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Here’s a Webcast to Learn How to Think Like a Millennial When Addressing eDiscovery Needs: eDiscovery Webcasts

As we learned in Tom O’Connor’s recent five part blog series, millennials, with their focus on mobile devices and social media sites, may be changing eDiscovery (depending on your point of view).  Regardless, eDiscovery is changing and millennials may be a BIG part of that change.  Here’s a webcast that will help you think like a millennial to address your eDiscovery needs.

On Wednesday, September 18th at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Thinking Like a Millennial in eDiscovery.  This CLE-approved* webcast session will discuss how evolving technology trends are impacting eDiscovery today and how to think like a millennial to stay on top of those developing trends. Key topics include:

  • Understanding Millennials and How They Differ from Previous Generations
  • Drivers for Millennials’ Thinking Today
  • How Litigation Support and eDiscovery Has Evolved Over the Years
  • Challenges Posed by BIG Data and Variety of Data Sources
  • Ethical Duties and Rules for Understanding Technology
  • Impact of Millennials on Legal Technology and eDiscovery
  • Your Clients May Have More ESI Than You Think
  • Recommendations for Addressing Today and Future Technology Challenges

As always, I’ll be presenting the webcast, along with Tom O’Connor.  To register for it, click here.  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 the habits of millennials will impact your eDiscovery processes, this is the webcast for you!

So, what do you think?  Are you concerned about how the habits of millennials will impact your eDiscovery processes?  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.

Mobile Phone Spoliation Ends Not One, But Two Cases for Kevin Spacey: eDiscovery Case News

If you keep track of Hollywood news, you probably already know this story.  But, as David Horrigan discussed in an article last week, you may not know all the details or what it might mean for future cases.

In Legaltech® News (Commonwealth v. Fowler: What the Kevin Spacey Cases Mean for E-Discovery and the Law), David discusses the case Commonwealth v. Fowler, a criminal prosecution, and a related civil action, Little v. Fowler, stem from sexual assault allegations against the actor Kevin Spacey (whose legal name is Kevin Spacey Fowler).

In allegations that made headlines around the world two years later, an 18-year-old employee of a Nantucket restaurant claimed that, in the summer of 2016, Spacey plied him with alcohol and groped him at the restaurant. Of course, Spacey’s lawyers had a different take, arguing the encounter was a “mutual and consensual flirtation” and that the employee had told Spacey he was 23.  And, also of course, Spacey’s lawyers demanded discovery of the employee’s mobile phone, seeking text, video and Snapchat data from the date of the incident to the date of the discovery request.

Text messages between the employee and his girlfriend – purported to have been sent at the time of the alleged incident – had already been entered into the court record via screenshots. They included descriptions of the alleged incident by the employee and text responses from his girlfriend, including some with multiple emojis.  However, Spacey’s defense counsel argued that some of the text messages had been edited and the employee’s mother, a former Boston television news reporter, admitted that she had deleted some data (which she claimed was unrelated to the alleged incident) from the phone before turning it over to law enforcement.

But, that wasn’t the worst issue related to the phone.  The phone itself disappeared.  Law enforcement notes indicated the mobile phone had been returned to the employee’s family, but the family’s attorney told the court, “My clients do not recall ever receiving the phone.”  And, although the employee’s family said the phone had been backed up, Spacey’s counsel argued that wasn’t good enough and that they were entitled to the phone itself.  When Spacey’s counsel asked the employee whether he knew altering evidence was a crime, the employee invoked his Fifth Amendment protection against self-incrimination, which resulted in the charges being dropped in the criminal case (after the civil case had already been dropped a few days before).  No phone = two cases closed.

In his article, David notes several interesting considerations from the cases, ranging from discovery of mobile devices to the use of emojis to the significance of social media (with a Snapchat video being important in the case as well).  Probably his most notable observation was whether the loss of the phone would have thrown out the evidence in the civil case with amended FRCP Rule 37(e) providing that sanctions were available when evidence “cannot be restored or replaced through additional discovery.”  Those phone backups might have led to a different result in the civil case.

