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Your “Mashup” of eDiscovery Market Estimates is Even Earlier This Year: eDiscovery Trends

We look forward to the eDiscovery Market Size Mashup that Rob Robinson compiles and presents on his Complex Discovery site each year.  Each of the first three years that we covered it, the Mashup was released in July – with estimates for 2012 to 2017, for 2013 to 2018 and 2014-2019 (in two parts).  Last year, the Mashup was released early, at the end of April for 2015 to 2020.  This year, the Mashup is even earlier: Rob has released his worldwide eDiscovery software overview for 2016 to 2021 now!

Taken from a combination of public market sizing estimations* as shared in leading electronic discovery publications, posts, and discussions, the following eDiscovery Market Size Mashup** shares general market sizing estimates for the software and services area of the electronic discovery market for the years between 2016 and 2021.

Here are some highlights (based on the estimated from the compiled sources):

  • The eDiscovery Software and Services market is expected to grow an estimated 15.31% Compound Annual Growth Rate (CAGR) per year from 2016 to 2021 from $7.997 billion to $16.304 billion per year. Services will comprise approximately 69.9% of the market and software will comprise approximately 30.1% by 2021.
  • The eDiscovery Software market is expected to grow at an estimated 16.61% CAGR per year from $2.279 billion in 2016 to $4.915 billion in 2021. Software currently comprises 28.5% of the market and, by 2021, 74% of the eDiscovery software market is expected to be “off-premise” – which includes cloud-based and other Software-as-a-Service (SaaS)/Platform-as-a-Service (PaaS)/Infrastructure-as-a-Service (IaaS) solutions.
  • The eDiscovery Services market is expected to grow at an estimated 14.78% CAGR per year from 2016 to 2021 from $5.717 billion to $11.389 billion per year. The breakdown of the services market by 2021 is expected to be as follows: 67% review, 19% processing and 14% collection (basically unchanged from last year with review down a point and collection up a point).

Growth rates are up after being down the past two years, with the overall, software and services markets estimated to grow at two percent faster than the estimates from the last two years.

Here are the sources that Rob states were used in compiling the “mashup” (including his own, how clever!):

  • Annual eDiscovery Market Size Mashups – 2012 – 2017, ComplexDiscovery, March 4, 2017.
  • eDiscovery Business Confidence Surveys – Running Listing. ComplexDiscovery. February 28, 2017.
  • Zion Market Research. “eDiscovery Market for Government, Regulatory Agencies, Enterprises, and Law Firms.” November 23, 2016.
  • Markets and Markets. “E-Discovery Market by Solution, Service, Deployment Type, and Vertical – Global Forecast to 2021.” November 2016.
  • Future Market Insights (FMI). “eDiscovery Market Analysis – Global Industry Analysis and Opportunity Assessment.” July 5, 2016.
  • “Worldwide eDiscovery Software Market Forecast, 2016-2020: Back to Basics.” Angela Gelnaw. June 30, 2016.
  • Gartner, Inc. “Market Guide for E-Discovery Solutions.” Jie Zhang. June 30, 2016.
  • S. Department of Commerce, International Trade Administration. “2016 Top Markets Report – Cloud Computing.” April 14, 2016.
  • “Worldwide eDiscovery Services Forecast 2014-2019.” Sean Pike, Angela Gelnaw. December 2015.
  • Gartner, Inc. “Critical Capabilities for E-Discovery Software.” Jie Zhang, Garth Landers. October 6, 2015.
  • Transparency Market Research. “eDiscovery Market – Global Industry Analysis, Size, Share, Growth, Trends and Forecast 2014-2022.” July 6, 2015
  • Markets and Markets. “E-Discovery Market By Solution, Deployment, Industry, & Region – Global Forecast to 2020.” July 2015.
  • Global Industry Analysts, Inc. “eDiscovery (Software and Services) Global Strategic Business Report.” May 28, 2015.
  • Gartner, Inc. “Magic Quadrant for E-Discovery Software.” Jie Zhang, Garth Landers. May 18, 2015.
  • The Radicati Group. “eDiscovery Market, 2014-2018.” Sara Radicati. December 3, 2014.
  • Transparency Market Research. “eDiscovery Market – Global Industry Analysis, Size, Share, Growth, Trends, and Forecast, 2014-2020).” June 2014.
  • Gartner, Inc. “Magic Quadrant for E-Discovery Software.” Jie Zhang, Debra Logan, Garth Landers. June 19, 2014.
  • “Worldwide eDiscovery Software 2014-2018 Forecast.” Sean Pike. May 2014.
  • The Radicati Group. “eDiscovery Market, 2013-2017.” Sara Radicati. August 2013.
  • Gartner, Inc. “Magic Quadrant for E-Discovery Software.” Debra Logan, Alan Dayley, Sheila Childs. June 10, 2013.
  • The Radicati Group. “eDiscovery Market, 2012-2016.” Sara Radicati, Todd Yamasaki. October 2012.
  • Transparency Market Research. “World e-Discovery Software & Service Market Study.” August 2012.
  • Rand Institute For Civil Justice. “Where the Money Goes: Understanding Litigant Expenditures for Producing Electronic Discovery.” Nicolas Pace and Laura Zakaras. April 2012.
  • “MarketScape: Worldwide Standalone Early Case Assessment Applications Vendor Analysis.” Vivian Tero. September 19, 2011.
  • Industry Observer Estimations (Multiple Observers)

So, what do you think?  Do you think the eDiscovery software and services markets are on the rise?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

New Survey Says 75 Percent of Respondents Unfamiliar with China’s New Cybersecurity Law: eDiscovery Trends

Are you familiar with it?

