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eDiscoveryDaily

What Are the Biggest Challenges for Law Departments in 2016? This Report Has Some Answers: eDiscovery Trends

According to Consilio’s Law Department Benchmarking Report, a survey encompassing data from 119 company’s law departments ranging in revenue from 2 to 10 billion dollars which was released on Tuesday, over 50 percent of law departments find that increasing or changing regulatory requirements pose the biggest challenge in 2016.  That, and other, findings can be found in the report, which is now available.

The sixth annual survey aims to help general counsel (GCs) better understand the effectiveness of their operating processes and was conducted in partnership with The General Counsel Forum.  We covered last year’s survey here when it was issued by Huron Legal (which, as you probably know by now, was acquired by Consilio a couple of months ago).

As noted in Consilio’s press release announcement of the report, while 58 percent of law departments have an internal data-privacy program, just 21 percent take the same precautions with information shared externally when managing vendors. The lack of risk-assessment programs makes sensitive data vulnerable to hacking and other cyber threats.

“As security concerns become more commonplace, law departments are working to ensure proper data security measures are implemented to protect sensitive company information both internally and externally,” said Bret Baccus, managing director, Consilio. “We’re seeing more companies use objective, metrics-based measurements to assess outside counsel and other providers’ security capabilities. Those metrics are being used to select third-party vendors based on the risk level in sharing confidential information and data.”

Other highlights of the report include:

  • Spending continued to increase, although at a lower rate than the prior year – at 7 percent from 2014 to 2015 as compared to an increase of 2.2 percent from 2013 to 2014.
  • Law departments are becoming more sophisticated in spend management, with 67 percent of respondents using matter-level budgets and 74 percent having, or planning to implement, structured programs for conducting rate negotiations.
  • The top department initiative planned over the next three years was formalization of outside counsel performance review process (with 46 percent of respondents either already implementing or planning to implement within the next 2-3 years), followed by development of an enterprise information governance program (38 percent) and tracking of department metrics and performance indicators (36 percent).
  • As law departments look to effectively manage costs and workloads, many are more often outsourcing discovery work to non-law firm vendors. Over 75 percent of companies with over $10 billion in revenue reported using alternative service providers for document review and data processing/hosting, with 44 percent of companies between $2 and $10 billion reporting the same.
  • Discovery management programs are fairly common at the largest companies, but relatively few companies with revenue under $10 billion have them, even though for companies with any volume of litigation those programs can reduce risk by improving consistency and defensibility and save money by limiting the need to “reinvent the wheel” with each new case.

The highlights of the Law Department Benchmarking Report are available for download here.  For more information about the complete report, please contact Bret Baccus (bbaccus@consilio.com or 713‑222‑5910) or Jaime Woltjen (jwoltjen@consilio.com or 312-880-3737).

So, what do you think?  Are you surprised by any of these trends?  Please share any comments you might have with us or let us know if you’d like to know more about a particular topic.

P.S. — Happy Birthday to my wife, Paige!  I love you honey!

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.

Apple in Court Battle Over Access to San Bernardino Shooter’s iPhone: eDiscovery Trends

In a case that pits national security vs. privacy concerns, a federal judge on Tuesday ordered Apple to give investigators access to encrypted data on the iPhone used by one of the San Bernardino shooters, a court order that Apple has vowed to fight, accusing the federal government of an “overreach” that could potentially breach the privacy of millions of customers.

According to NBC News, in a 40-page filing, the U.S. Attorney’s Office in Los Angeles argued that it needed Apple to help it find the password and access “relevant, critical … data” on the locked cellphone of Syed Farook, who with his wife Tashfeen Malik murdered 14 people in San Bernardino, California on December 2.

The judge ruled that Apple had to provide “reasonable technical assistance” (that it had previously “declined to provide voluntarily”) to the government in recovering data from Farook’s iPhone 5c, including bypassing the auto-erase function and allowing investigators to submit an unlimited number of passwords in their attempts to unlock the phone. Apple was given five days to respond to the court if it believed that compliance would be “unreasonably burdensome.”