I already noted that in our webcast last week (Key eDiscovery Case Law Review for the First Half of 2019), Tom O’Connor and I discussed several cases (including this one, this one and this one) where spoliation and sanctions associated with smartphone ESI were the key issue being addressed.  Chalk up another one.

BTW, speaking of David: As I noted before, I am speaking at ILTACON in a couple of weeks as part of ILTACON’s brand new Litigation Support Day, which features a DAY of SPARK (Short, Provocative, Action-oriented, Realistic, and Knowledgeable) talks by leaders in the industry.  I will be participating in Session One – Litigation Support State of the Union from 9:00-10:30am that day (my talk is slated for approximately 9:35). I will be speaking about legal trends in the industry, with David moderating, so that means recent case law trends that should be interesting.  Do you think mobile device discovery will be one of those trends?  If you’re planning to be at ILTACON, come find out!

So, what do you think?  Would the phone backups have enabled the civil case to continue?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Image Copyright © Netflix

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.

Here’s a Webinar TODAY to Learn about Preserving and Analyzing Smartphone Data: eDiscovery Best Practices

In our webcast last week (Key eDiscovery Case Law Review for the First Half of 2019), Tom O’Connor and I discussed several cases (including this one, this one and this one, involving the late musician Prince) where spoliation and sanctions associated with smartphone ESI were the key issue being addressed.  Let’s face it, discoverability of mobile devices has become a standard consideration in litigation these days.  But, how can you ensure you’re properly preserving the ESI on your smartphone and how can you get the most out of the data it contains?  Here’s a webinar TODAY that discusses that very topic!

And, here’s a spoiler alert!  It’s not even a CloudNine webinar.  This webinar is being hosted by ESI Analyst and Chorus Consulting.  Preservation & Analysis of Smartphone Data for Today’s Connected World will be presented at 2pm ET today (1pm CT, 11am PT).  Topics addressed include:

  • How to direct your client to avoid spoliation
  • Requirements to preserve and collect cell phone data
  • When to call a forensic expert
  • Best ways to analyze data from a cell phone:
    • Text/SMS/MMS including media
    • Chat applications
    • Call logs
    • Geolocation
  • Connecting those elements to create a timeline and tell the story

The webinar will be co-presented by:

  • John Myers of Chorus Consulting, who has been a partner with CloudNine for several years and has over 25 years of experience assisting clients in eDiscovery and forensic collection. John testified in this case having to do with the late Jimi Hendrix (which makes two dead rock stars mentioned in this post and ties my personal record, I think).
  • Trent Livingston of ESI Analyst, who has provided consulting and expert testimony regarding data, automation and analytics over a two-decade career and (with his team) has developed the data visualization and investigation technology platform called (oddly enough) ESI Analyst. Trent was one of the speakers at our NineForum TED Talk series at LegalTech this year.

You can register for the webinar here.  Even if you can’t make it today (but still want to check it out), register and you’ll receive a link to the webinar afterward.  If you want to learn some best practices for smartphone data preservation and analysis from two smart guys uniquely qualified to discuss those topics, check it out!

So, what do you think?  How often does your organization have to address mobile device discovery in litigation?  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.

Court Recommends Finding of Intent to Deprive for Defendant’s Lost Text Messages: eDiscovery Case Law

Shark Week on the Discovery Channel continues, which means Case Week on the eDiscovery Channel (a.k.a., eDiscovery Daily) continues as well.  Today’s case opinion comes from March and resulted in a different opinion for failure to preserve text messages than this case we covered last week.  Enjoy!

