Close
Enter your
text here

eDiscoveryDaily

ALSP – Not Just Your Daddy’s LPO, Part Three: eDiscovery Trends

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 also wrote a terrific four part informational overview on Europe’s General Data Protection Regulation (GDPR) titled eDiscovery and the GDPR: Ready or Not, Here it Comes (and participated with me on a webcast on the same topic) and wrote another terrific five part informational overview on Understanding eDiscovery in Criminal Cases.  Now, Tom has written another terrific overview regarding Alternative Legal Service Providers titled ALSP – Not Just Your Daddy’s LPO that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  We covered part one last Thursday and part two on Monday.  Here’s part three.

Who is actually using an ALSP?  And, why are they using them?

Who is actually using an ALSP?  And what is the specific breakdown of these services? The Thomson Reuters Legal Executive Institute report shows that more than half of law firms and corporations are already using ALSPs with 51 percent of law firms and 60 percent of law departments already using ALSPs in at least one service category.

John Munro, Vice President of National Markets at Blackstone Discovery, was a panelist at a Legaltech New York session discussing the ALSP market. He noted that traditional document review work was once 75 percent of the LPO market but now may be no more than 30 percent of the ALSP market. More and more, ALSPs are playing a bigger role in providing legal services.

Law departments seem to be using ALSPs in specialized areas ranging from regulatory risk & compliance services to specialized legal advice for IP managers and legal researchers.

Law firms however are most likely to use ALSPs for litigation support, especially eDiscovery, document review and pre-litigation investigation.

In a January press release, report co-author Mari Sako, Professor of Management Studies at Saïd Business School shared that:

“ALSPs are not just about lower cost, but also about access to specialized expertise and alternative modes of delivery.”

But why?

ALSPs were originally seen as a good outsourcing choice simply because of affordability in handling tasks without billing out to an attorney. In 2005, it was purely about the cost savings and the labor arbitrage.  And according to the Thomson Reuters report that still seems to be the case when it comes to tasks such as document review. 85 percent of law firms who use ALSPs said they do so in document review for cost savings and 52 percent said they use them to meet peak document review demand without increasing headcount.

While cost savings still remains a driver, the report confirms how ALSPs today are disaggregating legal processes, that is to say they are providing legal expertise not always available in-house and helping enable greater use of current technology.

Outside of document review though, the need for expertise is increasingly a key factor in selecting an ALSP.  About two-thirds of law firms reported using litigation and investigation support services ALSPs and said their primary reason was the need for access to specialized expertise not available in-house; only one-third cited cost savings as a main factor. A good example of this expertise is Attorney Kelly Twigger and her company, ESI Attorneys. She routinely engages as the eDiscovery expert for law firms and corporate clients because she can provide a depth of ESI experience which they simply cannot bring to the table.

In selecting a non-legal task ALSPs, the percentages were close to the same: 63 percent (expertise driven) and 38 percent (cost-driven), respectively.

For in-house counsel, the four most often selected types of ALSP services beyond eDiscovery and document review were regulatory risk and compliance services, specialized legal services, intellectual property management, and legal research services. The primary reason for selection of these services was access to specialized expertise not available in-house and the difference between this reason and cost was even more pronounced then with private firms, at 77 percent for expertise while only 27 percent for cost savings.

In a statement to Legaltech News during the Legaltech conference in New York earlier this year, Eric Laughlin, Managing Director of Legal Services at Thomson Reuters, noted that

“Having matured in their offerings a little bit, these alternative legal service providers are differentiating based on expertise. And that makes corporations more and more comfortable to reach out to them and use them.”

In addition to expertise, an ALSP can do a much higher volume of work than can the average law firm or legal department. For example, an ALSP specializing in eDiscovery may simply have many more tools and much more robust workflow processes for extracting electronic evidence from terabytes of ESI than any firm or GC office.

This higher volume capability allows their expertise to be applied in a manner that is not only faster but less costly.  The result is that law firms now see that subcontracting services to an ALSP can allow them to focus more on their own core competencies. And corporations which have become more focused on reducing outside legal spend see that using a specialized ALSP rather than a law firm may better serve that purpose.

We’ll publish the final part, Part Four – What does this mean for the future of ALSPs? – next Tuesday.