Apple CEO Tim Cook published an open letter late Tuesday, pledging to fight a judge’s ruling that it should give FBI investigators access to encrypted data on the device.

“We have great respect for the professionals at the FBI, and we believe their intentions are good. Up to this point, we have done everything that is both within our power and within the law to help them. But now the U.S. government has asked us for something we simply do not have, and something we consider too dangerous to create. They have asked us to build a backdoor to the iPhone”, Cook wrote.  “The United States government has demanded that Apple take an unprecedented step which threatens the security of our customers. We oppose this order, which has implications far beyond the legal case at hand.”

Stating that creation of a tool to unlock the iPhone would be “the equivalent of a master key, capable of opening hundreds of millions of locks – from restaurants and banks to stores and homes”, Cook wrote that “[n]o reasonable person would find that acceptable.”  “Opposing this order is not something we take lightly. We feel we must speak up in the face of what we see as an overreach by the U.S. government.”

Yesterday, the Today show covered the dispute as its top story – even before covering the election and Donald Trump (imagine that!).  A link to the video and more on the story is available on the NBC News site here.  The experts interviewed on the show expected to court battle to continue for some time.

So, what do you think?  Does Apple have legitimate concerns or is it their duty to assist the government and create a tool to unlock the iPhone?  Please share any comments you might have with us or let us know 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.

Dispute Over Adequacy of Defendant’s Production Leads to Court Ordered Meet and Confer: eDiscovery Case Law

In Gardner et. al. v. Continental Casualty Company, No. 13-1918 (D. Conn., Jan. 13, 2016), Connecticut Magistrate Judge Joan Glazer Margolis, granting the plaintiff’s motion to compel in part, ordered the parties to meet and confer regarding “’sampling and iterative confinement’ or ‘quick peek protocol’ of the 38,000 documents ‘hit’ by the agreed upon search terms and notify the court in writing “about their progress, or lack thereof, on or before February 12, 2016.”

Case Background

In this class action for violations of Connecticut’s Unfair Trade Practices Act, the parties agreed (after some negotiation) to a list of search terms from the e-mail of twenty-three custodians, which resulted in a return of approximately 38,000 documents.  However, after the defendant reviewed these documents for relevancy and privilege, it produced only 2,214 pages, of which 274 pages consisted of copies of the complaints, with exhibits, filed in the lawsuit.

The plaintiffs filed a Motion to Compel, arguing that the defendant “cherry-picked” the produced documents and called the production “incomplete and inadequate”, citing to four documents where they contended that the defendant redacted or omitted “highly relevant” materials.  The defendant countered that it had provided the plaintiffs with extensive discovery over twenty-two months, including 16,800 pages of documents and indicated that it “spent significant resources reviewing the 38,000 documents identified as the result of the search term process,” and provided their own justification for the redactions in the four documents mentioned by the plaintiffs.

The plaintiffs responded that they did not accept the defendant’s “just trust us” approach to relevancy, that “the entire exercise of agreeing on search terms was to avoid a prolonged and detailed debate over what ESI documents are `responsive’ to the discovery requests”, that ESI production based on search term hits only “is a common discovery practice ordered by courts,” and that documents provided by LTCG (the defendant’s third-party claims administrator) were far more comprehensive and informative than those provided by the defendant, confirming that the defendant’s “ESI production is woefully deficient.”

Judge’s Ruling

In considering the plaintiff’s motion, Judge Margolis stated that the “position taken by plaintiffs is simply untenable – defendant is not obligated to turn over all 38,000 documents, after a review eliminates some on the basis of privilege…As every law school student and law school graduate knows, when performing a computer search on WESTLAW and/or LEXIS, not every case responsive to a search command will prove to be relevant to the legal issues for which the research was performed. Searching tens of thousands, and hundreds of thousands, of electronic documents is no different. The Court shares, however, plaintiffs’ legitimate concern that LTCG produced different, and obviously relevant, documents that were not provided by defendant itself.”