In NuVasive, Inc. v. Kormanis, No. 1:18CV282 (M.D.N.C. Mar. 13, 2019), North Carolina Magistrate Judge L. Patrick Auld recommended that, “because the record supports but does not compel a ‘finding that [Defendant Kormanis] acted with the intent to deprive [Plaintiff] of the [lost text messages’] use in the litigation, the Court submit that issue to the ‘jury, [with] the [C]ourt’s instruction[s] mak[ing] clear that the jury may infer from the loss of the [text messages] that [they were] unfavorable to [Defendant Kormanis] only if the jury first finds that [he] acted with the intent to deprive [Plaintiff] of the[ir] use in the litigation’”.

Case Background

In this case filed against a former employee over breach of contract for promoting and selling a competitor’s products within his former territory, the plaintiff notified Defendant Kormanis in March 2018 (through counsel) of its “concern[ ] that [his] new position with Alphatech will lead to … violation[s] of his contractual obligations with Ino[S]pine” and advised him “to refrain from the destruction of relevant evidence … including … texts … and to take steps to preserve all such information”.  After the case was filed, the defendant wrote in response to the plaintiff’s production requests:

“As for text messages, due to space limitations on his iPhone, Defendant Kormanis only is able to keep data on his device from the previous 30 days. In order to comply with the litigation hold letter, Defendant Kormanis backs up his iPhone to his MacBook Air so that all messages are preserved. However, at this time, Defendant Kormanis has not been able to retrieve said messages from his personal devices. Once these communications are retrieved, they will be produced.”  The defendant ultimately produced text messages on October 5, 2018, but there were no text messages produced prior to August 5, 2018.  The defendant indicated that his vendor was unable to retrieve earlier text messages from his devices, but he declined to allow the plaintiff’s vendor to examine the devices.

In his subsequent affidavit and deposition, it became clear that the defendant failed to turn off the 30-day automatic delete function on his iPhone, leading to the loss of text messages after the defendant was advised of his duty to preserve them.  Despite the defendant’s argument that “[t]he Court should deny [the instant] Motion because [Plaintiff] has failed to demonstrate that any of the allegedly spoliated text messages … would be relevant to this action”, Verizon records demonstrated that the defendant had regular text message communications with key parties in the case during that period where text messages were lost.

Judge’s Ruling

Judge Auld agreed with the plaintiff that “the relevance of these [text messages] is evident” and also stated: “Nor does any material dispute remain as to whether the loss of relevant text messages resulted from Defendant Kormanis’s failure to take reasonable steps to preserve them.”  Judge Auld also noted that failure to follow the “simple steps” of suspending the auto-delete function on his phone and utilizing “relatively simple options to ensure that [his] text messages were backed up” was “sufficient to show that Defendant [Kormanis] acted unreasonably.”

As a result, Judge Auld granted the Plaintiff’s Motion for Imposition of Sanctions for Spoliation of Evidence in part.  Judge Auld gave the plaintiff additional time to depose and subpoena text messages from a key Alphatech contact beyond the discovery deadline and ordered Defendant Kormanis to pay plaintiff’s fees/expenses associated with that effort and also all fees/expenses associated with filing, briefing and arguing the Instant Motion.  He also issued the following recommendations:

“IT IS RECOMMENDED that the Court defer until trial the decision of whether other “serious measures are necessary to cure prejudice [from the loss of text messages], such as forbidding [Defendant Kormanis] from putting on certain evidence, permitting the parties to present evidence and argument to the jury regarding the loss of information, or giving the jury instructions to assist in its evaluation of such evidence or argument, other than instructions [that it may or must presume the lost text messages were unfavorable to Defendant Kormanis],” Fed. R. Civ. P. 37 advisory comm.’s note, 2015 amend., subdiv. (e)(1).

IT IS FURTHER RECOMMENDED that, because the record supports but does not compel a “finding that [Defendant Kormanis] acted with the intent to deprive [Plaintiff] of the [lost text messages’] use in the litigation,” Fed. R. Civ. P. 37(e)(2), the Court submit that issue to the “jury, [with] the [C]ourt’s instruction[s] mak[ing] clear that the jury may infer from the loss of the [text messages] that [they were] unfavorable to [Defendant Kormanis] only if the jury first finds that [he] acted with the intent to deprive [Plaintiff] of the[ir] use in the litigation,” Fed. R. Civ. P. 37 advisory comm.’s note, 2015 amend., subdiv. (e)(2).”