So, what do you think?  Have you used an ALSP before?  And, as always, please share any comments you might have or if you’d like to know more about a particular topic.

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

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

Understanding eDiscovery in Criminal Cases: eDiscovery Trends

Criminal cases have long been thought of as an arena devoid of electronic discovery issues. But attorneys who regularly handle criminal cases know that’s not the case. So, are there any guidelines and best practices for handling eDiscovery in criminal cases?  There are, and we’re going to discuss them in a webcast next week.

But first, this week’s eDiscovery Tech Tip of the Week (which I forgot to post last Friday, oops!) is about Stemming and Synonym Searching.  When performing keyword searching, it may be difficult to think of every variation of a word to search for or other words that have the same meaning that may also be relevant.  Stemming searching is a way to catch those variations of terms and Synonym searching is a way to catch other terms that mean essentially the same thing as the desired term.  Both mechanisms help expand the potential recall of your search and enable you to locate additional important ESI to your case that might otherwise be missed, simply because those additional relevant terms weren’t identified.  You don’t want to miss an important document just because you didn’t think to search for a variation of the word, do you?  Didn’t think so… :o)

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

Anyway, on Wednesday, March 21 at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Understanding eDiscovery in Criminal Cases In this one-hour webcast that’s CLE-approved in selected states, we will take a look at the history of the development of standards and highlight specific issues of importance regarding eDiscovery in criminal matters. Topics include:

  • Overview of Rules for Criminal Matters
  • How Data is Acquired in Criminal Matters
  • Common Data Types and Examples of Cases
  • Data Exchange Formats and Protocols
  • Time Issues Specific to Criminal ESI
  • Working with Social Media as Evidence
  • Border Entry Considerations and Examples
  • Resources for More Information

Once again, I’ll be presenting the webcast, along with Tom O’Connor, who recently wrote an article about eDiscovery in criminal cases that we covered as a terrific five part informational overview.  I love it when Tom provides the topic and makes my life easier!  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’re interested in eDiscovery for criminal law, this is the webcast for you!

{Side note: with two posts this week from Tom on his ALSP series, his thought leader interview tomorrow and this post, it’s unofficially Tom O’Connor week on the blog!}

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

So, what do you think?  Do you struggle with eDiscovery in criminal cases?  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.

ALSP – Not Just Your Daddy’s LPO, Part Two: eDiscovery Trends

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 also wrote a terrific four part informational overview on Europe’s General Data Protection Regulation (GDPR) titled eDiscovery and the GDPR: Ready or Not, Here it Comes (and participated with me on a webcast on the same topic) and wrote another terrific five part informational overview on Understanding eDiscovery in Criminal Cases.  Now, Tom has written another terrific overview regarding Alternative Legal Service Providers titled ALSP – Not Just Your Daddy’s LPO that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  We covered part one last Thursday.  Here’s part two.

What is an ALSP?

The first consideration in understanding new generation ALSPs is to understand how ALSP is defined. In general, ALSPs are niche companies that specialize in providing such high-demand legal services as:

  • Human Resources
  • IT Services
  • Document Review
  • Contract Management
  • Litigation Support
  • ECA
  • Analytics
  • Discovery and Electronic Discovery
  • Contract Lawyers and Staffing
  • Investigation Support and Legal Research
  • IP Management
  • Due Diligence

Industries such as banking started outsourcing IT services as a means to reduce costs almost 30 years ago. And now businesses and law firms are doing the same thing in the area of document services by turning to these new generation ALSP companies for even routine legal services that are too expensive and time-consuming to do in-house.

According to the Thompson-Reuters Legal Executive Institute report, there are five categories of ALSPs.

  • Accounting and Audit Firms that have a large amount of revenue in legal services. They tend to focus on high-volume, process-oriented work that’s complementary to accounting-audit work.
  • Captive LPOs that are wholly owned captive operations. Often located in lower-cost regions, they are focused on high-volume process work.
  • Independent LPOs, eDiscovery and Document Review Providers who perform outsourced legal work under the direction of corporate legal departments and law firms. They are typically engaged for matter- or project-based work often proactively managed and globally delivered. This category Includes eDiscovery services and document review providers.
  • Managed Legal Services Providers that contract for all or part of the function of an in-house legal team. They typically are engaged for ongoing work within scope and proactively managed.
  • Contract Lawyers, In-Sourcing, and Staffing Services who are providers of lawyers to companies on a temporary basis. Support can range from entry-level document review to highly skilled and experienced specialists.

