eDiscoveryDaily

By Catherine Ostheimer

Legal innovators gathered in New York City last week for a one-day legal tech conference with customized knowledge session tracks for law firms and in-house legal teams. Topics ranged from turning an in-house team from a cost center to a cost savings center, balancing risk, and innovation, navigating data privacy, and successfully handling emerging and long-term eDiscovery challenges.

Here is a sampling of just some of the incisive commentary and practical direction dispensed.

Tackling Cross Border and Modern Data in eDiscovery

An expert group of speakers discussed the data privacy regulatory and compliance considerations that arise with managing the intricacies of eDiscovery across borders.

Dera Nevin, former data policy and strategy officer at The Blackstone Group, said that planning is a critical first step to global data management. She recommends you know your data location and line it up with common litigation issues you face. When it comes to handling eDiscovery for a cross border matter, consult with the privacy officer or attorney in each jurisdiction, so that you do not open yourself up to contractual claims if you transfer data.

eDiscovery modern data management was another hot topic. Sandra Metallo-Barragan, Proskauer Rose’s eDiscovery Counsel, referenced that expanding data types require additional attention and said it is important to know that employee’s business and personal lives are intertwined, and that while some conversations are in email, others may be in LinkedIn or elsewhere. Now more than ever legal teams should be aware of data sources used.

Jennifer Altman, partner at Pillsbury Winthrop Shaw Pittman, further elaborated on this point, saying that data has become invasive, and that most data systems are siloed and that it is not easy to pull data sources together. Yani Indrajana Ho, associate general counsel at LG, remarked that lawyers within a company are in a position of power when it comes to data management, and that it is important to get ahead of it before your next case: know your data location and how to retrieve it. At 200-year-old Con Edison, associate general counsel Tayo Kinnane explained that there are still a lot of old paper documents, but with the increase in electronically stored data and types, they now have a robust data retention policy in place that is core to their information governance approach. She also said that Con Edison created a cross functional team to identify what systems and apps are being used, what data is produced, and how to protect and mitigate holding data. A parallel effort is the IT team’s focus on streamlining the number of apps used by employees when conducting business.

When it comes to cutting back on the data you hold, Harry Halikias, Cybersecurity Officer, New York Public Library, made this point from a data security standpoint and his organization’s efforts to not hold personal data: “…we practice data privacy by design. If we do not have it, it cannot be stolen.”

Balancing Cost Management and Legal Innovation

Reducing cost remains a constant goal of corporate legal teams. In one of the in-house team track discussions, Andrea Webster, associate director of legal innovation and operations, suggested ways for corporate legal teams to get started on cost savings, including:

• Analyzing current legal processes and consider outsourcing core activity
• Exploring use of alternative fee arrangements (AFAs) for outside counsel firms
• Using cloud-based solutions that can reduce the cost of an installed on-premise solution
• Prioritizing employee training and development so they can effectively use the tech from the onset
• Taking control of outside counsel spend through having open communication with your law firm(s) on how they can consider cutting costs in areas like eDiscovery by evaluating alternative technology

Transforming a Legal Team from a Cost Center to a Cost Savings Center

In another all-in-house legal team discussion, Elizabeth Rancourt-Smith, Director of Legal Operations at Tilson, raised the importance of legal ops to an organization as it helps to reset the over-reliance of doing things the tried-and-true way. “Law is based on precedent; thinking into future does not come naturally to lawyers. But it makes sense in business to be forward thinking.”

Tyson Roy, Director of Legal Innovation, AVP, Senior Counsel at Liberty Mutual, talked about the importance of cross-team collaboration, storytelling and encouraging people to take smart risks to change the way work gets done for the better. In a regular Innovation Hero blog he shares with Liberty Mutual employees, innovation successes and failures are highlighted, a rare occurrence in the corporate world.

Allison Morpurgo, Managing Director, Deputy General Counsel at UBS, said her role has evolved to not only focus on selecting the right outside counsel, but also to make better use of the lawyers and provide them with easy-to-use technology to reduce spending. “We know we are successful when lawyers are willing to try new tech instead of falling back on old ways of working,” explained Morpurgo.

Navigating Data Privacy and Gen AI

Generative AI was on the table for discussion as well. Counsel at Robinson+Cole, Jennifer Driscoll, called it the next wave in legal research. Yet data privacy issues loom. Model development requires detailed data, and if that data includes personally identifiable information, be careful. She also cautioned about use of solutions like ChatGPT, and reminded all that a prompt cannot be deleted, and if an associate enters the details of case, he/she could be waiving attorney/client privilege.