So, what do you think?  Did the spoliation warrant a possible adverse inference instruction?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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

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

No Proof of Intent to Deprive Means No Adverse Inference Sanction: eDiscovery Case Law

We’re catching up on a few cases from earlier this year in preparation for our Key eDiscovery Case Law Review for First Half of 2019 webcast next Wednesday.  Here is an interesting case ruling from April.

In DriveTime Car Sales Company, LLC v. Pettigrew, No.: 2:17-cv-371 (S.D. Ohio Apr. 18, 2019), Judge George C. Smith granted in part and denied in part the plaintiff’s motion for spoliation sanctions against defendant Pauley Motor, denying the plaintiff’s request for an adverse inference sanction by ruling that “DriveTime has not sufficiently demonstrated that Pauley Motor acted with the requisite intent” when Bruce Pauley failed to take reasonable steps to preserve text messages when he switched to a different phone.  Judge Smith did “order curative measures under Rule 37(e)(1)”, allowing the plaintiff to “introduce evidence at trial, if it wishes, of the litigation hold letter and Pauley Motor’s subsequent failure to preserve the text messages.”

Case Background

In this case where the plaintiff alleged the defendants were conspiring to purchase vehicles at above market rates from Pauley Motor, the plaintiff filed a motion for spoliation sanctions against Pauley Motor.  During discovery, Pauley Motor first stated in its interrogatory responses that no text messages between Pauley Motor representatives and defendant Pettigrew existed.  However, in his 30(b)(6) deposition, Bruce Pauley stated that he had exchanged text messages with Pettigrew, but he was ultimately unable to produce the content of the text messages because he had obtained a new phone and had not preserved the contents of his previous phone, despite being put on notice to do so in November of 2016 by a litigation hold letter issued by the plaintiff’s counsel.  As a result, the plaintiff requested that the Court impose a mandatory adverse inference that the content of the text messages was unfavorable to Pauley Motor.

Judge’s Ruling

In considering the motion, Judge Smith stated that “Pauley Motor does not dispute that it had an obligation to preserve text messages between its representatives and Pettigrew or that it failed to take reasonable steps to preserve them…DriveTime has also established that the text messages cannot be restored or replaced through additional discovery, because neither Pettigrew nor the wireless carriers for Pauley Motor’s representatives have access to them either…Thus, in order to obtain the mandatory adverse inference it seeks under Rule 37(e)(2), the only additional requirement under the Rule is that Pauley Motor acted with the intent to deprive DriveTime of the text messages’ use in the litigation when it failed to preserve them.”

However, Judge Smith also said: “Although Bruce Pauley failed to take reasonable steps to preserve the text messages when he switched to a different phone, there is no evidence that he did so intentionally beyond DriveTime’s speculation. This is not sufficient to impose a mandatory adverse inference under Rule 37(e)(2).”  As a result, Judge Smith found that “DriveTime has not sufficiently demonstrated that Pauley Motor acted with the requisite intent.”

But, Judge Smith noted that “less severe sanctions are available to DriveTime under Rule 37(e)(1) upon a finding of prejudice.”  As a result, he stated that “the Court will order curative measures under Rule 37(e)(1)… In this case, the Court finds it appropriate to order that DriveTime will be permitted to introduce evidence at trial, if it wishes, of the litigation hold letter and Pauley Motor’s subsequent failure to preserve the text messages. DriveTime may argue for whatever inference it hopes the jury will draw. Pauley Motor may present its own admissible evidence and argue to the jury that they should not draw any inference from Pauley Motor’s conduct.”