To attempt to have the parties resolve the dispute themselves, Judge Margolis ordered that “counsel shall confer further regarding variations of two approaches discussed in the Strauch Ruling — ‘sampling and iterative refinement’ or ‘quick peek protocol’ – of the 38,000 documents ‘hit’ by the agreed upon search terms, and shall notify the Magistrate Judge, in writing, about their progress, or lack thereof, on or before February 12, 2016.”  As for the four redacted documents in dispute, Judge Margolis ordered the defendant to forward unredacted versions “for her in camera review, to determine if defendant’s redactions were appropriate or overbroad with respect to those four documents”.

So, what do you think?  Was that a reasonable resolution to the dispute or should the court have ruled one way or the other?  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.

Announcing Sixth Annual LTNY Thought Leader Series!: eDiscovery Trends

The annual appearance of the dancing light bulb can only mean one thing – it’s time for another thought leader series!  Over our nearly 5 1/2 years of our existence, eDiscovery Daily has published several thought leader interviews from various thought leaders throughout the eDiscovery community, including an annual series of interviews at LegalTech New York (LTNY).  For the sixth(!) consecutive year, we’re pleased to introduce the schedule for this year’s series, which will begin next Monday, February 22.

Here are the interviews that we will be publishing over the next few weeks:

Monday, February 22: Brad Jenkins, CEO of CloudNine™.  Brad has over 20 years of experience as an entrepreneur, as well as 15 years leading customer focused companies in the litigation technology arena. Brad has authored many articles on litigation support issues, and has spoken before national audiences on document management practices and solutions.

Wednesday, February 24: George Socha, President of Socha Consulting LLC and co-founder of the Electronic Discovery Reference Model (EDRM) and Apersee.  As President of Socha Consulting LLC, George offers services as an eDiscovery expert witness, special master and advisor to corporations, law firms and their clients, and legal vertical market software and service providers in the areas of electronic discovery and automated litigation support.

Friday, February 26: Jason R. Baron, Of Counsel, Drinker Biddle & Reath LLP.  Jason is a member of Drinker Biddle’s Information Governance and eDiscovery practice.  An internationally recognized speaker and author on the preservation of electronic documents, Jason previously served as Director of Litigation for the U.S. National Archives and Records Administration and as trial lawyer and senior counsel at the Department of Justice.  He also was a founding co-coordinator of the National Institute of Standards and Technology TREC Legal Track, a multi-year international information retrieval project devoted to evaluating search issues in a legal context.

Monday, February 29: Tom O’Connor, Director of the Gulf Coast Legal Technology Center and Senior ESI Consultant with Advanced Discovery  Tom is a nationally known consultant, speaker and writer in the area of computerized litigation support systems.  A frequent lecturer on the subject of legal technology, Tom has been on the faculty of numerous national CLE providers and has taught college level courses on legal technology.

Wednesday, March 2: Craig Ball, Law Offices of Craig D. Ball, P.C.  A frequent court appointed special master in electronic evidence, Craig is a prolific contributor to continuing legal and professional education programs throughout the United States, having delivered over 1,650 presentations and papers.  Craig’s articles on forensic technology and electronic discovery frequently appear in the national media and he teaches E-Discovery and Digital Evidence at the University of Texas School of Law.  He currently blogs on eDiscovery topics at ballinyourcourt.com.

Friday, March 4: Chris Dale, Editor of the eDisclosure Information Project.  Chris qualified as an English solicitor in 1980 after reading History at Oxford. He was a litigation partner in London and then a litigation software developer and litigation support consultant before turning to commentary on electronic disclosure / discovery. He runs the e-Disclosure Information Project which disseminates information about the court rules, the problems, and the technology to lawyers and their clients, to judges, and to suppliers. He was a member of Senior Master Whitaker’s Working Party which drafted Practice Direction 31B and the Electronic Documents Questionnaire. Chris is also a well-known speaker and commentator in the UK, the US and other common law jurisdictions.