So while the term ALSP is a reasonable capstone description for the multiple categories of ALSP specialization, it does appear that using only one term may, in some cases, be an over simplification of a complex grouping of services.

Another characteristic that defines an ALSP is the fact that it is not necessarily a law firm and does not engage in the practice of law nor does it necessarily have to be staffed by lawyers. Because of this characteristic, paralegals, legal assistants, and technical staff with the right type of legal expertise are in great demand at the new generation ALSP.  And more and more work is moving in their direction. According to an October 2013 article in ABA Journal, employment at traditional law firms peaked in 2004 and has declined moderately since then.  During the same time period, employment at ALSPs has doubled.

Although litigation and investigation support ALSPs are the third most-used category of ALSPs for law firms (behind eDiscovery and document review), the report found that they are used by just 28 percent of firms. Twenty-six percent of firms use ALSPs for non-legal factual research and 24 percent of firms use them for specialized legal services.

When breaking down the ALSP services used by corporations, there seems to be even more reluctance to adopt them. Regulatory risk and compliance services are the categories that see the most use proportionally, but even those ALSPs see adoption at only 29 percent. The only other category above 20 percent adoption in corporate legal departments is specialized legal services (21 percent).

Eric Laughlin is the general manager for Thomson Reuters Legal Managed Services. He expects continuing growth for ALSPs, saying this about the report:

“The data says that law firms are recognizing ALSPs for more expertise, so there’s a respect there for what ALSPs are doing. And then their experience in the market is that clients are pushing them more to disaggregate. They’re being asked to look at more models by their clients.”

The numbers in the report bear this out. But, as noted above, the uses go well beyond eDiscovery. ALSP services now extend to a wide variety of activities including not just LPO, managed services, HR, general accounting and so on. David Curle, Director of Strategic Competitive Intelligence for Thomson Reuters Legal, said in another panel at Legaltech that these non-traditional activities provide for roughly $8.4 billion in legal services each year.  While still a fraction of the $700 billion total global spend on legal services, it is an incredibly fast-growing segment of the market.

We’ll publish Part Three – Who is actually using an ALSP and why are they using them? – on Thursday.

So, what do you think?  Have you used an ALSP before?  And, as always, please share any comments you might have or if you’d like to know more about a particular topic.

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

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

ALSP – Not Just Your Daddy’s LPO: eDiscovery Trends

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 also wrote a terrific four part informational overview on Europe’s General Data Protection Regulation (GDPR) titled eDiscovery and the GDPR: Ready or Not, Here it Comes (and participated with me on a webcast on the same topic) and wrote another terrific five part informational overview on Understanding eDiscovery in Criminal Cases.  Now, Tom has written another terrific overview regarding Alternative Legal Service Providers titled ALSP – Not Just Your Daddy’s LPO that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

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

Introduction

One of the biggest topics of discussion at the recent Legaltech® conference in New York was Alternative Legal Service Providers or ALSPs.  I was interested in the topic really because I was confused as to what the term ALSP meant. Like several other people I spoke with at the show, I originally considered an ALSP to be just a newer name that marketers had given to legal process outsourcing or LPO.

LPO was, of course, the exporting of legal services to low-wage markets either overseas (off-shore) or in the United States (on-shore). The LPO trend had been fueled by many factors, including:

  • Globalization
  • The rising cost of legal services
  • The growth of the Internet
  • Increased automation of legal processes
  • Developments in data security

In my experience, LPO offerings tended to be focused primarily on low cost document coding or data entry and were utilized primarily by law firms. But the recent rise of ALSP services, which have LPO characteristics, seems to be fueled by corporate law departments that are interested in partners providing software built specifically for their legal and compliance needs.

These growth factors for ALSPs are illustrated in a report from The Thomson Reuters Legal Executive Institute, in partnership with the Georgetown University Law Centre for the Study of the Legal Profession and the University of Oxford Saïd Business School titled The 2017 Alternative Legal Service Study – Understanding the Growth and Benefits of These New Legal Providers (you can download a copy here)  In this global report, more than 800 law firms and corporations were surveyed, and the results indicated that the growing use of a new generation of ALSPs is largely about expertise, not lower costs, as is often assumed.  Other factors in the growing use of ALSPs noted in the study included scalability, client demand for global solutions and greater access to technological innovations.