So, what do you think?  Did the judge go far enough or should the failure to preserve the evidence have been considered intent to deprive?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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

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

Thinking Like a Millennial: How Millennials are Changing Discovery, Part Five

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys, which we covered as part of a webcast on June 26.  Now, Tom has written another terrific overview regarding the impact of millennials on eDiscovery titled Thinking Like a Millennial: How Millennials are Changing Discovery that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into five parts, so we’ll cover each part separately.  Part one was last Tuesday, part two was last Friday, part three was Monday and part four was Wednesday, here is the fifth and final part.

Conclusions and Recommendations

The favorite tools of millennials are in use now.  We know them. We are trying to adjust to them. But perhaps the problem is not the tools. We must acknowledge the cultural shift in work flows and communication methods influenced by millennials as more employees work remotely, including from home, than ever before. Then we must be prepared to design eDiscovery tools to deal with these changes.

Millennials will quickly and easily embrace new apps. They will employ collaboration and innovation to yield more effective workflows. Responding to those changes requires proactive planning not reactive responses.

Companies need to design and establish data retention policies and deletion protocols around these new tools. Engage custodians now to understand how they are communicating and collaborating at work. Understand that overlooked applications which you may consider informal mobile apps can, in reality, be the main form of communication for many employees.

Service providers need to develop new strategies and processes for collecting data from these new tools.  These new tools may be will be less uniform and more diversified in their deployment and this implementation may vary widely within departments of the company. This will require extensive collaboration with IT departments in order to understand how their tools are implements

Data growth is expanding at an enormous rate. In 2018, DOMO reported that “over 2.5 quintillion bytes of data were created every single day and it estimated that by 2020, 1.7MB of data will be created every second for every person on earth”.  And, a recent report in the Visual Capitalist found the following:

  • 500 million tweets are sent daily
  • 294 billion emails are sent daily
  • 4 petabytes of data are created on Facebook daily
  • 4 terabytes of data are created from each connected car daily
  • 65 billion messages are sent on WhatsApp daily
  • 5 billion searches are made every day

By 2025, it’s estimated that 463 exabytes of data will be created each day globally – that’s the equivalent of 212,765,957 DVDs per day!

Source: Visual Capitalist

As technology advances, millennials will continue to blur the lines between personal and professional communications and the demand for faster and better tools and applications that are integrated with both work applications and personal social media will continue to create more and more data. This combination will place even more stress on the eDiscovery components of preservation and collection.

Companies and law firms will need to proactively identify and address all these new data sources and combinations by designing new internal policies while working with vendors to develop new collection tools.  Getting ahead of the technology curve is the best way to limit exposure to litigation risks and reduce the inevitable costs related to eDiscovery.

So, what do you think?  Have the habits of millennials impacted eDiscovery for your organization?  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.

Thinking Like a Millennial: How Millennials are Changing Discovery, Part Three

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys, which we covered as part of a webcast on June 26.  Now, Tom has written another terrific overview regarding the impact of millennials on eDiscovery titled Thinking Like a Millennial: How Millennials are Changing Discovery that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into five parts, so we’ll cover each part separately.  Part one was last Tuesday, part two was last Friday, here is the third part.

Drivers for Millennials’ Thinking Today

Voting Studies

So, where do we learn more about this new generation? Most of the information we have on millennials comes from studies of their voting patterns and buying habits. In the first area the general assumption is that they are social loners who don’t vote. An estimated 31% of eligible people ages 18 to 29 voted in the 2018 midterms, according to the Center for Information and Research on Civic Learning and Engagement (CIRCLE). This exceeds participation from the same age group in the 2014 midterms by about 10 percentage points but is still far below the number that voted in the 2016 presidential election, when 51% of eligible millennial voters cast a ballot.

In the 2018 midterm, a poll released the week of the election by the Institute of Politics at Harvard Kennedy School, found four out of 10 adults under 30 said they would “definitely vote” and in Texas and Georgia, early turnout by 18-29 year olds was up by a whopping 500 percent in the days before the election, according to The Independent.