According to a survey conducted by Consilio and released earlier this week, 75 percent of legal technology professionals responding to the survey indicated that they are not familiar with China’s new Cybersecurity Law, which was passed by the Standing Committee of the National People’s Congress, China’s top legislature, in November 2016.  The new law is set to go into effect on June 1.

China’s new Cybersecurity Law will require foreign companies conducting business in the country to localize their data within mainland China which may contain sensitive privacy data or state secrets. Organizations that do not adhere to this provision will face potential financial penalties, including the possible loss of their ability to conduct business in mainland China. Individuals can face civil and criminal penalties, up to and including imprisonment and the death penalty for particularly egregious cases.

For more on China’s Cybersecurity Law, you can read Understanding China’s Cybersecurity Law, by Chris Mirasola on the LawFare blog here.  An unofficial translation of the law can be found on the China Law Translate site here.

Consilio’s survey of 118 legal technology professionals, from in-house law departments, law firms and government affiliated entities, was conducted at the Legalweek | Legaltech® New York 2017 conference held January 31 – February 2.  Some key findings of the survey include:

  • 75 percent of legal technology professionals cited that they are not familiar with China’s new Cybersecurity Law;
  • Only 14 percent of respondents indicated that they are “very concerned” about the new law;
  • Yet, 57 percent of respondents indicated having at least one legal matter that touched China within the last two years (i.e. internal or government investigations, litigation, M&A, etc.), with 27 percent indicating that they knew of at least ten Chinese legal matters that their organizations were involved in during that time.

“China is now the world’s second largest economy, and for global corporations and those that aspire to be global, it is critical for them to have a full understanding of the data requirements and regulatory landscape of that region,” said Dan Whitaker, Managing Director of Consilio’s China operations, headquartered in Shanghai. “Since 2012, cyber walls have been going up in multiple regions around the world, and as countries continue to create new regulations, organizations must continually educate themselves on the quickly evolving nuances of data privacy laws in every jurisdiction, specifically as it relates to the ability to move data in and out of the countries in question.”

In addition to China’s new Cybersecurity Law, when polled about other international compliance laws their organizations are most concerned about, respondents identified the Foreign Corrupt Practices Act, or FCPA as the most concerning (40 percent), with the General Data Protection Regulation, or GDPR (22 percent) and the UK Bribery Act (8 percent) as other regulations respondents are concerned about.

Consilio has prepared a summary infographic to illustrate the results, which can be found here.

So, what do you think?  Are you familiar with China’s new Cybersecurity Law?  Are you concerned about it?  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.

Craig Ball of Craig D. Ball, P.C., Part 2: eDiscovery Trends

This is the sixth (and final) of the 2017 Legaltech New York (LTNY) Thought Leader Interview series.  eDiscovery Daily interviewed several thought leaders at LTNY (aka Legalweek) this year to get their observations regarding trends at the show and generally within the eDiscovery industry.

Today’s thought leader is Craig Ball.  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 almost 2,000 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.

Craig provided so much good information that we decided to publish his interview in two parts.  The first half of his interview was published yesterday.

Speaking of the rise in discourse you mentioned, we’ve seen a recent trend with regard to an emphasis on technology competence for attorneys and we’re up to 26 states that have adopted some sort of technology competence requirement, with Florida being the first state that has required technology CLE for their attorneys.  Do you think the increased emphasis on technology competence will (finally) change the general lack of understanding of technology within the legal profession?

I think those are significant developments. Still, as we take two steps forward, we take one step back. The best example: although we’ve moved forward with the institutionalization of and impetus for competence, the greatest “stick” that we have, sanctions, have become increasingly harder to obtain for eDiscovery malfeasance.  At this point, you must demonstrate an almost murderous intent to get significant sanctions. And, while I’m not troubled by the structure of 37(e) – serious sanctions have always come behind serious misconduct and not mere error – proportionality and the diminished ability to obtain sanctions have sapped the impetus to do more than the minimum.  Quality is still not part of the conversation.

Abuses are still rife.  Wasteful practices are everywhere.  And we still have a very long way to go before we get to genuine competency.  The question is, will three hours of CLE in Florida that you can satisfy in almost any way, without any testing or other check on competency, make a difference?  We could do much more if we decided that competency is something we really want and demand of lawyers.  We still make it optional and easy to avoid.  I admire what California did with their simplified idea of “Learn it, get someone who knows it, or get out”.  It’s one thing to establish that as a series of aspirations and goals – like the nine things you need to know in the California model – but it’s quite another thing to put “teeth” into those obligations.  When it comes to competency, we don’t demand enough of lawyers after the Bar exam.

Too, we close ranks when it comes to malpractice stemming from technical incompetency.  Judges are understandably loath to criticize their friends and colleagues.  Making a pronouncement against a lawyer’s competency or integrity from the bench carries a “long tail” in terms of its consequences.  So judges that otherwise might take lawyers to task feel constrained not to do so except in the most severe cases.  When you only punish the most severe cases of incompetence and malfeasance, you create a false impression that those are the only kinds of cases out there.

When you only punish the most severe cases, any lawyer who might otherwise think “I’d better learn this” will look at those horrific cases and say “I’m never going to do that”.  The problem is that they may do something that is just as bad – they may do it with less intent, less venal motivation – but the outcome will be the same.  If I shoot someone because I don’t know which way to point a gun or I shoot someone because I want to kill them, the law distinguishes between those two, but the mourning family may not – the result is tragedy.  We can forgive one instance of incompetence, but, after a while, if you’re just remaining incompetent and doing things the way you’ve always done them, that’s callous malfeasance.  Every dog gets one bite, but not two, three or four. At some point you must put the dog down and punish the owner.