Monday, March 7: Pete Feinberg, Senior Vice President of Product Strategy at Consilio, Pete is responsible for the overall product strategy and product management of Consilio’s products and services line.  Pete’s specialties are in guiding product strategy, bringing new products and services to market, representing the voice of the client as an executive “client advocate”, and guiding the service delivery organization to engage with clients not as a vendor, but instead as a trusted advisor.

Wednesday, March 9: Ralph Losey, Principal and National eDiscovery Counsel for Jackson Lewis, LLP.  Ralph is also a prolific author of eDiscovery books and articles, the principle author and publisher of the popular e-Discovery Team® Blog and the creator of the Electronic Discovery Best Practices (EDBP.com) model.

Once again, thanks to everyone for their time in participating in these interviews!  Once we publish all of them, we will link to each of them from this post.

Want to look back at previous years’ interviews?  Here are links to our 2015, 2014, 2013 and 2012 interview series.

So, what do you think?  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.

Survey Says! How Confident Are You About the eDiscovery Business?: eDiscovery Trends

On his terrific Complex Discovery site, Rob Robinson is currently conducting an interesting survey for those interested in the business confidence level of individuals working in eDiscovery.

Rob’s eDiscovery Business Confidence Survey is a non-scientific survey designed to provide insight into the business confidence level of individuals working in the eDiscovery ecosystem. The term ‘business’ represents the economic factors that impact the creation, delivery, and consumption of eDiscovery products and services.

In the survey, Rob asks questions related to how you rate general business conditions for eDiscovery in your segment of the eDiscovery market, both current and six months from now, a general sense of where you think revenue and profits will be for your segment of the market in six months and which issue do you think will most impact the business of eDiscovery over the next six months, among other questions.  It’s a simple nine question survey that literally takes about a minute to complete.

This is the first Business Confidence survey that Rob is conducting, with the expectation that the survey will be conducted on a quarterly basis.  Individual answers are kept confidential, with the aggregate results to be published on Rob’s Complex Discovery site upon completion of the response period, which will run from February 15 and February 29.

The more respondents there are, the more useful the results will be!  Click here to take the survey yourself.  Don’t forget!

So, what do you think?  Are you confident in the state of business within the eDiscovery industry?  Share your thoughts in the survey and, as always, please share any comments you might have with us or let us know 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.

Alteration of Domain in Produced Emails Leads to Sanctions for Plaintiffs: eDiscovery Case Law

In CAT3, LLC v. Black Lineage, Inc., No. 14 Civ. 5511 (AT) (JCF) (S.D.N.Y. Jan. 12, 2016), New York Magistrate Judge James C. Francis IV, ruling that emails produced by the plaintiffs were “intentionally altered”, ordered that the plaintiffs would be precluded from relying on their version of those emails to demonstrate their case and that the plaintiffs would bear the “costs, including reasonable attorney’s fees, incurred by the defendants in establishing the plaintiffs’ misconduct and in securing relief.”

Case Background

One of the key issues in this case regarding trademark infringement regarded similarity between the plaintiffs’ and defendants’ trademarks and whether the defendants developed their trademark (FLASHXHYPE) mark independently or after learning of the plaintiffs’ development of their trademark (SLAMXHYPE).  In a deposition of the defendant company’s president, communication between the defendant and plaintiff companies was provided (which had been produced as PDF images) that showed the plaintiffs’ employee’s address as having the email domain “@slamxhype.com.”  However, on cross examination, the deponent testified that the email he received was identical, except that it showed the plaintiffs’ employee’s address with the email domain “@ecko.com.”

The defendants’ counsel then sought to explore the discrepancy, and in May 2015, they demanded production of the plaintiffs’ emails in native form.  The plaintiffs did not initially respond and, ultimately, their attorneys withdrew and were replaced by new counsel.  In July 2015, the Court ordered the plaintiffs to comply with the defendants’ request and the plaintiffs produced a USB drive containing a PST file, a zip file, and several separate PDFs of relevant emails.