Driscoll also talked about data privacy regulation developments in Europe which will likely impact the US soon, with the EU AI Act being negotiated now. “Once this is out, other jurisdictions will follow,” she predicts.

To learn more about how CloudNine can help you to handle eDiscovery modern data challenges and reduce the cost of eDiscovery, learn more about CloudNine Analyst and/or reach out to us to schedule a consultation.

Catherine Ostheimer is VP, Marketing at CloudNine and has been working in the legal technology industry for 8+ years.

By Catherine Ostheimer

This year’s ILTACON, held at the Walt Disney World (WDW) hotel properties in Orlando covering a 430,000+ square foot campus, was a spectacular event on many levels. For one, seemingly few of the 3,400 attendees complained about the long walks in 90-degree heat required to attend educational sessions and meetings. Energy ran high throughout the conference despite the heat and expansive conference grounds. Secondly, the interest in emerging tech like Generative AI, automation, and short message data eDiscovery solutions has gone from “what is it,” to “how to apply” this tech to legal work for better results now. In other words, the ILTACON community is more tech savvy than ever before. The “tomorrow” of the legal industry has arrived.

Here are our main takeaways from the panels we attended in between meetings with customers and partners.

Understanding How Remote Work and AI Has Changed the Legal World Forever: ILTA 2023 Tech Survey Results

TJ Johnson from Qualitest, Todd Corham from Saul Ewing and others presented preliminary findings from this year’s ILTA Technology Survey. New topics for 2023 included emerging desktop applications, generative AI tools, collaborative apps and hybrid strategies. The full survey results will be published soon. In the meantime, here are high level findings:

• Generative AI is named by most respondents as the emerging tech that will have significant impact on the legal tech profession
• Out of those saying they are applying generative AI to their work; the app that the majority surveyed are using is Chat GPT
• Top three uses for generative AI: initial drafts, writing presentations and brainstorming ideas. Although panelists agreed that it is still too early to have a clear view of all uses
• Cloud adoption continues to rise, with a noted jump in adoption in the past year or two. Reasons for leaning towards cloud include improved access to solution, better data security, and faster release of new features
• In the words of one of the panelists, “As a community, you have risen to the challenge (of implementing tech that helps with remote work) this past year”
• Cloud-based apps are being used primarily for email, time/billing, payroll, document management and eDiscovery
• Well over half of professional staff at law firms are using laptops daily (it will be interesting to see if there is a swing back to desktop use in next year’s survey with many firms opting for work from office policies)

Navigating Tech Deployment in a Hybrid World 

Helpful suggestions were shared in a roundtable panel on how to ensure success with hardware and software deployments, in a post-pandemic hybrid work environment, with a mix of hybrid office consultants, tech provider implementation experts and IT leaders from companies weighing in.

At the start of the discussion panelists covered causes of potential project failures, including lack of buy-in from key stakeholders, little to no project planning, and unclear requirements and accountability. Regarding accountability, there should be a clear view of who is responsible for the project success, as well as who is the lead in getting the work done.

Wade Goldt, COO, Helient, shared tips on involving stakeholders early on. Goldt shared “You need to not just include the executive team early on, but also employees as well as vendors.” Ashleigh Allberry, COO, Maptician stressed the importance of stakeholder communications, and “making it apparent using data why this rollout matters. What benefits to employees, customers and shareholders will it bring?”

Lathrop GPM, Chief Information Officer, Adam Yantorni, along with Allberry, covered what to expect when it comes to tech rollouts in a hybrid environment, and included these tips:

• Implementations are shorter: the expectation is to deliver faster. It is best to put more time into planning, and then make implementation timeframe shorter
• Leadership buy-in is a must: Start dialogue early and understand goals of each leader to align project goals with theirs
• Ownership is needed at all levels: With the hybrid experience now a part of many organizations’ culture, employees need to be involved in the design of a rollout experience. Seek input and support from each firm location from mid-level staff, those individuals who can be responsible for local training and rollout

When it comes getting “new solution” use at all levels, in another session on new litigation management tech, Catherine McPherson, Legal Technology Strategist at Bartlit Beck, shared that to get all to start doing things a new way, sell it as a lifestyle choice, to make your daily work life easier.