One of the things that coming to this event makes me think about is what a shame it is that there’s only one of these a year that requires people to come to New York City in the winter.  I long for the days when Legaltech was all over the country and there were many flavors of legal technology conferences that you could attend. I think we are at an inflection point where people have come around to recognizing that they need to learn some of these things, but the resources to do so remain sparse.  There are too few significant events with strong, fresh, engaging components.

For example, the frustration we have in Texas is that if we build it, they don’t always come.  We need something in the marketplace and in the management of the Bars and in the educational process to train lawyers that makes this “keeping up” obligation something that we embrace with greater enthusiasm.  The camaraderie, community, sharing of ideas – a lot of that has turned into YouTube videos.  The “confabs” are almost all gone.  You’ve got these gigantic trade shows of constituencies, but at the local level, there’s very little.

How does a practitioner who can’t justify spending three or four days in New York during the winter have a chance to look at all the wares?  You can’t go to Amazon.com and search for law office management or eDiscovery software with the same ability that you can shop for a vacuum.  That’s a shame. We still communicate info about eDiscovery solutions by word-of-mouth, by hype and so forth.

Take your company, CloudNine.  I know your company to be very competent with a skilled group of people and competitive pricing.  But, how do you break out?  How do you get yourself heard in the marketplace?  There are a lot of great vendors out there perceived as regional or second-tier for no reason except that there is so much noise out there and there is so little ability to compare apples to apples in an objective way.  Options are drowned out by marketing budgets.  Is being good and efficient and cost-effective enough to make you the winner in the marketplace?  I think there is a sense among vendors that it’s not, it’s a gamed system that is all about the marketing money and not about the quality of the offering.

With that in mind and with consolidation within the eDiscovery provider community increasing, where do you see the market heading for eDiscovery providers?

As much as I want to share some optimistic observations (and I do see some things about which to be optimistic), I am deeply concerned about what the coming year is going to bring about for a number of vendors.  We’ve seen consolidation.  It may be bad for the consumers and it may be bad for trade shows as we have discussed.  But, I think it’s about to change and the loss of players that’s coming is going to be in many ways as severe as 2008.  We are seeing enormous pricing pressure and razor-thin margins.  I see efforts being made to generate the appearance of good business and good sales; but when the numbers are crunched and the sales persons take their commissions, a lot of these “good sales” will be unprofitable and unsustainable.

I think we’re going to see the collapse of several operations in 2017.  They can’t defy gravity much longer.  When the numbers start coming in and the flattening is obvious, the VC money gets spooked and people start scrambling to get their investments out, I think we’re going to have another significant shuttering reduction in the number of offerings out there. I’m hoping that will be ameliorated somewhat by startups and so forth, but I have to share with you my candid concern.  It may not all happen in 2017, it may wait until 2018 in the kind of uncertainty and optimism that comes in with regime change.  All of the stunning things that are happening right now may engender lots of litigation.  But, it’s hard to know whether this is good or bad for lawyers and whether it’s good or bad for litigation support.  Many providers may hang on for most of 2017, but it may be the “Wile E Coyote” approach – sooner or later, you look down and realize you’ve run off the cliff.  I’m sorry to be a Cassandra on that topic, but the numbers speak for themselves.  People are bidding on jobs at margins that are unsustainable without either massive cuts in personnel or shortcuts in quality that will entail massive headaches.

We’ve never fully adjusted to the commoditization of eDiscovery services. There are still too many people who remember the old pricing.  There are a lot of things – such as automation and the Cloud – which mean that the heyday of multi-thousand per gigabyte pricing is gone and never coming back.  We cannot build our market around those margins.   It’s like the oil industry – you can build for $100 a barrel oil, but you’d better realize you’re going to see $40 a barrel oil for a lot longer than you may expect.  I think the eDiscovery industry was built for $100 a barrel, but we are selling e-discovery at $25 a barrel.  At least that’s what the margins will look like when it  shakes out.

In addition to what we’ve already discussed, what are you working on that you’d like our readers to know about?

I’ve just relocated on a more permanent basis to New Orleans, Louisiana.  I will always be a Texan, but my body will be in New Orleans.  My goal for 2017 is a personal one: to cut back on the travel.  I’ve been doing 50 to 70 programs around the country and around the world now for many, many years.  I’m like George Clooney’s character in “Up in the Air” – when people ask me where I live, I want to say, “here, I live in an airplane.”  I’m tired of that.  It meant that I was disengaged from community, from friends and family, and I am tired of that. So, I’m going to be more selective in in what I do.  I’m saying “no” to engagements that may make me money, but not bring much joy.  I’m saying “no” to speaking engagements that, in ordinary circumstances, I would have routinely accepted.  Instead, I’m asking myself what I really like to do, where I really want to go, who I really want to speak with and where I really can make the most positive difference.  So, I’m hoping that this year instead of participating in 70 events, it will be more like 25.

But, I plan to use that disengagement to reengage in the areas where I think I can do some good.  Writing more. Celebrating more.  I’m one of those people you meet in life where you say “there’s a guy who needs to drink more”.  And, it’s not really about enjoying drinking, it’s that drinking is part of a social life that I have always made secondary to professional commitments.  I’m fortunate to now live in a city where I have great friends and there is always something enjoyable to do.  I don’t want to be the fool that says “I wish I could do that, but I have this thing to finish for work”.  Life is short and I feel the ticking clock that is held for me by my friends like Browning Marean and Bill Butterfield, who are saying “Craig , live a little”.  No one lays on their deathbed and says “Why didn’t I spend more time at the office?”  Our generation needs to mentor now.  We need to equip younger professionals with a sound moral and ethical compass and the skills with which to succeed within those moral and ethical boundaries.  That’s our true legacy – our children and others we can set on a path to make a positive difference.