My focus for the following discussion will be a closer look at the new generation ALSP and the factors that define it.  We will take a look at what an ALSP is, who is actually using an ALSP, why they use them and how they will impact the provision of legal services in the future.

We’ll publish Part 2 – What is an ALSP? – next Monday.

So, what do you think?  Have you used an ALSP before?  And, as always, please share any comments you might have or if you’d like to know more about a particular topic.

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

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

Houstonians, Here’s a Terrific Panel Discussion on TAR Right in Your Own Backyard: eDiscovery Best Practices

Next month, I have the privilege of moderating a panel on the current state of the acceptance of technology assisted review (TAR) with three terrific panelists, courtesy of the Association of Certified E-Discovery Specialists (ACEDS).  If you’re in Houston on April 3rd, you might want to check it out!

The panel is titled From Asking About It to Asking For It: The Evolution of the Acceptance and Use of TAR and it will be held at the offices of BoyarMiller law firm at 2925 Richmond Avenue, Houston, Texas  77098 (their offices are on the 14th floor).  The event will begin at 11:30am and will conclude at 1:30pm.  Lunch will be served!

Our panelists will be Christopher Cafiero, J.D., Southwest Territory Manager of Catalyst Repository Systems (and former trial lawyer), Gary Wiener, Independent eDiscovery Consultant, SME and Attorney and Rohit Kelkar, Vice President of R&D at Servient.  We will discuss several topics related to the current state of TAR, including the state of approval of TAR within the legal community, differences in approaches and preferred methods to TAR, disclosure of the use of TAR to opposing parties, and recommendations for those using TAR for the first time.

If you’re in Houston and you’d like to attend, register by clicking here.  Honestly, I don’t know how many people will be able to attend, so I recommend that you register early (but not often) to make sure you can get in.  If you want to learn about TAR in the Houston area, this is an excellent opportunity!

So, what do you think?  Are you interested in learning about TAR and are you going to be in the Houston area on April 3rd?  If so, we’d love to see you there!  And, as always, please share any comments you might have or if you’d like to know more about a particular topic.

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

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

According to the IGI, Information Governance Continues To Gain Traction: Information Governance Trends

Last week, the Information Governance Initiative (IGI) released Volume III of their State of Information Governance Report – the third (annual) edition of the Report, which is based on “extensive” surveying of Information Governance (IG) practitioners and providers.  So, is Information Governance gaining traction in organizations? (Well, duh, I gave the answer away in the title of this post, didn’t I?)  :o)

I couldn’t find a total number of respondents mentioned in the report, but it does note that the survey “reached an estimated audience of approximately 100,000 practitioners through our network and those of our partners and Supporters” and that “the majority of respondents came from our own community of IG practitioners.”  For what it’s worth.

Regardless, the report contains several findings, including these highlights:

  • Only 2 percent of respondents have never undertaken an IG project. When compared to last year, the number of respondents reporting they have never undertaken an Information Governance project fell by a dramatic 90 percent.
  • There was a 41 percent rise in the number of professionals who say the IG market is clearly identified, with just over a third of respondents (7 percent) agreeing or strongly agreeing that the IG market is clearly defined.
  • There was also a 26 percent rise in the number of organizations with an IG Steering Committee (to 46 percent) and a 41 percent rise in the number of IG leaders with “Information Governance” in their title (to 52 percent).
  • More organizations are also realizing more business value from their data with those extracting value from data rising from 16 percent last year to 46 percent this year.
  • Integration between IG and cybersecurity programs is accelerating, with 48 percent of respondents agreeing that IG is essential to strong cybersecurity.
  • This year, only 4 percent of respondents reported having no active IG projects – a 64 percent drop from last year. However, according to the respondents, the main barrier to IG progress remains a lack of organizational awareness, so there’s still work to be done.