The defendants subjected that production to a forensic analysis which determined that there were two versions of each email message: a “top” level version and, behind each email message, a “near-duplicate copy of the message containing the identical message,” but with different email domains appearing for a number of the senders and recipients.  The underlying near-duplicate versions were the original emails, which had been deleted, albeit not without leaving a digital imprint.

Relying largely on the forensic analysis, the defendants then moved for sanctions consisting of some combination of dismissal of the complaint, imposition of an adverse inference, an order of preclusion, and assessment of attorneys’ fees and costs.

Judge’s Ruling

In considering the application of the amended Rule 37(e) to the situation, Judge Francis determined that “because the amendment is in some respects more lenient as to the sanctions that can be imposed for violation of the preservation obligation, there is no inequity in applying it.”

With regard to the plaintiffs’ claim that “there has been no destruction or loss of any evidence, and there certainly has not been both (i) loss of evidence AND (ii) “such evidence cannot be restored or replaced” as required by Rule 37, Judge Francis, citing Victor Stanley (the first case ever covered by this blog), stated “the plaintiffs argue that even if they are the ‘gang that couldn’t spoliate straight,’ they cannot be sanctioned because their misdeeds were discovered and the information recovered. They are incorrect.”  Elaborating, Judge Francis said that “it cannot be said that the information lost has been ‘restored or replaced’”, noting that “as the plaintiffs themselves suggest, the fact that there are near-duplicate emails showing different addresses casts doubt on the authenticity of both”.

Regarding the plaintiffs’ contention that the manipulation of the emails was unintentional and possibly due to the migration of the plaintiffs’ emails from one system to another, Judge Francis refuted that notion, stating that the “evidence supports the defendants’ allegation that the plaintiffs intentionally altered the emails at issue”.

With regard to relief, Judge Francis, while considering dismissal of the action or imposition of an adverse inference as possible sanctions, stated “such drastic sanctions are not mandatory”.  Therefore, he ordered a “two-fold remedy”, ordering that the plaintiffs would be “precluded from relying upon their version of the emails at issue to demonstrate notice to the defendants of use of the SLAMXHYPE mark” and that the plaintiffs would bear the “costs, including reasonable attorney’s fees, incurred by the defendants in establishing the plaintiffs’ misconduct and in securing relief.”

So, what do you think?  Were those sanctions warranted?  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 and the Institute for Information Governance offer New Professional Education Series: eDiscovery Trends

As you know if you read this blog, EDRM is committed to education within the eDiscovery industry.  Now, a new partnership with the Institute for IG and IMERGE Consulting will provide education for those interested in learning more about information governance (IG) and electronic records management (ERM).

As EDRM announced yesterday, the purpose of the partnership is to offer education for e-discovery professionals who are seeking to build practical skills in IG and ERM. Participants will earn a certificate in Advanced IG or ERM. Live instructor-led sessions will be held March 22-24, 2016, at the University of San Diego, Kroc Center. Online sessions and on demand HD video content are also available. Course details and registration can be found on the EDRM website at http://www.edrm.net.

“EDRM introduced the Information Governance Reference Model (IGRM) to help promote collaboration among the various stakeholders – business users, IT departments and legal, risk and regulatory departments, all of whom have interests and obligations in effective information governance,” said George Socha, co-founder of EDRM. “As the industry continues to mature, professional education that integrates the principles of effective information governance with the legal and risk management interests in e-discovery and regulatory compliance is more important than ever. The courses offered by the Institute for IG provide EDRM members a valuable opportunity to expand their knowledge and skills in the areas of IG and ERM.”

Robert Smallwood, the world’s leading IG author, blogger and trainer, is the primary instructor for the IG classes. Charmaine Brooks, CRM, a renowned records management expert, is the primary instructor for the ERM classes. George Socha will serve as an advisor and guest instructor.

EDRM members are eligible for special discounts.  So, if you’re interested in joining EDRM, there has never been a better time!  Organizations interested in EDRM membership will find information at https://www.edrm.net/join/.