Tackling the Growing eDiscovery Challenge: Modern Data

An expert panel provided helpful insights into how to collect, review and produce short message data. Monica Harris, Product Business Manager at Cellebrite provided stats from her company’s research showing that within the private sector, mobile phone data is now closing in on surpassing data collected from computers. Short message data is created from the conversational exchange taking place via a messaging or social media application, like Teams, Slack, Zoom, Snapchat, etc. Complexity in dealing with this data in eDiscovery will continue to intensify as the number of users, platforms and volume and data increases year over year. Tips shared by Nordo Nissi, Goulston & Storrs, and others included:

• Conducting an early case assessment (ECA) to determine the who, what, where, when, why and how of a collection
• Determining scope of collection. Do you need just basic data from a mobile device like SMS/MMS, Contacts, Call History and Media, or on the other side of the spectrum, this plus application data, device information, the full file system and deleted data?
• Consider using the newly released EDRM Text Messaging Metadata Primer as a reference model. This work in progress is designed to promote clarity and uniformity for text and instant message data productions

When it comes to processing, take the time to understand what file format you are dealing with for each data type, i.e., JSON, RSMF, native etc. and know your review strategy and if any ESI protocol is in place. Aim to standardize how data is rendered. On this last point, consider where or not your eDiscovery solution can render data in near native format like CloudNine Analyst can.

This overview covers only one small slice of the rich information shared at this year’s ILTACON. Our biggest takeaway? The legal tech community is stronger than ever, and new ways of getting work done are more than accepted; they are being used today.

Catherine Ostheimer is VP, Marketing at CloudNine and has been working in the legal technology industry for 8+ years.

By Catherine Ostheimer

Being responsive to the growing number of Access Requests and DSARS as a local government organization can be daunting.

First, there’s the data management challenge. State and local groups generate and store vast amounts of data across numerous departments, committees, and systems. Managing and processing this volume of data for eDiscovery for litigation, investigations and public records requests across multiple departments can be overwhelming. There is also the issue of dealing effectively with different formats and sources during the discovery process, such as emails, documents, social media, collaboration app chats, and more.

Privacy and security concerns with sensitive and confidential information and staying compliant with jurisdiction-specific laws and regulations like the General Data Protection Regulation (GDPR) and the Health Insurance Portability and Accountability Act (HIPAA) is an ongoing challenge. Other burdens are resource constraints, including limited budgets, staff, and access to affordable technology.

Here are tips for managing the eDiscovery side of Access Requests for those working at a state or local government organization:

1. Understand the legal landscape. Obviously, you need to familiarize yourself with applicable local laws and regulations governing eDiscovery, including the Federal Rules of Civil Procedure and any other state-specific rules. But you also need to stay on top of ever-changing regulations governing eDiscovery in your jurisdiction.
2. Develop policies. Two important processes to establish for anyone handling eDiscovery for a local government organization are 1) documenting an eDiscovery protocol outlining your organization’s procedures for identifying, preserving, collecting, reviewing, and producing electronic evidence, and 2) implementing a document retention policy, including collaborating with your IT team to put technical measures in place to support the policy.
3. Educate and train staff. Conduct regular training sessions for employees to increase their awareness of eDiscovery requirements and their responsibilities for preserving and producing relevant data, especially emerging data types like texts, chat, and social media data.
4. Engage in Early Case Assessment (ECA). Performing ECA for any cases involving potential litigation will help you evaluate the scope and costs of eDiscovery so that you can make informed decisions about litigation strategy, settlement negotiations and the need for outside experts. Read more on putting an ECA process in place.
5. Regularly evaluate and update processes. Continuously assess and refine your eDiscovery processes based on learnings from previous cases and stay informed about industry best practices and emerging technologies, and technology alternatives that may be easier to use and less expensive than your current technology.
6. Be prepared to scale your eDiscovery work. Beyond Access Requests, it is the unforeseen litigation matters that can catch eDiscovery teams off guard, and in the government area, these cases often involve gathering and reviewing data from hundreds, if not thousands of individuals. Do your research and identify technology and service partners who can help you scale during workload surges.

The CloudNine team has deep experience in handling Access Requests and eDiscovery effectively and efficiently for state and local organizations. Contact us to find out how we can help support your needs with our on-premise and SaaS eDiscovery solutions and an array of professional services.

Catherine Ostheimer is VP, Marketing at CloudNine and has been working in the legal technology industry for 8+ years.

By Rick Clark

Highlights from this event are covered below.