Thanks, Craig, for participating in the interview!

And to the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!

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

Today’s the Day for the Best Practices in Keyword Searching Webcast!: eDiscovery Best Practices

Today at 12:00pm CT (1:00pm ET, 10:00 am PT), CloudNine will be conducting a webcast titled Best Practices for eDiscovery Searching via the BrightTALK network.  There’s still time to register for it, if you haven’t already!

Our webcast session will cover goals for effective searching, what to consider prior to collecting ESI that will be subject to search, mechanisms for culling prior to searching, mechanisms for improving search recall and precision, challenges to effective searching and recommended best practices for searching and validating your search results to ensure that they are effective.

We will cover many of the concepts we’ve covered on this blog over the years, showing you how not to get wild with wildcards, how to cull out email signature logos from review, how to expand the recall of searches to capture additional hits that might be missed due to misspellings or poor quality text, how to effectively conduct name searches to maximize hit retrieval and how to account for noise words in your search results.

We will also use external sites to help us check our proposed wildcard terms for variations to ensure that our term isn’t too broad (or too narrow) and we will use other sites to help us determine how large of a sample size we need for testing our search result set and even generate our sample set for us.

And, finally, we will look at relevant case law regarding disputes over search protocol and results.

Karen DeSouza, the Director of Review Services at CloudNine, and I will conduct this hour long webcast to discuss best practices for effective searching that may just help you decide whether keyword search still has a place in your eDiscovery workflow.  Click here to register for today’s webinar.  Hope to see you then!

With all of the hype surrounding Technology Assisted Review, many wonder if keyword search still has a place in eDiscovery.  Perhaps it does, if it’s conducted properly.  Find out today the best practices for eDiscovery searching using keywords and decide for yourself!

So, what do you think?  Is keyword searching dead?  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.

Jason R. Baron of Drinker Biddle & Reath LLP, Part 2: eDiscovery Trends

This is the fifth of the 2017 Legaltech New York (LTNY) Thought Leader Interview series.  eDiscovery Daily interviewed several thought leaders at LTNY (aka Legalweek) this year to get their observations regarding trends at the show and generally within the eDiscovery industry.

Today’s thought leader is Jason R. Baron of Drinker Biddle & Reath LLP.  Jason is a member of Drinker Biddle’s Information Governance and eDiscovery practice and co-chair of the Information Governance Initiative.  An internationally recognized speaker and author on the preservation of electronic documents, Jason previously served as the first 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.  He served as lead editor of the recently published ABA book, Perspectives on Predictive Coding and Other Advanced Search Methods for the Legal Practitioner.

Jason provided so much good information that we decided to publish his interview in two parts.  The first part of his interview was published on Friday and Craig Ball’s interview originally scheduled for today will be published on Wednesday and Thursday of next week (also in two parts).

Since you mentioned the recent trend we’ve seen toward an emphasis on technology competence for attorneys, I was going to also mention that we’re up to 26 states that have adopted some sort of technology competence requirement, with Florida being the first state that has required technology CLE for their attorneys.  Do you think the increased emphasis on technology competence will change the general lack of understanding of technology (and advanced search technologies) within the legal profession?

Doug, I’m happy to say that, in the 36+ years that I’ve practiced law, I’ve never had to meet a CLE requirement – the Massachusetts and the DC bars don’t require it!  (Call me lucky.  I’ve also vowed never to take another bar exam.)  But there is clearly a movement towards states’ adoption of the ABA professional rules, including the comment to Rule 1.1 mentioned above.  And in addition to California’s ethics opinion, there are any number of local courts where a great deal of e-discovery competency has been expected of counsel for some time.  (The Seventh Circuit Electronic Discovery Pilot Program, Judge Paul Grimm in Maryland, and state and federal courts in New York have all led the way on this.)   Anyone who practices eDiscovery in a large, complex case is going to have to confront this fact.   Technical competency is of course also needed in a larger percentage of smaller cases in state and federal court as well, given that the need to search Facebook and related apps, as well as GPS devices and other smart technologies, all will be increasingly useful for handling smaller cases involving personal injury, divorce or employment law.  You just can’t hide from the world that we are in – we are immersed in ESI and increasingly immersed in algorithms and analytics that affect all of our lives.

So, to be technically competent in e-discovery in 2017, you do need to know what you don’t know.  Like the California ethics opinion states, that means either knowing the technical points spelled out in the opinion, or knowing enough to know you need help by going to an expert within your firm or a consultant.  Or to step aside and get a co-counsel to help.  And, I think that will be a trend line that we will see.  I don’t think we are all required by these opinions to be Maura Grossman or Judge Peck, or that we need to get an advanced degree in information science or data analytics (although it might help!).   We just need to know enough to ask questions about what it takes to do a better job in eDiscovery.

The highest goal for the e-discovery bar will continue to be working in a way that is consistent with Rule 1, with a just, speedy and economical approach to litigation.  And, in the information governance arena, we can make ourselves valuable and competent as well, by knowing something about advanced search.   At Drinker Biddle, my colleague Bennett Borden is a partner and Chief Data Scientist of our firm – to my knowledge the only lawyer who holds those two titles at an AmLaw 100 firm.   Bennett has been on a “soapbox” as well, saying that we can apply what we have learned using analytics in eDiscovery to every field of practice at a law firm, whether it’s mergers and acquisitions or employment law or anything.  Our practice group routinely is called upon to advise and be part of an ongoing firm-wide discussion of how clients need insight into their large data sets.