But the fact is that millennial voting rates have never exceeded 50%, even in 2018. According to a national poll last fall, just two-in-ten of America’s young adults consider themselves “politically engaged and active.” So far, only  41% of millennials ages 18-29 are certain they’ll vote.

But are they really isolated social loners intent only on gaming and texting? Why such low turnout when in the 1800’s 80% turnout was commonplace?

Maybe the reason isn’t the generation but the society. In the mid-1800s, transcendentalist Margaret Fuller envisioned the individualistic reality millennials now inhabit. Fuller believed that “American culture was best served by the influence of the self-cultivated individual.” If individuals prioritized themselves, America would fulfill its destiny as a truly democratic nation.

But as those ideal became reality, as individualism increases, each successive generation since World War II participates less in civic duties and governmental expectations. And so to the they are political, millennials are moved by measures championing personal choice—not society, country or planet. Only half of millennials see themselves as patriotic, and less than a third consider themselves to be environmentalists. Just 19% of millennials see themselves as generally trusting of others, compared to 40% of boomers. But we support gay and interracial marriage, abortion and marijuana legalization substantially—and sometimes exponentially—more than other generations.

Political engagement has been replaced by more direct social engagement  A 2014 report on the impact of millennials revealed 87% donated money to an organization that supported a cause they supported.

Millennials do have a desire to make an impact for a good cause, they simply don’t see voting as the best mean to accomplish that.

Millennials in 2016 were significantly less likely to vote or try to influence others vote than were the ’80s generation in the 1987 survey, or the first wave of postwar baby boomers in 1967. BUT millennials display about the same level of political interest as the youngest generation did in 1987, and millennials contact local government and work with others in the community at essentially the same rates as did youth in the earlier surveys.

So, if the 1980s generation that was once considered apathetic is now, in middle age, actually more politically active than earlier generations were at that same stage in their lives then we can expect the same for millennials. The “participation gap”, which actually just appears under closer scrutiny, to be a reluctance to vote, might just indicate that “kids these days” – the millennials – just won’t participate more actively until later in life.

What does that mean for technology usage? That’s where marketing studies come in.

Marketing

We all “know” that millennials are mobile consumers tapping their mobile devices for hours each day and we’ve all seen or heard of research that indicates they spend more time interacting with their phones than other people but at the same time have short attention spans.

This may be because, as mentioned above, millennials appreciate tech as something they saw grow up while they did. They’ve seen numerous networks and devices come and go. Instagram, Pinterest, Snapchat and Tumblr, MySpace, Vine, Google+.

Given their comfort level with technology, they tend to favor services that offer practicality, utility, convenience and even fun. In short, millennials value technology when it delivers value.

Common characteristics of millennials that marketing studies have revealed include that they:

  1. Will Embrace New Technology
  2. Want to Create Opportunities for Good Causes
  3. Want Product to Support their Creativitity
  4. Want Innovation
  5. Want Product to “Speak their Language”
  6. Want Flexibility
  7. Want Personable Company
  8. Want Passionate Company
  9. Want to Be Valued as “Real”
  10. Want to Be Recognized

What we see in these studies is that the perception as being the next “me generation” is really a focus on personal rather than social validation.  Millennials are the largest single generation in history and have become the largest influence in social and technological habits.  They value utility, effectiveness and relationship over price and are undaunted by technological innovation.

We’ll publish Part 4 – Impact of Millennials on Legal Technology and eDiscovery – on Wednesday.

So, what do you think?  Have the habits of millennials impacted eDiscovery for your organization?  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.

Thinking Like a Millennial: How Millennials are Changing Discovery, Part Two

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys, which we covered as part of a webcast on June 26.  Now, Tom has written another terrific overview regarding the impact of millennials on eDiscovery titled Thinking Like a Millennial: How Millennials are Changing Discovery that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into five parts, so we’ll cover each part separately.  Part one was Tuesday, here is the second part.