Exceeding Corporate Client Expectations

The first session of the conference, moderated by Richard Clark from CloudNine, focused on introducing new ways of deepening the relationship between corporate in-house and outside counsel. The discussions led by Janice D’Costa from Meta and Amie Taal from Stratagem Tech showcased innovative and clever ways to surpass corporate client expectations. The main topics covered in this session included:

• Bespoke Solutions: In the face of rapidly evolving technology, corporate communication cultures, and cost pressures, outside counsel must present tailor-made solutions to their corporate clients. Cookie cutter approaches are no longer adequate, and legal teams need to adapt to the unique needs of their clients.
• Alternative Fee Arrangements: Flexibility in cost structures, such as catering fees to individual cases or annual spends, can create mutually beneficial partnerships between firms and clients. By aligning fees with client needs, firms can strengthen their relationships and demonstrate their commitment to client success.
• Know How Data Impacts Cases: With data playing an increasingly crucial role in legal matters, it is essential to have up-to-date Information Governance (IG) policies. This ensures that companies are well-prepared for litigation or investigations, which may involve handling communications data from various platforms like Slack, Teams, and messaging apps. Law firms can find ways to help in-house teams with data management if the need exists.

How Law Firms and In-House Teams Win Through Collaboration

• Collaboration Across Legal Issues: Throughout the day, the conference emphasized the importance of collaboration between in-house, outside counsel, and software/service providers to address various legal challenges. Notably, this collaborative approach was evident in discussions about these common challenges for U.K.-based organizations:
  • GDPR: As data privacy regulations continue to evolve, companies must work together to navigate the complexities of GDPR compliance and data protection.
  • The UK’s Response to the EU Artificial Intelligence Act: By collaborating and sharing knowledge, legal professionals can adapt to regulatory changes and leverage AI advancements responsibly.
  • Information Governance: Building on the earlier discussion, experts highlighted the need for robust Information Governance practices to safeguard data integrity and compliance.

To summarize, despite the diverse range of topics discussed at the conference, the main takeaways can be recapped as follows:

• Collaborate: Success in the legal industry hinges on effective collaboration between professionals, clients, and technology. Working together ensures the best outcomes for each engagement.
• Get Your Data House in Order: Legal teams must work closely with IT and other relevant teams to ensure data accessibility for eDiscovery, investigations, or other legal processes. Simultaneously, data that is no longer necessary must have a clear destruction plan to safeguard against unnecessary risks.
• Embrace AI, With Care: While Generative Artificial Intelligence (GAI offers tremendous potential for legal professionals in areas like TAR workflows, content creation, and automation. It is essential to approach its implementation thoughtfully. Most discussions highlighted GAI as an enhancement rather than a replacement for current employee positions.

The Master’s Conference in London proved to be an informative event that underscored the importance of collaboration, Information Governance, eDiscovery/eDisclosure and the responsible adoption of AI in the legal industry. Participants gained valuable insights from a global perspective. CloudNine looks forward to the next set of Master’s Conferences in Columbus, OH (September 14), New York (October 18) and Atlanta (November 9.) Contact us if you are interested in learning more about these events, or how we can help you simplify and reduce the time and cost of eDiscovery.

Rick Clark is VP, Strategic Partnerships at CloudNine and has 20+ years of experience in forensics and eDiscovery. Focused on innovation and education, he co-founded ESI Analyst, now CloudNine Analyst, as well as Wave Software and the Master’s Conference.

By Catherine Ostheimer

A recurring theme surfacing in our discussions with our law firm customers especially is the demand for legal tech software platforms to provide simple, straightforward functionality in an easy-to-use solution. Having an eDiscovery solution that speeds work and helps teams to complete a project on time and accurately is critical, but overpaying for software with an overabundance of features is something many are avoiding in today’s economic climate.

Besides the “simplicity matters” theme, another topic raised is the increasing need to provide sound rationale for technology investments at a time that every dollar spent is being scrutinized. We have learned from our best customers that applying a proven framework to your tech investment discussions with finance teams helps accelerate approvals. The framework is centered on connecting with finance teams in four areas:

• Business strategy alignment: How does technology relate to corporate goals?
• Value proposition: Are you improving efficiency or helping manage costs? What is the total cost of ownership (TCO) and return on investment (ROI)?
• Timing: How does this initiative fit in with current and future priorities?
• Implementation: What is required in terms of money and people to get this done?

Download a copy of our white paper on these themes, “A Return to Value in eDiscovery: Why Simplicity and Cost Matter Now.”