We all know where these lines are going.  In terms of technology, at least, the world is not going backwards.  We’re not heading to a place where computers are getting less smart – just the opposite.  Whether you agree with me that the pace of change is itself accelerating,  or just think change is happening, we are in a world where (for the rest of our lives) we are going to be confronting new apps and new technologies.  And, as lawyers, we need to understand the implications across a range of engagements across all legal domains.

In addition to what we’ve already discussed, what are you working on that you’d like our readers to know about?

A few things come to mind: One is that the Information Governance Initiative celebrated its third anniversary during this year’s Legaltech.  Under Barclay Blair and Bennett Borden’s stewardship, the IGI has grown now to 25+ supporters from the legal tech community.  The IGI is widely recognized as a robust “think tank” providing thought leadership about IG topics.  Aside from white papers and benchmark studies, what we have focused on in the last couple of years is holding a Chief Information Governance Officer (CIGO) summit and, this year, that will take place on May 10 and 11 in Chicago.  As we have in the last two years, we will endeavor to gather 60 or 70 “card carrying” members of the IG profession – people who are in a leadership role within IG at their respective organizations.  Many of those who come are de facto Chief Information Governance Officers except that they have some other title on their business card.  This year we will again have a serious conversation about what it means to be a leader in IG.

I have written a recent article in Ethical Boardroom (a magazine out of the UK that may not be very well known in the US, but has really good content regarding corporate governance issues), that I would like to be a theme for 2017 and going forward: how to involve the boards of directors in companies in participating in oversight of information governance issues, to essentially deputize them as fiduciaries of IG in some sense.  Through Sarbanes-Oxley and through the efforts of many companies, board members have developed expertise on cybersecurity issues, and there have been many articles about how you can get involved in that.  But, I think there’s a broader conversation than just data breach issues which encompasses IG – and I have written an article on that.  I’ve also been interested in data ethics issues including moderating a panel at the last annual ACC meeting in San Francisco, so I’ll also be talking about algorithmic bias this year as well.

The last thing that I’ll bring up which is very close to my heart is that, since 2007, I’ve been asked to lead a workshop with my fellow organizers, called the DESI (Discovery of ESI) VII workshop series at the International Conference of AI and Law (ICAIL).  The format of the workshop is that people come and present work that they’ve done, either research papers or even just position papers of 4 or 5 pages.  So, it’s a very easy lift to be part of a very smart community of PhDs and lawyers talking about sophisticated topics.

This year, the workshop will be held on June 12 at King’s College in London.  In prior years we’ve had workshops in Barcelona, Rome, Beijing, Pittsburgh, San Diego, Palo Alto, as well as once before in London itself.   Now, we’re back in London, and I encourage all of your readers to attend and consider participating by putting in a paper.  Maura Grossman and Gordon Cormack graciously have agreed to be the opening keynote speakers at this year’s workshop, which will be especially focused on identifying and protecting sensitive information in large collections.  This is an eDiscovery problem in complex litigation involving privileged documents, but it’s also a problem for privacy related materials (like PII and PHI), and a problem that comes up in audits and internal investigations as to what is proprietary and what can be provided.

Filtering content is also a problem in terms of allowing public access to the vast digital archives of government.  In the case of White House email, we’ve been accumulating emails since the 1990s and there will soon be close to a billion emails that are in existence at the National Archives.  One cannot, however, walk into the National Archives and see any of those e-mails, at least any time soon.  One can walk in and see paper records — but the large and growing collections of e-mails and certain other forms of electronic documents remain off limits because of the sensitive nature of content scattered throughout the collections.  In fact, it may be many, many decades before the vast bulk of NARA’s e-mail collection is made available to the public.  So, that’s an issue that I’ve been writing and speaking on, and that I trust will be discussed at DESI VII.  I will also be speaking on this subject at CeDEM 2017, an upcoming e-Democracy conference being held outside of Vienna, Austria this coming May. 

Thanks, Jason, for participating in the interview!

And to the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!

Don’t forget our webcast tomorrow: Best Practices for Effective eDiscovery Searching at noon CST.  Click here to register!

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.

Jason R. Baron of Drinker Biddle & Reath LLP, Part 1: eDiscovery Trends

This is the fifth of the 2017 Legaltech New York (LTNY) Thought Leader Interview series.  eDiscovery Daily interviewed several thought leaders at LTNY (aka Legalweek) this year to get their observations regarding trends at the show and generally within the eDiscovery industry.

Today’s thought leader is Jason R. Baron of Drinker Biddle & Reath LLP.  Jason is a member of Drinker Biddle’s Information Governance and eDiscovery practice and co-chair of the Information Governance Initiative.  An internationally recognized speaker and author on the preservation of electronic documents, Jason previously served as the first 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.  He served as lead editor of the recently published ABA book, Perspectives on Predictive Coding and Other Advanced Search Methods for the Legal Practitioner.

Jason provided so much good information that we decided to publish his interview in two parts.  The remainder of his interview will be published on Monday and Craig Ball’s interview (also in two parts) will be published on Wednesday and Thursday of next week.

What are your observations about LTNY this year and how it compared to other LTNY shows that you have attended?

It certainly has had a different look and feel this year, given that it’s now Legalweek in its branding.  (Although some of us old timers still will always refer to it as Legaltech).  I was very impressed with the lineup of speakers, despite the fact that several of the names that have routinely appeared year after year, like myself, were not speaking this year.  Instead, it seems there has been a broader reach that goes beyond eDiscovery, including a whole set of people who are in the data analysis and forensics world.