So, what do you think?  Are you interested in learning more about information governance or electronic records management?  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.

Various Observations from LegalTech 2016: eDiscovery Trends

At the start of the year, one of the goals that I identified for the blog this year was to provide more perspectives from other professionals in the industry.  Not only does that give our readership different points of view, but it also saves me some work!  With that in mind, I asked various people that I met with (and/or presented with) at LegalTech® New York 2016 (LTNY) last week to offer their observations about this year’s conference.  Ten of them did, and those observations are reflected here.

The perspectives range from industry thought leaders to professionals at law firms and eDiscovery providers.  They reflect observations about everything from the sessions, the exhibit hall, the traffic, the logistics and the industry itself (after all, LTNY is a microcosm of the industry).  Some observations reflected the positive aspects of this year’s LTNY and some reflected some issues with the show and/or the exhibitors’ approach to the show.  Here they are, in the order they provided them to me:

George Socha, Co-Fourder of EDRM and Founder of Socha Consulting LLC: “On the monitors in exhibitors’ booths, I saw old school and new.  Old school showed quantitative information in rows and columns – often difficult to assimilate.  New school channeled Edward Tufte, visually displaying quantitative information in ways that allow us to more quickly and easily absorb, understand and synthesize large volumes of varied data.  More new school please!”

David Cohen, Practice Group Leader, Global Records & E-Discovery Practice Group at Reed Smith LLP: “The buzz at the show, and comments from multiple experts in the e-discovery field, indicated no let-up in the e-discovery business—it continues to grow, and we continue to see reorganization and consolidation in e-discovery companies, as well as the usual cycles of some companies and law firms trying to bring more of the work in-house, while others move toward more outsourcing or managed services.  In the meantime e-discovery sophistication, both in the people and in the products, continues to increase all around.  Accordingly, the demand for experienced assistance—being able to do more with less– remains high.”

Tom O’Connor, Senior ESI Consultant at Advanced Discovery and Director of the Gulf Coast Legal Technology Center: “Attendance was good and seemed a bit higher than last year in my entirely unscientific appraisal. EDiscovery was the major theme, with minors in analytics, security and international data issues.

The eDiscovery focus continues to shift to the left side of the EDRM model with an increased focus on data analytics and ECA/EDA.  I’ve said for over 2 years now that the only way to control ED costs is through effective document management policies, and the focus now seems to be firmly on that approach.  With regard to analytics, the main problem seemed to be defining it: one man’s analytics is another man’s concept search, if you will.   The main definition of analytics seemed to be ‘what we are selling’.”

Ralph Losey, National e-Discovery Counsel at Jackson Lewis, LLP: “Another year in the premier legal technology event, and another year of just more talk and competing, unproven claims by vendors. The legal industry needs objective evaluations beyond just Gartner to help attorneys sort through all of the baloney being served at LegalTech and other vendor driven events. But I do not see anything like that on the horizon and I begin to wonder if these events do more harm than good. Is LegalTech just another vendor event for the broadcast of misinformation and puffing. Does throwing in a few fine lawyer speeches (and there were many this year, as usual) really make a difference? The whole industry suffers as a result of this “all talk, no walk” approach. ALM’s LegalTech, or someone, needs to take the lead and start promoting standards and reliable, tested information. In the meantime we are drowning in “buyer beware” information, with little or no real knowledge dissemination, not to speak of wisdom.”

Amy Bowser-Rollins, Editor of the Litigation Support Guru: “I was really impressed with Dera Nevin on the ‘TAR 2.0 For Smart People’ panel on Tuesday and I enjoyed hearing about the non-traditional use examples in the TREC session on Wednesday morning. I was surprised at how dismal the exhibitor floors seemed this year.”

Bruce Markowitz, Vice President, e-Discovery at Evolver Legal Services: “It was refreshing to see new technology being deployed this year, especially for native excel redaction. No longer needing to tiff and pdf excels to be redacted is a big step forward in eDiscovery.”