Catherine Ostheimer is VP, Marketing at CloudNine and has been working in the legal technology industry for 8+ years.

By Catherine Ostheimer

Last month’s Corporate Legal Operations Consortium (CLOC) Global Institute was an educational and networking event powerhouse, offering over 75 educational sessions and multiple opportunities for networking for those interested in the latest ways to transform legal and get more work done well, and efficiently.

If you have read some of the excellent recaps already published, you will know that the topics dominating the agenda included generative AI, creating a world class legal function, and improving operations in the CLOC Core 12 legal operations work areas, including contract lifecycle management, case management and eDiscovery.

In her talk “The Next Frontier of Legal Work: Generative AI,” Mary O’Carroll, chief community officer, Ironclad, and co-founder of CLOC, described generative AI as a front burner topic “that has the potential to change everything” when it comes to legal work. She suggested to 1) learn from other industries and to see how they are using it, 2) have clear processes and data governance in place to get the most out of it, and 3) be committed to it as it’s a fast-changing conversation and its capability to evolve legal work, i.e., redlining a contract based on your playbook, changes often.

Many other insights were shared. Key takeaways include advice shared in a panel on building a world class legal function by Megan Niedermeyer, chief legal officer at Apollo.io and Akshay Verma, head of legal operations at Coinbase, on how to implement changes to a risk adverse group: lawyers. Megan explained that the legal department is “the last business to be SaaS-fied.” Today more legal department leaders are open to turning to cloud-based technology to streamline work and improve outcomes. She advised that putting new technology in place successfully requires having a clear vision for your department. She also suggested that a technologist and a project manager are two key hires that will help with implementation. Verma shared that it’s important to remember that people are self-interest based. In rolling out a new way of working, you need to center communications on a common pain point. He pointed out that “…part of the legal ops role is playing psychologist and understanding what drives people.”

Now that the conference has ended, what do you do with this information? How do you make it actionable? Where do you get started?

It’s all about prioritizing effort. As CLOC board member, legal operations leader at Netflix and community rockstar Jenn McCarron said in the opening keynote, one of the biggest myths about change is that transformation means doing a lot. This is a fallacy. Burn out is high when there are 20+ initiatives to direct. “…acts of success are often come about often, as a result of what you don’t do,” she advised.

Couple this sage advice with the practical framework offered by the session “What’s the Plan? Actionable Steps to Create Your 30/60/90 Day Plan and Beyond” and you have solid footing at the starting gate of change. Stacy Lettie, Chief of Staff to the General Counsel of Organon and, and Bob Mignanelli, VP and COO at Haleon, provided a framework for managing the first 90 days of being in a legal operations leadership role.

Example steps shared on getting on the right path to be an effective, transformative legal operations leader are as follows:

First 30 days:

• Understand goals of the legal department overall
• Define the department’s focus: vision, mission, and key objectives
• Determine team structure, reporting line
• Meet with each practice area to learn about the services, pain points, what’s working/not working, identify expectations
• Meet with everyone on your team 1:1, listen to understand what drives them, what frustrates them
• Assess existing processes for matter management, onboarding vendor process, etc.
• Understand tech/services landscape, and what contracts are coming up for renewal
• Identify gaps in process and tech

By the 60-day mark:

• Conduct spend analysis and identify where there may be overlap, where are you paying for items you shouldn’t be paying for, etc.
• Pinpoint and execute “quick wins,” e.g., creating outside counsel guidelines
• Update and document most utilized processes
• Understand current data sources
• Create and begin reporting on metrics

By the 90-day mark:

• Devise your strategic plan, to include:
• Corporate/legal department strategy
• Mission, vision, objectives
• Current state analysis
• Gap analysis-current state versus future state
• Resource requirements
• Success/risk factors and timelines
• Ensure implementation goes well
• Gain executive support
• Put strong project management and change management in place
• Build communication plan, to include celebrating success
• Prioritize: Determine the three to four things that will drive the strategy
• Areas may include tackling outside counsel spend, contract lifecycle management, and/or creating an IP system to drive revenue. (At CloudNine, we believe there is also tremendous opportunity in looking at ways to reduce the biggest cost of litigation, eDiscovery.)

And there you have thoughts on ways to put all you learned into action post CLOC and set yourself up for planning for 2024, which will be here before we know it. Ask for a complimentary consultation with us if you want to learn more about how CloudNine can make it easy for you to take control of your eDiscovery costs and develop smart workflows for managing modern data (i.e., Slack/Teams chat data, texts, etc.) in eDiscovery with our SaaS-based solutions and services here.