I really liked the keynote on day one.  I previously had read Andrew McAfee’s book, The Second Machine Age – and I certainly agreed with his observation in the keynote that we are not only in an era of accelerating change but that the pace of acceleration is itself accelerating.  Part of McAfee’s presentation was about how, up until about a year ago, predictions were that it would take about another decade or two for a software program to beat the world’s best Go player.  The speaker showed articles from 2015, from publications like The Wall Street Journal, that talked up the complexity of the game Go.  The speaker noted how Go is intuitive, that the game progresses in complexity, and the really interesting thing is that, unlike chess, the best Go players in the world really have no idea how they do it.  They simply intuit, by looking at the 19 x 19 grid, as to a winning strategy.  And yet, remarkably, this past year, a machine did beat the world’s best Go player – a decade ahead of time in terms of the predictions! 

McAfee went on to highlight another element, true in both Go and chess, which will be increasingly true in every domain in which machines are learning, namely: that machines are filled with surprises.  They not only do better in some domains now than the best human, but they go about doing tasks in ways that are different than humans.  McAfee illustrated a move in Go that the machine did that no human would ever do; it so surprised the best player in the world that he got up out of this chair and walked around the room, as he just couldn’t believe it (in part because it seemed like a move that a novice would make).  And yet the machine won that game.  So, we’re actually at an inflection point where humans are learning from software how to play these games both better and differently (i.e., more like a computer).

Now, you can add to these examples to illustrate a larger point of special interest to the lawtech crowd: that we are closer and closer to experiencing a “Turing test” moment in a number of domains, where it is increasingly difficult to distinguish AI from human responses.  Because we are living in a world where things are happening at such an accelerated pace, it wouldn’t surprise me, in five years, that Legaltech (oops—Legalweek) will be mostly about the law of AI and robots – including the ethics of handling extremely smart robots that mimic human behavior and then some.  I am not a believer that soon we will be in peril based on the world being taken over by super-intelligent machines.  But I do believe that we will be increasingly reliant on software, and that software will perform at a level that the Alexas and Siris of the future will seem to be our buddies, not just limited automated personal assistants.  We won’t even need screens anymore — we’ll simply be giving verbal instructions to these devices.  You already see that increasingly with not only Amazon Echo’s Alexa but in smart dolls and a range of other products.  But all this also means that Alexa and the other devices are accumulating data (ESI) from the people using them — all of which is grist for the e-discovery mill.  This world of IoT, smart devices, and smart analytics, is what McAfee and others are talking about: the acceleration in technological change is itself accelerating!

I think all of this means an even more interesting Legaltech of the future. Predictive coding technology was the hot topic at Legaltech about four years ago, after Judge Peck issued his ruling in DaSilva Moore.  (I think there were a dozen or more panels on technology assisted review and predictive coding that year.)  More recently we’ve seen a wave of panels on information governance and data analytics – which I plead guilty to being a part of.  As I said, I think we are now looking at a world of smart devices, IoT, AI, and robotics that will soon dominate the conversation in raising lots of ethical issues.  Indeed, I just read that in the EU an effort has been initiated to have a committee looking into the ethics of robots and human interaction with robots.  So, we are living in very, very interesting and exciting times.  That’s what you get when you’re living in an exponentially growing world of data. 

Last year, there were a few a notable case law decisions related to the use of Technology Assisted Review.  How do you think those cases impacted the use and acceptance of TAR?

I think you’re seeing a more sophisticated level on the part of a greater slice of the judiciary in predictive coding cases; it isn’t simply the same cadre of judges providing the rulings.  There are also new rulings in the UK, Ireland, and Australia, and that is all good.  I’m not going to talk in detail about any one case, but I think that there is a trend line that can be seen where the lurking question in complex, document-intensive e-discovery cases is whether a party acted reasonably in not using some form of advanced search and review techniques, like technology assisted review.   As Judge Peck said in the Hyles case, we’re not there yet, but it seems to me that’s where the hockey puck will be soon.

If I’m right, and the burden will be to explain why one didn’t use advanced search methods, it follows that clients should be demanding the greater efficiencies that can be obtained through such methods. Granted, you have to get past a certain level of financial risk in a case to justify use of advanced search methods.  Obviously, employing keywords and even manual searching in very small collections is still perfectly viable. But when you’re in complex litigation of a certain size, it is unfathomable to me that a major Fortune 500 corporation wouldn’t at least game out the cost of using traditional manual search methods supplemented by keywords, versus the use of some advanced software to supplement those older, “tried and true” methods.  As you know, I am a very big advocate for all of us looking into these issues, not just to benefit clients in eDiscovery but also across all kinds of legal engagements.

I realize I have been an evangelist for advanced search techniques.  So let me just quote, for the record here, a couple of sentences I’ve written as part of an Introduction to the book Perspectives on Predictive Coding and Other Advanced Search Methods for the Legal Practitioner (link above):  “As the book goes to print, there appear to be voices in the profession questioning whether predictive coding has been oversold or overhyped and pointing to resistance in some quarters to wholesale embrace of the types of algorithmics and analytics on display throughout this volume.  Notwithstanding these critics, the editors of this volume remain serene in their certainty that the chapters of this book represent the future of eDiscovery and the legal profession as it will come to be practiced into the foreseeable future by a larger and larger contingent of lawyers.  Of course, for some, the prospect of needing to be technically competent in advanced search techniques may lead to considerations of early retirement. For others, the idea that lawyers may benefit by embracing predictive coding and other advanced technologies is exhilarating.  We hope this book inspires the latter feeling on the part of the reader.”

Since you have mentioned your book, tell us more about its contents.