Understanding Millennials and How They Differ from Previous Generations

Well first, let’s ask, what exactly is a millennial? Are they really, as often stated, misunderstood job jumpers who have taken control of both the workplace and economy?

What exactly is the generational breakdown? Generational analysis is difficult and often shifting and it takes time for popular and expert consensus to develop precise breakdowns, but the Pew Research Center assesses such demographics and has come up with the following chart:

  • The Silent Generation: Born 1928-1945 (74-91 years old)
  • Baby Boomers: Born 1946-1964 (55-73 years old)
  • Generation X: Born 1965-1980 (39-54 years old)
  • Millennials: Born 1981-1996 (23-38 years old)
  • Generation Z (Post Millennials): born 1997 or later (up to 22 years old)

Millennials are expected to overtake Boomers in population in 2019 as their numbers swell to 73 million and Boomers decline to 72 million while Gen X is projected to pass the Boomers in population by 2028.

The Millennial generation growth is not just from a growing birth rate. Census figures show that young immigrants also expand its ranks. Meanwhile, boomers are aging and their numbers shrinking in size as the number of deaths among them exceeds the number of older immigrants arriving in the country.

What does this mean in terms of technical usage trends? The Millennial segment may not be “digital natives” to the degree of the Gen Z population but they have grown up during the digital revolution.  They’re tech savvy and saw firsthand the explosion in the use of mobile phones, social media and Internet-based information at your fingertips.

Compare that to my generation. As a bona fide boomer, I was born in 1950 in upstate Vermont. I grew up listening to a radio for my entertainment and getting my news from a paper. When TV entered my life, it came on at 4PM, went off at 11PM and consisted of two Lo VHF channels. One of which was from Montreal. At least I didn’t need to speak French to watch hockey.

Then came transistor radios. Portable data! I listened to the first Mercury launch, to the Beatles sing I Want to Hold Your Hand. To Cassius Clay beat Sonny Liston, Bill Mazeroski homer to win the World Series in the 9th. In my own room.

Next up was a car. AM radio. Better than a transistor. But I was a teenage and on AM radio there was a nothin’ goin’ down at all. Then one morning I found a New York station and I couldn’t believe what I heard at all. I started shakin’ to that fine, fine music and my life was saved by rock ‘n’ roll. FM baby. And the next thing I know I was rolling down the window and letting the wind blow back my hair on the New Jersey Turnpike in the wee, wee hours.

8 tracks, cassette players, the Internet, IPods: all of it one big wow. But technology does not present a “wow” factor for millennials and Gen Z. Rather new technology products and apps are just another channel in the cable network world of 500 channels that is their lives. A new channel appears, they try it. If they like it, they listen more. If not, switch the channel, flip the switch, try something new.

We’ll publish Part 3 – Drivers for Millennials’ Thinking Today – next Monday.

So, what do you think?  Have the habits of millennials impacted eDiscovery for your organization?  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.

Thinking Like a Millennial: How Millennials are Changing Discovery

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys, which we covered as part of a webcast on June 26.  Now, Tom has written another terrific overview regarding the impact of millennials on eDiscovery titled Thinking Like a Millennial: How Millennials are Changing Discovery that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into five parts, so we’ll cover each part separately.  Here’s the first part.

Introduction

I was asked to tackle this topic after a question in a recent webinar. It seems to imply that millennials are or will be using some forms of technology that will present significant challenges to ESI preservation and production as the member of that social group enter the work force.

Paul Gentile, Senior Director, Product Marketing at LogMeIn (a.k.a., GoToMeeting) had this observation regarding millennials impact on the workforce:

The major shifts taking place in the modern workforce—remote working, geographically distributed teams, the growing popularity of online collaboration tools—can be attributed to the millennial generation’s preferences that flow into their careers.