Staci Kaliner, Senior Advisor, Redgrave LLP: “LegalTech NY 2016 was as vibrant as always.  The networking opportunities were endless, including meeting new contacts on the 20 minute line for the elevators!  There is no other conference in the industry that enables you to compare and contrast service providers, technologies, offerings and industry trends with the best and the brightest.”

Michele C.S. Lange, Director, Kroll Ontrack: “With more than 60 educational sessions, there was no shortage of top-notch speakers, interesting commentary and hot-topics at #LTNY16. Here were the top 5 themes that I noticed across the various sessions: Predictive Coding, FRCP Amendments, Safe Harbor, Information Governance, and Office365 and the Cloud. I particularly enjoyed the session that Kroll Ontrack sponsored with the EDRM, “25 Ediscovery Warnings in 75 Minutes”, which was standing room only and featured more speakers than any other session. Also, it was probably the only session that covered all 5 of these LTNY “hot topics” in less than 75 minutes!”

Janice Jaco, eDiscovery Project Manager at Keesal, Young & Logan: “One recurring theme I heard was that we are pricing ourselves out of the legal system.  Big data, specifically, document review, is inhibiting the judicial process.  Looking at every page of every document is not the gold standard in the age of predictive coding, categorization and analytics.  Corporate law departments should have a conversation with their outside counsel about the appropriateness of a linear, manual document review on every case with a significant amount of ESI.  There was also much discussion about ediscovery competence, which is a known predictor of discovery costs.  Clients should dig deep into the credentials of their outside counsel to confirm the right people, process and technology are being applied to discovery.  This is another way to reduce costs.”

Pete Feinberg, Senior Vice President, Products & Marketing at Consilio: “Legaltech New York 2016 is evidence that the technology providers in the market have reached a milestone of thinking about their software in the context of consumerization – bringing complex technologies to the masses in intuitive and natural workflows.  As opposed to Legaltechs of years past – where technology providers were just introducing powerful tools such as text analytics and predictive coding without much consideration for workflows natural to attorneys (instead aiming their wares at technophile elites), we are seeing more thoughtful and organic software that will drive adoption by less technology savvy attorneys.  The legal technology industry is now taking cues from consumer tech giants like: Amazon.com, Pandora, Google Maps, Apple and Expedia. That signals a maturation of the industry overall.

At the same time, the age of global consolidation is finally here.  From market news in the days leading up to, and during Legaltech, we’re seeing clear signs of consolidation and investment in the industry creating more distance between the dominant global players and smaller ancillary providers.”

So, what do you think?  Did you attend LTNY this year?  If so, what were YOUR observations?  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.

Europe and US Agree to Replace Safe Harbor with a Shield: eDiscovery Trends

While many of us were at LegalTech® New York 2016 last week, an important new framework for transatlantic data flows was agreed upon – the EU-US Privacy Shield.

As announced last Tuesday, the new framework is intended to protect the fundamental rights of Europeans where their data is transferred to the United States and ensure legal certainty for businesses.

According to the European Commission, the EU-US Privacy Shield reflects the requirements set out by the European Court of Justice (ECJ) in its ruling in the Schrems case last October 2015 (covered by us here), which declared the old Safe Harbor framework invalid. The new arrangement will provide stronger obligations on companies in the U.S. to protect the personal data of Europeans and stronger monitoring and enforcement by the U.S. Department of Commerce and Federal Trade Commission (FTC), including through increased cooperation with European Data Protection Authorities. The new arrangement includes commitments by the U.S. that possibilities under U.S. law for public authorities to access personal data transferred under the new arrangement will be subject to clear conditions, limitations and oversight, preventing generalized access. Europeans will have the possibility to raise any inquiry or complaint in this context with a dedicated new Ombudsperson.