This book was a labor of love, as no one will be getting any royalties!  Michael Berman originally suggested to me that this volume would be a useful addition to the legal literature, and over the next two-plus years he and I, with the able assistance of Ralph Losey, managed to pull off getting the best minds in the profession to contribute content and to work towards publication.  I think this is a volume that speaks not only to practitioners “inside the bubble” (i.e., at Legaltech or at places like The Sedona Conference®), but also to a larger contingent of lawyers who don’t know about the subject in any depth and wish to learn.  These are lawyers who earnestly want to be technologically competent under ABA Model Rule 1.1, and who are aware of a growing body of bar guidance, including the recent California Bar opinion on e-discovery competence.   I think more and more, especially in complex cases, such competency means being at least aware of emerging, advanced search and document review techniques.  That may not exactly be easy for some lawyers (especially in my age cohort), but I am sure it will be easier for the generation succeeding us. 

As for some specifics, Judge Andrew Peck wrote the book’s Foreword, Maura Grossman and Gordon Cormack were very generous in not only submitting an expert, original chapter (“A Tour of TAR”), but also allowing us to reprint their glossary of TAR terms.   Phil Favro provided a supplement to his leading article with Judge John Facciola on seed sets and privilege, and Judge Waxse’s important (and controversial) law review article on courts being called upon to apply a Daubert test for advanced search is included.

Most of the 20 chapters in the book are original. There is a really excellent chapter about antitrust law and predictive coding, by Robert Keeling and Jeffrey Sharer.  There is a wonderful chapter on emerging e-discovery standards by Gil Keteltas, Karin Jenson and James Sherer.  Ronni Solomon and her colleagues at King & Spalding wrote a chapter on the defensibility of TAR for a big firm on the defense side.  The late Bill Butterfield and Jeannine Kenney wrote a chapter spelling out from the plaintiff’s side considerations about how to use predictive coding in a fair way.  William Hamilton supplied a much-needed chapter discussing predictive coding for small cases.  Vincent Catanzano, Sandra Rampersaud, and Samantha Greene contributed chapter on setting up TAR protocols.  There are several other chapters talking about information governance written by Sandy Serkes, Leigh Isaacs, and including a reprint of Bennett Borden’s and my law review on “Finding the Signal in the Noise” (with a new coda).  Part of the book provides perspectives from other leading PhDs whom I’ve worked with during the TREC Legal Track and at other workshops, including Doug Oard, Dave Lewis, and William Webber.  Bruce Hedin and colleagues at H5 supplied a thought provoking chapter talking about standards in the field in the use of advanced search. Kathryn Hume educates us on deep learning.   Michael Berman and I (with co-authors), and Ralph Losey, each supplied additional articles rounding out the volume.

Although no one expects the book to be a best-seller on Amazon, I really believe the 650 pages of text will be of interest to readers of your column Doug, and so I do recommend checking it out while supplies last (kidding)!

Part 2 of Jason’s interview will be published on Monday.

And to the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!

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

Google Required to Hand Over Foreign Stored Emails to Justice Department: eDiscovery Case Law

In the ruling In re Search Warrant No. 16-960-M-01 to Google, Pennsylvania Magistrate Judge Thomas J. Rueter ordered Google to comply with a search warrant to produce foreign-stored emails, disagreeing with the U.S. Court of Appeals for the 2nd Circuit’s ruling in the Microsoft Ireland warrant case, where Microsoft was not ordered to provide access to emails in that ruling.

In August 2016, the court issued two search warrants, pursuant to section 2703 of the Stored Communications Act (SCA), which required Google to disclose electronic data held in the accounts of targets in two separate criminal investigations to agents of the FBI.  Each account holder resided in the US, the crimes they are suspected of committing occurred solely in the US, and the electronic data at issue was exchanged between persons located in the United States.

Google partially complied with the warrants by producing data that is within the scope of the warrants that it could confirm is stored on its servers located in the US, but refused to produce other data required to be produced by the warrants that was stored on servers located out of the US, relying on the recent decision of a panel of the US Court of Appeals Second Circuit, Matter of Warrant to Search a Certain E-Mail Account Controlled & Maintained by Microsoft Corp., 829 F.3d 197 (2d Cir. 2016), where the Second Circuit denied the government’s efforts to compel Microsoft to provide emails in that case.

In ruling that Google has to comply with the warrant in full, Judge Rueter stated that “Under the facts before this court, the conduct relevant to the SCA’s focus will occur in the United States. That is, the invasions of privacy will occur in the United States; the searches of the electronic data disclosed by Google pursuant to the warrants will occur in the United States when the FBI reviews the copies of the requested data in Pennsylvania. These cases, therefore, involve a permissible domestic application of the SCA, even if other conduct (the electronic transfer of data) occurs abroad.”

Judge Rueter also indicated that he “agrees with the Second Circuit’s reliance upon Fourth Amendment principles, but respectfully disagrees with the Second Circuit’s analysis regarding the location of the seizure and the invasion of privacy”, noting that “[e]lectronically transferring data from a server in a foreign country to Google’s data center in California does not amount to a ‘seizure’ because there is no meaningful interference with the account holder’s possessory interest in the user data. Indeed, according to the Stipulation entered into by Google and the Government, Google regularly transfers user data from one data center to another without the customer’s knowledge. Such transfers do not interfere with the customer’s access or possessory interest in the user data.”

Judge Rueter also noted that the searches would occur in the US, stating that “Even though the retrieval of the electronic data by Google from its multiple data centers abroad has the potential for an invasion of privacy, the actual infringement of privacy occurs at the time of disclosure in the United States.”  As a result, Judge Rueter granted the Government’s motions to compel Google to comply with the search warrants.

So, what do you think?  Should the location of the data or the location of the searches for the data determine whether it is subject to foreign data privacy considerations?  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.

