today!): eDiscovery Trends – Around this time of year, EDRM members (like me) expect to convene for our semi-annual visit to St. Paul for the mid-year meeting. This year, EDRM has a twist on the mid-year meeting, which they’re now calling the “fall workshop”. There was also a webinar on Tuesday!

Redactions Aren’t Always as Straightforward as You Think: eDiscovery Best Practices – On the surface, it may seem easy enough to redact a document during eDiscovery review to obscure confidential or privileged information. You may think that all you need to do is draw a black box over the affected text, but there’s actually a lot more to consider in order to ensure that you don’t inadvertently produce information that was intended to be redacted. Here are some redaction failures and how to avoid them.

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

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

EDRM Has a Twist on its Fall Workshop (and a Webinar Today!): eDiscovery Trends

Around this time of year, EDRM members (like me) expect to convene for our semi-annual visit to St. Paul for the mid-year meeting.  This year, EDRM has a twist on the mid-year meeting, which they’re now calling the “fall workshop”.  There’s also a webinar today!

As noted on their site, this year’s EDRM Fall Meeting will be hosted at Relativity Fest in Chicago (held at The Hilton Chicago in Chicago, Illinois) instead of the usual soirée in St. Paul.  If you’re an EDRM member, you can join us next week on Monday, October 12 for our keynote and workgroup, and on Tuesday, October 13 for two educational sessions.

On Monday, the workgroup will be conducted from 11:00 am to 5:45 pm and will consist of project updates, planning for projects and initiatives for the next six months and work on those projects and initiatives (to the extent time permits).

On Tuesday, for the first time ever at a workshop meeting, EDRM will be holding two educational sessions featuring EDRM members and materials.  They are:

  • Using the eMSAT-1 to Evaluate Internal Processes and Maximize Review Proficiency: This panel will provide strategies for implementing the eMSAT-1, and using the results to improve efficiencies and profits. The session will also focus on how the eMSAT-1 results can be used to design protocols for processing, review and analysis that allow companies to maximize use of review software. Tuesday from 9:00-10:00am.
  • Strategies for Calculating: Using the EDRM’s Data Calculator and Other Budgeting Tools to Estimate Costs: This panel will focus on various ways to approach budgeting E-Discovery projects. The panelists will share ideas and best practices regarding budgeting. They will show how using tools like the EDRM’s recently released Data Calculator can help to make once daunting budgeting a breeze. Tuesday from 10:15-11:15am.

As an EDRM member, you can attend the EDRM activities with the EDRM Pass for $550 (which includes Relativity Fest’s Sunday night reception) or the Relativity Fest Pass for $1,150, which gives you access to the EDRM activities and ALL of the Relativity Fest activities too.

Speaking of EDRM, they also have a webinar today – “A Practical Approach to Your in-house eDiscovery Collections,” – from 1:00 to 2:00 pm Central, sponsored by Pinpoint Labs.  This webinar will include a demonstration of how internal corporate IT managers, security professionals, or litigation support personnel can create in-house E-Discovery collections using Pinpoint Labs Harvester software. Learn how to design an automated self-collection kit for remote custodians, or deploy Enterprise wide stealth jobs that target discoverable files and emails for attorney review.

To register for today’s webinar, click here.  If you can’t make it today, but want to catch the recording of the webinar (or other past EDRM webinars), click here to see our previous blog post about EDRM webinars.

Not an EDRM member?  Why the hell not?!?  :o)  Here’s information on the cost to join – depending on who you are, it might be free!

So, what do you think?  Are you going to the EDRM Fall workshop?  Please share any comments you might have or if you’d like to know more about a particular topic.

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