But is that really accurate? Haven’t those changes already taken place? Aren’t millennials already part of the work force and using the same tools as the rest of us? Is there some rising tide of millennial software that will befuddle legal technologists in the coming years or are we all on the same technology flight, just some of us are sitting in first class chatting on our tablets on free Wi-Fi while the people in steerage are struggling to sign in to the Boingo signal so they can pay an outrageous fee for three hours of horribly slow connectivity?

In this paper, we will take a look at millennials, what motivates them and how they differ from previous generations and what the impact of millennials is on legal technology and eDiscovery, as follows:

  1. Understanding Millennials and How They Differ from Previous Generations
  2. Drivers for Millennials’ Thinking Today
  3. Impact of Millennials on Legal Technology and eDiscovery
  4. Conclusions and Recommendations

We’ll publish Part 2 – Understanding Millennials and How They Differ from Previous Generations – on Friday.

So, what do you think?  Have the habits of millennials impacted eDiscovery for your organization?  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.

This Blog Post Will Not Be Automatically Deleted, But Your Instant Message Might Be: eDiscovery Trends

The sources of electronically stored information (ESI) are more varied than ever.  Now, they routinely include text messages and messages from instant messaging apps.  But, depending on the instant message app – or the archive option for any messaging app, that ESI might not be available at litigation time.

In LegalTech® News (This Article Will Self-Destruct: Behind Ephemeral Messaging’s In-House Rise, written by Rhys Dipshan), the author notes that the rise of ephemeral messaging, self-erasing communications “have gone from spy movie lore to everyday consumer technology.”  That technology may be welcomed by privacy advocates, but not so much by those responsible for compliance, investigations and litigation efforts.  And, while ephemeral messaging was once only the focus of a handful of messaging apps, they’re now being offered by widely used services like Gmail and Facebook.

Remember the Waymo v. Uber case?  In that case, Waymo sought sanctions for Uber’s use of the ephemeral messaging app Wickr for communications, but California District Judge William Alsup ruled that Waymo could inform the jury of the situation and have them reach their own conclusions – in part, because Waymo also disclosed it used ephemeral messaging apps in-house as well.

Ephemeral messaging apps are becoming more prevalent – and they’re even becoming more accepted from a regulatory standpoint.  In April 2019, for example, the Department of Justice (DOJ) rescinded a policy requiring companies to restrict their employees’ use of ephemeral messaging apps if they wanted credit for cooperating with DOJ enforcement actions under the Foreign Corrupt Practices Act. The new DOJ policy now only requires companies to implement “appropriate guidance and controls on the use of personal communications and ephemeral messaging platforms.”

Gareth Evans, eDiscovery expert and partner at Redgrave, noted that one of the most fundamental uses for ephemeral messaging is to help organizations more easily delete data they shouldn’t be keeping in the first place.

“Simply, if there is no business purpose or business need for retaining the messaging, if there is no legal requirement to keep it, that in itself is a good reason not to be keeping it. And by keeping communications [you don’t need], you run certain risks.”

That’s great when there isn’t a duty to preserve (i.e., when you anticipate litigation).  But, what about when that duty exists?

For years, we’ve discussed the importance of suspending auto delete programs when anticipating litigation and we’ve discussed cases where failure to do so can lead to sanctions (like this one and this one).  Historically, those auto delete programs have been associated with email, but they are becoming more associated with text and other messaging apps, as well.  And, it’s important to note that while some messaging apps are ephemeral by default, most (if not all) messaging apps can be set to automatically delete messages after a period of time – including text messaging apps like the text message app for iPhones, which is set to retain messages “forever” by default, but can be changed to a 1 year or even 30 day retention period.  That’s why it’s become more important than ever to address automatic deletion for text and other messaging apps when litigation is anticipated to avoid potential spoliation.

So, what do you think?  Does your organization use ephemeral messaging apps?  If so, how does it handle the use of those apps during litigation?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Image Copyright © CBS Television Distribution.

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.