George Socha of BDO: eDiscovery Trends

This is the fourth of the 2017 Legaltech New York (LTNY) Thought Leader Interview series.  eDiscovery Daily interviewed several thought leaders at LTNY (aka Legalweek) this year to get their observations regarding trends at the show and generally within the eDiscovery industry.

Today’s thought leader is George Socha of BDO.  Co-founder of EDRM, George is a Managing Director in BDO Consulting’s Forensic Technology Services practice. Named an “E-Discovery Trailblazer” by The American Lawyer, he assists corporate, law firm, and government clients with all facets of electronic discovery, including information governance, domestically and globally. Prior to joining BDO, George spent 16 years as a litigation attorney in private practice before starting his own consulting firm focused on e-discovery issues in 2003. He received his law degree from Cornell Law School and his undergraduate degree from the University of Wisconsin-Madison.

What are your observations about LTNY this year and how it compared to other LTNY shows that you have attended?

ALM made several changes this year:  Legalweek, not just Legaltech, and an entry fee for the exhibit hall.  I gather traffic in the exhibit hall was down from last year; maybe that meant fewer people just showing up for free stuff or perhaps there were fewer serious shoppers as well.  From what I heard, sessions generally were well attended.  If ALM was hoping for a re-energized Legaltech, I don’t think they got there.

Some years, Legaltech is abuzz with the newest catchphrase, such as “early case assessment” or “predictive coding.”  No pithy phrase left to the fore this year.  There was, however, a recurring theme.  Growing concerns over cybersecurity seemed drive a level of interest in and lend a degree of urgency to information governance in a way we have not seen in the past.  A major problem, folks seemed to say, was the security of data.  A way to help address that problem, better governance of the data.  Part of the means for achieving better governance, turning to eDiscovery tools and techniques.

This past year was an important year for EDRM with the acquisition of EDRM by the Duke University School of Law.  What was the driving force behind the decision for EDRM to be acquired by Duke and how do you think it will impact where EDRM goes from here?

For several years, Tom Gelbmann and I had been looking for a new home for EDRM.  Tom was ready to retire.  I did not want to run EDRM on my own.  And in any event, it was time and past to find an established institution that could provide for a more solid future than any one, two or three individuals could do.

Last year, we were put in touch with the folks at Duke.  From the first discussion it looked like a good match, and I am pleased to be able to say that the first months have gone well.   Tom is now fully retired and Duke is now been taking over the operation of EDRM.  While Tom may be fully retired, I continue to be very actively involved in EDRM and will be for the foreseeable future.

Duke will hold an EDRM workshop this spring, as we have in the past.  The focus of that workshop will be on 1) developing Technology Assisted Review (TAR) standards, both for the bench and the bar, 2) beginning development of standards for data analytics across all phases of the EDRM diagram, and 3) working on General Data Protection Regulation (GDPR) issues, particularly development of the US code of conduct.  Most likely, there will be a couple more activities as well.  The conference will be at Duke (May 15 through 17) and it will follow much the same format as we have used in the past.

Duke can bring to bear a depth and breadth of resources Tom and I never could match, opening up opportunities that we lacked the bandwidth to pursue.  For example, this fall Duke will convene a conference in September, at the Duke Law School, focusing on the TAR standards under development.  In addition, Duke just launched a rebuilt EDRM website, with a new look and better navigation.

One recent trend we’ve seen is with regard to an emphasis on technology competence for attorneys and we’re up to 26 states that have adopted some sort of technology competence requirement, with Florida being the first state that has required technology CLE for their attorneys.  Do you think the increased emphasis on technology competence will change the general lack of understanding of technology within the legal profession?

I would so much like to be able to say “yes, I think those efforts will accomplish those goals”.  However, I’m not so certain how successful they really will be.  CLE requirements are met by attendance, not by demonstrating competence.  Simply to mandate attendance at a CLE by itself is not sufficient to ensure increased competence.

It also is not clear, to me at least, that there is any consensus as to what constitutes technological competence.  Are we talking about the ability for a lawyer to write a document himself or herself using a word processing program?  Or are we talking about an ability for a lawyer to handle the technological components of certain parts of the eDiscovery process?  Are we saying that lawyers ought to be able to make forensically sound copies of the contents of a hard drive?  Are we saying that they are to understand at some level what it means to make forensically sound copies of a hard drive?  Or are we talking about some other level of technological competence?

Another recent trend we’ve seen is a move toward SaaS automation, with not only certain providers making a splash by offering SaaS automation technology, but also “big boys” in the industry (such as kCura and Ipro) moving toward offering their own SaaS automation solutions.  What do you think the move toward automation will mean for the eDiscovery space?

“Automation” means many different things, depending upon which portion of the eDiscovery and larger legal technology space you focus on.  SaaS automation is only a piece.  For some time now, providers have been automating portions of the eDiscovery process, such as relying on automated steps to facility loading data into a platform, for example, or using TAR to improve the review workflow.  We only will see more of this.

We are beginning to see more effective use of data analytics at all stages of the EDRM diagram, from information governance through presentation.  Similarly, I think we are going to see more and more effective use of artificial intelligence across the full spectrum.  You can take that same concept and expand it out further. It’s not only for eDiscovery, but for all facets of the practice of law.  There are a growing number of people and organizations that are trying to figure out how technology can enhance what lawyers and their support staff are capable of doing.

In addition to what we’ve discussed about EDRM, what are you working on that you’d like our readers to know about?

Perhaps not surprisingly a significant part of my focus these days is the use of data analytics across all phases of the EDRM model as well as in related areas, such as information governance and cybersecurity.  It is not man versus machine; it is people and technology working together.

Thanks, George, for participating in the interview!

And to the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!

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