The report cites a couple of factors as driving greater emphasis on information governance: the Equifax breach, which affected 143 million American citizens and new legal and regulatory developments, like the EU’s General Data Protection Regulation (GDPR).  Regarding GDPR in particular, the report states:

“GDPR asks organizations to zero in on the reasons they store data in the first place. Without consent and justifiable reasons for storing the data, organizations are required to delete it. It is a refocus from an attitude of ‘If in doubt, keep’ to one of ‘If in doubt, delete’. Facing a drive for better governance and defensible deletion across at least a subset of their data, organizations are now beginning to more loudly ask those questions that high-profile data disasters raise: Why does this information exist? Why are we holding on to it? What value does it have, and what kind of risk does it represent?”

Needless to say, GDPR will be a major driver in adoption of information governance.

The report is contained within a 63 page PDF, full of detailed information regarding the state of information governance today, but it also includes a two page state of the industry report “quick read” with some of the key findings on pages 3 and 4 (if you want to hit the highlights quickly).  To download a copy of the report, click here (requires an IGI profile to be set up, which is free).

So, what do you think?  Are you surprised by any of these results?  Does your organization have any active IG projects?  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.

Here’s a Conference that Can Be a SOLID Boost to Your Career: eDiscovery Best Practices

Actually, it’s not a “conference” so much as it’s a “summit” – the Summit On Legal Innovation and Disruption (SOLID).  SOLID is an interactive exchange of ideas by doers, innovators and disruptors in the business of law. Speakers and participants will inform, instruct and inspire one another to design and apply solutions that will elevate and accelerate their careers from ‘now’ to ‘next’.  The SOLID West 2018 summit is coming up this month in San Francisco on Thursday, March 15, 2018 (here’s a link to the agenda for the SOLID West summit).

Last week, I spoke with David Cowen, President and Managing Director of The Cowen Group, (which, as many of you know, is a staffing and recruiting firm focused on eDiscovery, Litigation Support, Privacy, Security and Information Governance professionals) and organizer of the SOLID summit program and asked him how SOLID summits are different from other conferences:

“It’s a summit series effecting change at the individual professional level as opposed to the industrial level.  In these summits, individuals can come together and experience a series of TED talks, then connect with peers and colleagues through a series of table talks and then a town hall”, David said.  “These aren’t discussions about what people are thinking and predicting will happen, they are discussions about what people are doing within their organizations today.  There’s no pontification, there’s no “what if”.  It’s all experiential knowledge being shared – what they’re doing, how they’re doing it, why they did it this way and lessons learned.  Focused on the business use case of the technology and what it can do to move your career forward and your business forward.  And, that’s a real differentiator from conferences where people are talking about the next big idea.”

“This ‘TED talk, table talk, town hall’ approach, which is facilitated by the experienced 55 faculty members, helps create a hub of conversation around evolving trends and use cases in the business of law today.  By the ‘business of law’, I mean that critical intersection between next gen legal technology (which includes AI and machine learning, among other technologies) and the impact that’s having on the business of law and the careers of professionals that are trying to innovate and get from ‘now’ to ‘next’.  At the end of each summit, each participant at SOLID gets a 90 day action plan to fill out to identify what each of them will do in the next 90 days to take action on what they just learned, followed up by six working groups conducting ten virtual calls over a six month period (and completing two work product deliverables) to keep enforcing ‘stickiness’ and ‘accountability’.  If you want to go to a ‘mini MBA program’, this is the place to be.”

David also indicated that, in addition to the two SOLID summits each year in San Francisco and New York (and perhaps eventually regional summits as well), they’re also planning to roll out a breakfast workshop series on how to get from ‘now’ to ‘next’ in your career.  As David told me, “It will be a two hour ‘boot camp’ that we’ll conduct in ten cities in the spring, summer and fall of 2018 focused on what it takes to be successful in the business of law.  The idea is that if you don’t take an interest in your own career development and advancement, you’re going to be gone.  And, we want to help people get from ‘gone’ to ‘good’ to ‘golden’.

Golden, indeed!  The SOLID summit series began with the first summit last fall in New York and will return to New York for SOLID East 2018 on September 13 and 14.  To register for the SOLID West 2018 summit (there’s still time!), click here.  This summit is SOLID as a rock!

CloudNine is excited to be a sponsor and participant in the SOLID summit series and my colleague, Julia Romero Peter, will be at the SOLID West summit later this month.

So, what do you think?  Is your career ‘golden’?  Or are you concerned that if you’re not careful, you could be ‘gone’?  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.