Catherine Ostheimer is VP, Marketing at CloudNine and has been working in the legal technology industry for 8+ years.

By Jacob Hesse

Internal investigations and data analysis before litigation even begins can help companies and their legal teams reduce data collection and custodian interview costs, data storage costs, and help refine strategies if litigation does happen.

CloudNine helps clients leverage early case assessment approaches during internal investigations to assist with this process.  Reporting, such as an understanding of existing data types, who is speaking to whom over email, texts, and chats, and testing of potentially relevant terms and phrases can help teams understand the content of their data and formulate a strategy that saves time and money in terms of what must be hosted and reviewed later.

Data Inventory

Our clients often start by identifying the potentially important custodians, actors, and data sources under their control.  Who are the key decision makers?  Who is interfacing most with partners or clients?  Who should be interviewed to discover more?  CloudNine project managers can help clients plan and execute this process, including creating an inventory of what data each custodian has, where it is, and determining what will be needed to preserve, collect, and potentially review it.

Sampling, Searching, Categorizing

As data is identified, CloudNine clients can test key words and phrases against it to find potentially relevant content.  This is helpful when litigation has not yet started, and no search terms have been agreed upon.  The client can find information about the nature of a possible case early, allowing additional time to formulate a strategy.  During this time of investigation, data can be sampled as well, giving a peek into the nature and content of the data without needing a full and expensive document review.  Data can be categorized by period, by source, and by potential relevance.  This categorization can help streamline review later by organizing the data so that most likely relevant portions are handled first.

Reducing Cost

One of the major advantages of Early Case Assessment (ECA) is reducing costs during litigation, especially in data hosting and document review.  By understanding the data early, clients can be more intentional about what gets processed for hosting, review, and production.  Rather than throw all data into a hosted platform and reviewing most or all of it, a much smaller subset of data can result from the ECA process:  “noise” in the form of duplicative, not-relevant, and other out-of-scope data can be eliminated.

CloudNine ECA is built into CloudNine Review.  Data is identified and triaged in a secure, web-accessible platform where clients and specialists at CloudNine can examine it and make decisions about what to advance for full review.  CloudNine’s ECA technology is evolved from LAW and Explore, industry-defining processing applications. Head to our Contact Us page if you are interested in learning more.

Jacob Hesse is VP, Professional Services and Support, and has 20+ years of technology and management experience in eDiscovery, in both law firm and service provider environments.

By Catherine Ostheimer

In a packed room at Seyfarth Shaw’s offices in Chicago, eDiscovery, information governance and privacy experts exchanged points of view and insights at The Master’s Conference last Tuesday.

New ways of thinking about and managing short message/modern data, investigations, and data privacy were raised in a series of panel discussions. Some of the main takeaways from this industry community in the third largest legal market in the U.S. are provided below.

Getting Short Message Review Right

A panel titled “On the cutting edge of short message review” kicked off with a discussion on starting with figuring out what you have in the world of Slack, Teams, text, etc. data. Daniel Kelly of Sidley Austin shared that employees often say that they do not communicate via text for business conversations, but many do. He also shared that it’s important to view messages in a holistic way in the order that each message was delivered, across communications channels, to understand the chain of events and to stay ahead of the narrative related to a case.

Also, in regard to short message review for the financial industry, another speaker mentioned that there are new SEC data delivery standards issued in Jan 2023 that require that If your production will be de-duplicated, you must preserve any unique metadata associated with the duplicate files, make that unique metadata part of your production.

Dealing with eDiscovery Complexity in Investigations 

One discussion with a blend of consultants, law firms and corporate speakers identified ways to best manage investigations at a time that they are becoming more and more complex and expensive. Sunil Shenoi of Kirkland Ellis raised that investigation complexity has arisen due to three main factors: 1) investigations going global, requiring the need for experts everywhere, 2) data amount and types exploding in size, and 3) everchanging laws and regulations. To further expand on having to grapple with new data concerns, he remarked that 15 years ago, a team was required to only pull email for an investigation. Now, it’s not so simple. Others on the panel raised the rising tension being felt between maintaining individual’s data privacy rights, while also supporting a company’s right to review evidence related to an investigation.