The new agreement, which has yet to be published (and is apparently still “some” weeks out, according to an article in TechCrunch) will include provisions for “strong obligations on companies handling Europeans’ personal data and robust enforcement”, “clear safeguards and transparency obligations on U.S. government access” and “effective protection of EU citizens’ rights with several redress possibilities”.  Next steps include preparation of a draft “adequacy decision” in the coming weeks, which could then be adopted by the College of Commissioners after obtaining the advice of the Article 29 Working Party and after consulting a committee composed of representatives of the Member States. In the meantime, the U.S. side will make the necessary preparations to put in place the new framework, monitoring mechanisms and new Ombudsman.

In the TechCrunch article, Schrems, whose legal action against Facebook ultimately brought down the original Safe Harbor, expressed skepticism the deal goes far enough to stand the test of another legal challenge at the ECJ, noting that the “Court has explicitly held, that any generalized access to such data violates the fundamental rights of EU citizens”.

So, what do you think?  Will the new “Privacy Shield” hold?  Or is it too soon to tell?  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.

Changes in Federal Rules Result in Reversal of Adverse Inference Sanction: eDiscovery Case Law

In Nuvasive, Inc. v. Madsen Med. Inc., No. 13cv2077 BTM(RBB) (S.D. Cal. Jan. 26, 2016), California Chief District Judge Barry Ted Moskowitz, considering new standards imposed under recently amended Federal Rule of Civil Procedure 37(e), granted the plaintiff’s motion for an order vacating the Court’s previous order granting (in part) the defendants’ Motion for Sanctions for Spoliation of Evidence.

Case Background

In a previous ruling (which we covered here), Judge Moskowitz granted the defendants’ motion for adverse inference sanctions for failure to preserve text messages from four custodial employees that were key to the case.  The plaintiff sought relief under Rule 60(b) based on an amendment to Federal Rule of Civil Procedure 37(e), which went into effect on December 1, 2015.

The defendants opposed the motion, arguing that it was untimely and also argued that it was neither “just” nor “practicable” to apply the new rule because: (1) the mere fact that trial was postponed to February 2016 due to the Court’s schedule should not have the effect of absolving the plaintiff of its discovery misconduct; (2) application of the amended rule would cause substantial prejudice to the defendant, which took discovery and filed its spoliation motion under the standard applicable at the time; and (3) there is no alternative sanction that would remedy the prejudice to the defendants caused by the plaintiff’s destruction of evidence.

Judge’s Ruling

In assessing the new Rule 37(e) language, Judge Moskowitz stated that “It is clear from the language of (e)(2) as well as the Committee Notes that the adverse inference instruction that the Court was going to give falls within the measures that are not permissible absent a finding of intent. The Committee Notes explain: ‘Subdivision (e)(2) applies to jury instructions that permit or require the jury to presume or infer that lost information was unfavorable to the party that lost it. Thus, it covers any instruction that directs or permits the jury to infer from the loss of information that it was in fact unfavorable to the party that lost it.’”

Continuing, Judge Moskowitz observed that “In its prior orders, the Court did not make any finding that NuVasive intentionally failed to preserve the text messages so that Defendants could not use them in this litigation. Instead, the Court found that NuVasive was at fault for not enforcing compliance with the litigation hold. The record does not support a finding of intentional spoliation by NuVasive. Therefore, under Rule 37(e), as amended, it would not be proper for the Court to give the adverse inference instruction.”

Judge Moskowitz rejected the defendants’argument that the motion was untimely, noting that the plaintiff brought its motion on December 10, 2015, just nine days after the new rule went into effect.  While acknowledging that “NuVasive has had a bit of good luck in that trial is scheduled for February, after the effective date of the new rule”, Judge Moskowitz indicated that he was “not convinced that there is any prejudice” to the defendant, noting that, “even under the standard applied by the Court in initially ruling upon Defendants’ motion for sanctions, intent was relevant”.

Judge Moskowitz did indicate he would allow both parties “to present evidence to the jury regarding the loss of electronically stored information and will instruct the jury that the jury may consider such evidence along with all other evidence in the case in making its decision.”

So, what do you think?  Should sanction orders be vacated because of the amendment to Rule 37(e)?  Will this create a wave of motions requesting that courts vacate similar orders in other cases?  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.