NY Appellate Court Reverses Ruling on Discovery of “Private” Facebook Posts: eDiscovery Case Law

In Forman v. Henkin, No. 1. (N.Y. Feb. 13, 2018), the Court of Appeals of New York reinstated a trial judge’s ruling requiring the plaintiff who was disabled in a horse riding accident to turn over “private” photos to the defendant taken before and after her injuries.

But first, this week’s eDiscovery Tech Tip of the Week is about Fuzzy Searching.  When performing keyword searching, you may know what terms you’re searching for, but it’s easy to miss important search hits if the term is misspelled or has OCR inaccuracies.  So, if you’re looking for the term “petroleum”, you can find variations such as “peroleum”, “petoleum” or even “petroleum” – misspellings or OCR errors that could be relevant.  Fuzzy searching is a way to catch many of those variations, expanding the potential recall of your search.  The ability that fuzzy searching provides to find words that are one or two characters off from the correct spelling of the term could enable you to locate important ESI to your case that would otherwise be missed, simply because the term is not spelled correctly.

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

Case Background

In this case regarding allegations that the plaintiff was injured when she fell from a horse owned by defendant and maintained that, since the accident, she had become reclusive as a result of her injuries and also had difficulty using a computer and composing coherent messages.  In particular, she contended that a simple email could take hours to write because she had to go over written material several times to make sure it made sense.  The defendant sought an unlimited authorization to obtain plaintiff’s entire “private” Facebook account, contending the photographs and written postings would be material and necessary to his defense of the action under CPLR 3101(a).  When the plaintiff failed to provide the authorization, the defendant moved to compel, asserting that the Facebook material sought was relevant to the scope of plaintiff’s injuries and her credibility.  The plaintiff opposed the motion arguing that the defendant failed to establish a basis for access to the “private” portion of her Facebook account because, among other things, the “public” portion contained only a single photograph that did not contradict the plaintiff’s claims or deposition testimony.

In February 2014, the trial court ordered the plaintiff to give the defendant pre-accident photos she intended to use at trial, post-accident photos not depicting nudity or romantic encounters, and access to post-accident records of her messages.  However, in December 2015, the appeals court limited the disclosure to photos intended for trial, saying the defendant could not go on a “fishing expedition” for evidence.  Two Justices dissented, concluding the defendant was entitled to broader access to the plaintiff’s Facebook account and calling for reconsideration of that court’s recent precedent addressing disclosure of social media information as unduly restrictive and inconsistent with New York’s policy of open discovery. The Appellate Division granted the defendant leave to appeal to this Court, asking whether its order was properly made.

Appellate Court’s Ruling

In considering that appeal, the Court observed that “a threshold rule requiring [the party seeking disclosure] to ‘identify relevant information in [the] Facebook account’ effectively permits disclosure only in limited circumstances, allowing the account holder to unilaterally obstruct disclosure merely by manipulating ‘privacy’ settings or curating the materials on the public portion of the account. Under such an approach, disclosure turns on the extent to which some of the information sought is already accessible – and not, as it should, on whether it is ‘material and necessary to the prosecution or defense of an action’”.  So, while the Court stated that “we reject the notion that the account holder’s so-called ‘privacy’ settings govern the scope of disclosure of social media materials”, it also stated that “we agree with other courts that have rejected the notion that commencement of a personal injury action renders a party’s entire Facebook account automatically discoverable”.

Nonetheless, the Court acknowledged that “even private materials may be subject to discovery if they are relevant. For example, medical records enjoy protection in many contexts under the physician-patient privilege…But when a party commences an action, affirmatively placing a mental or physical condition in issue, certain privacy interests relating to relevant medical records – including the physician-patient privilege – are waived”.  With that in mind, the Court stated:

“Applying these principles here, the Appellate Division erred in modifying Supreme Court’s order to further restrict disclosure of plaintiff’s Facebook account, limiting discovery to only those photographs plaintiff intended to introduce at trial. With respect to the items Supreme Court ordered to be disclosed (the only portion of the discovery request we may consider), defendant more than met his threshold burden of showing that plaintiff’s Facebook account was reasonably likely to yield relevant evidence.”  So, the Court reversed the Appellate Division order and reinstated the lower court order.

So, what do you think?  Should “private” Facebook posts be discoverable?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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

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