Michelle Six, Kirkland & Ellis, offered up two tips when it comes to investigation and data. First, to reduce data complexity, lean in on defensible deletion policies. If you don’t need to keep data per a legal hold, retention policy, or regulatory obligation, get rid of it. Also, rely on technology to make the job easier. She believes that lawyers have an ethical obligation to know what technology can help to handle data more efficiently and to put it in place.

Whitney Becker, CBRE Inc., says you should first approach an investigation and determine at the outset whether there is a likelihood it will lead to litigation. In those circumstances, litigation counsel should be pulled in from the start, to offer benefits like only having to cull data once at the review stage.

Leveraging All Data to Tell the Story in eDiscovery

Taking on a common topic that surfaced throughout the day, the topic of an afternoon panel led by Rick Clark of CloudNine was focused on how to manage modern data effectively and efficiently in eDiscovery.

Paul Noonan, United Airlines remarked on the need to have your eDiscovery and data governance strategy linked and commented that there will be both risk and cost ramifications if you do not tie the two efforts together. Jay Carle of Seyfarth Shaw tied this point to how a company handles data coming from employee phones. He said that he sees prosecutors today being encouraged to see how much a company understands the governance of the use of mobile phones, and how Team/Slack chats, texts, etc. are used in business communications. He shared that it’s important to have and enforce policies on use of alternative forms of communication and have this part of a compliance audit schedule.

Jay also commented that it’s important to preserve linked attachments in modern short format communications, as such platforms are now frequently used to transmit and share documents. Ryan Tilot of Gunster shared that with so many ways available to communicate, he finds that custodial interviews are helpful to identifying all communication platforms being used related to a matter. About data authentication, Rick Clark cautioned that screen shots need to be reviewed carefully, as it’s becoming increasingly easy to fake text conversations.

Rick Clark also raised that it’s important to think about short message communications in the review stage as data, not documents, and that it’s easier and less expensive than you think to render this data in near native format to bring the data to life visually to tell the whole story when prepping for an investigation or potential case.

These were only a few summary points from an information-laden day. If you’d like to attend a future Master’s Conference, check out upcoming 2023 dates and locations. Also, if you’re interested in seeing the only solution available currently that can display a holistic view of all communications data in a near native review, contact CloudNine today.

Catherine Ostheimer is VP, Marketing at CloudNine and has been working in the legal technology industry for 8+ years.

By Kenneth Jones, Tanenbaum Keale LLP 

This article was originally published in LegalTech News on March 10, 2023.

E-discovery is a prime example of an area where legal technology/operations is seeing the challenges presented by legal professionals’ level of familiarity with computing options, particularly those technologies that form the dynamic changes in how professionals communicate.

A significant challenge in legal technology/operations is the level of familiarity with computing options—both established and forward-thinking applications and tools—especially those relating to the dynamic changes in how professionals communicate using the vast array of technologies present in our lives.

E-discovery is one example of this. As many try to wrap their arms around emerging technology areas which are all the rage (Chap GPT, artificial intelligence, etc.), it tends to mask similar long-standing challenges, such as the adoption of predictive coding or records management programs, which reduce overall eDiscovery cost and risk.

But historical problems do not prevent time from inexorably marching on as it relates to human communication. The Pony Express, telegraph machines, telephones, U.S. Mail and countless other mechanisms Exit Stage Left as technology drives change.

Specifically, a wide collection of various “new” forms of communications (Slack, Teams Chat, SMS, Whatsapp, other instant messaging, video content like Zoom/Teams calls, content stored in workflow/task management platforms applications like Github, ServiceNow, Salesforce and others) are increasing leading players in the business connectivity ecosystem.

Rick Clark, Sr. Director of Sales Enablement and Strategy for CloudNine and Co-Founder of the Masters Conference, notes the increased complexity of legal communication processes: “I remember when email created a major shift in business communications and necessitated a new process in legal discovery. Now, I see custodians starting conversations in email, switching to Microsoft Teams, then to WhatsApp and ending in a phone call. Tracking that conversation as evidence demands approaches designed with multi-platform interoperability in mind.”

But what certainly is new are the myriad issues facing law firms and legal on how to deal with “new communications,”  These considerations can perhaps be grouped in three buckets:

• Essential Services Elements
• Policy Ramifications/Opportunities
• Legal Service Opportunities

Essential Services Elements—Basic E-Discovery Considerations

The dynamic nature of legal work processes, and the communications mechanisms driven by this, create unique litigation hold and e-discovery challenges. For example, are mechanisms in place to preserve Slack or Microsoft Teams chat threads?  Are text messages sent by employees cataloged? Are threads in client portals or workspaces retained in a retrievable manner?

Issues here, in many ways, are fundamentally different from those in more established communications methods. One example is data categorization, also known as the metadata describing an element of data. In email (hopefully), users are filing emails into folders. In document management systems, it’s generally required that documents are placed into workspaces relating to clients or matters.

Classification is not limited to email and documents, of course. “New communications” often feature different types of taxonomies. Issue tagging is one. As is the actual type of metadata (application, embedded, file system, user added, etc.) which are identifiable characteristics of communications.

Clark also notes “Personal and work related communications often tend to meld together on an employee’s device. Significantly, many seemingly non-business-related applications are increasingly in play. These include Facebook Accounts, Instagram, YouTube Channel, TikTok and, importantly, Geolocation data.”

It is generally understood that the legal profession has developed generally accepted procedures driven by litigation hold and other regulatory requirements for document and email data/metadata. But it is not surprising that emerging communications tech is still reacting to respond. This is of course common to almost all areas of emerging tech (e.g. ethical issues in the use of Artificial Intelligence, lack of governance in cryptocurrency, etc. being other strong  examples).

So, what law firms need to do within the e-discovery space to develop capabilities to service their clients in the traditional areas (identification, preservation, collection, processing, review and production) within these new communications areas. Here are some pointers.

Utilize a single or fewer platforms which can ingest the various modern data sources, reducing issues relating with accessing data in silos.

• Strive for simplicity and speed. The easier it is to process and work with these new data types, the more likely this data will be intelligently and appropriately processed.
• Be very mindful of security. Walls and controls which exist in core applications (restricted access by practice groups or clients within a DMS for example) should be honored when working with and processing data sources like SMS, Slack, IM, etc. also.

Policy Ramifications/Opportunities—Legal Operations

Not surprisingly, law firms and corporate legal departments are now driven to develop guidelines on what type of communication should and should not be permitted (and supported). Why?

One reason is that, unfortunately, despite employee education programs and the constant stream of information in the public domain about security, a small number of maverick employees or business partners still will prioritize completing a task over reputational welfare or risk.

But that’s not the only consideration—other rationale for protective tools to be leveraged is present. For example, there are often legitimate needs to deploy tools enabling extra-sensitive information—think M&A, medical reports, financial/banking data—to flow in a more secure manner. Data flows via these channels also must be accounted for and included in collections/analysis, despite the capability for example of employees to “burn” messages sent via these ultra-secure platforms.

But technology-based communications mechanisms and feature sets are not the only elements the legal profession should consider with respect to modern communication. Applying legally accepted principles relating to the retention of information, supporting the ability to retain subsets of data as required by litigation holds, and executing this required governance against  apps and data outside the purview of a law firm’s managed application portfolio is a significant challenge.

So how does one tackle this?  Clark notes, “Ensuring procedures to properly retain ‘approved communications’ from within messaging apps/tools—and attempting to prohibit unauthorized employee deletion of the same—is crucial. As is the capability to efficiently ingest and analyze this data when needed.”

Legal Service Opportunities—Business Development

Once procedural elements of coping with modern communications within the e-discovery realm are in place, one can consider applying these capabilities to drive revenue growth.

Opportunities are present for law firms to apply this expertise to their service model.  For example, many clients may reasonably benefit from repurposing of this work—e.g., legal counsel to develop internal guidelines governing areas like litigation holds, technology use guidelines, retention policies, etc. for modern communications.

To cite one element of this challenge, today, many organizations block email applications like Gmail or Hotmail from their browser and via written policy. Arguably, the same approach might be applied to tools like Whatapp, TikTok, or Instagram which seem fairly unrelated to work. And, even for “approved” chat mechanisms (like Teams, Git, Slack, ServiceNow, Salesforce and others), retention periods, the execution of litigation holds and development of an efficient ingestion “on ramp” into common e-discovery platforms is necessary.

Summary

Dealing with all these new data types and issues is not easy. But don’t sweep it under the rug. Without a doubt, modern communications will become increasingly more important within the e-discovery discipline—if not the dominant consideration—in the not-too-distant future.

Kenneth Jones serves as Chief Operating Officer of Xerdict Group LLC, a wholly owned technology subsidiary of Tanenbaum Keale LLP, which provides sophisticated, SaaS-based legal matter management systems and other use cases applied to automate common legal workflows.