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Electronic Discovery

The Speed of Migration of Legal to the Cloud is Debatable: eDiscovery Trends

How fast is the legal industry moving to the cloud?  And, what is holding some law firms back from migrating to the cloud?  These and other questions were discussed in a recent online discussion among industry experts.

In an article sponsored by ReplyAll on Bloomberg Law (Live Conversation: Making Sense of Legal’s Migration (or Not) to the Cloud), Zach Abramowitz moderated the discussion and introduced the topic as follows:

“The migration of the legal industry to the cloud has been, much like the word migration would suggest, slow and deliberate. Although Fortune 500 companies are using cloud based technology to track everything from their back office to their marketing and sales teams — and (as anyone who’s been through an airport can tell you) all the biggest tech companies in the world like Microsoft, Amazon and Alibaba are competing to offer you cloud storage and related services — many law firms are still insisting on keeping client data behind the firewall… Many of the best legal technology start-ups tell me that their #1 obstacle in selling their product is law firm resistance to the cloud. So, as we kick off this conversation, the question I’d like to start tackling today, is what should be the industry standard (we can discuss that too), but also begin by trying to better understand the disconnect between law firms and the rest of the world. With all the information available, is it rationale for law firms to still hesitate when it comes to the cloud?”

Panelists included:

  • Alma Asay, Founder of Allegory which was acquired last year by Integreon (where Alma is now the Chief Innovation Officer)
  • Dan Baker, Chief of Staff and Director of Legal Operations at Ancestry.com
  • Adam Cohen, Managing Director at Berkeley Research Group
  • Heidi Fessler, member of the Litigation Department and the eDiscovery, Data and Document Management Practice Group at Barnes & Thornburg
  • Bryon Bratcher, Managing Director at Gravity Stack LLC and formerly Director of Practice Solutions at Reed Smith LLP

Here are some of the observations from the panelists:

Asay: “Law firms regularly use private cloud providers, we simply don’t call them that. Legal service providers like Integreon regularly host data for their clients, effectively offering private cloud services, and are well adopted by law firms… Law firms know that they will fight tooth and nail against turning over their clients’ data, and they’re quite sure that service providers that specialize in the legal industry will fight just as hard (or risk never having another client). However, law firms have been less sure about how big companies servicing many different industries would proceed in the face of an order to release data in their possession. This is an issue that has come up time and time again, even as great strides have been made by law firms to understand and accept the benefits of the cloud… I think you’d be surprised how many professionals inside law firms quietly are advocating to use the cloud and recognize the benefits over hosting data inside the law firm, but they don’t feel empowered to execute until the banks do. Just as (supposedly) no one ever got fired for choosing IBM, there is still a sense that no one gets fired for NOT choosing the cloud.”

Cohen: “I think this (the question whether Amazon is handing over client data} is a real issue for some, but it’s not the overriding issue, which is a fundamental ignorance as to the allocation of risk in the cloud and how to deal with it. If you don’t understand the services you are buying, then you can’t assess security appropriately–something lawyers are required to do by virtue of their professional responsibilities.”

Cohen also quoted the headline from this press release “Threat Stack Analysis Reveals 73% of Companies Have Critical AWS Cloud Security Misconfigurations” where Threat Stack, a cloud security and compliance management company, announced the findings of an analysis of more than 200 companies using AWS that revealed nearly three-quarters have at least one critical security misconfiguration, such as remote SSH open to the entire internet.

Baker: “The concern – benchmarked with several large firms – is that cloud solutions may result in a scenario where the cloud provider could read the law firm’s files/email, if the provider wanted to. This could violate privilege or provide alternate, and unexpected, routes of discovery…{With regard to a question from Abramowitz as to whether public cloud providers simply change their terms of service to get law firms comfortable or is legal such small fry for them that they wouldn’t bother} Through a certain lens, yes. Through another lens, there’s booming growth in legal tech – especially surrounding contract and litigation discovery. I expect that public cloud providers will need to update their terms of services to get law firms more comfortable, and that it will be the discovery firms driving the change.”

Bratcher: “Ultimately many law firms are adopting a hybrid approach between a private cloud with a smaller public provider coupled with a cloud area with the larger public providers like AWS or Azure. I would see that trend continuing for the foreseeable future.”

Fessler: “It is hard for those outside of the law firm environment to understand the level of reticence to adopt “new” technology within the legal world. Most attorneys feel an enormous responsibility to keep their client data secure and under their personal lock and key. Unfortunately, this perception of control and security does not equate with fact. It is still common to find otherwise sophisticated attorneys who refuse to use eDiscovery tools and technology and instead running review using Excel spreadsheets. At times this hesitation is also the result of a misdirected drive to reduce legal spend.”

These are just a few snippets from an overall interesting conversation regarding legal’s adoption of the cloud.  Click here to view the entire conversation.  Tomorrow, I’ll have some thoughts about cloud selection and why the question of private or public cloud isn’t the only one you should be asking.

So, what do you think?  Do you think that the legal industry is still slow to adopt the cloud?  If so, why do you think that is?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

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

FTC Cracks Down on Privacy Shield Posers: Data Privacy Trends

Did you ever wonder what happens if a company falsely claims that they are certified compliant with either the EU-U.S. or Swiss-U.S. Privacy Shield framework?  Or falsely claims that they are in the process of being certified compliant?  Apparently, the Federal Trade Commission (FTC) gets on their case about it.

According to ACEDS (California Company Settles FTC Charges Related to Privacy Shield Participation), ReadyTech Corporation, a California company, has agreed to settle Federal Trade Commission allegations that it falsely claimed it was in the process of being certified as complying with the EU-U.S. Privacy Shield framework, which establishes a process to allow companies to transfer consumer data from European Union countries to the United States in compliance with EU law (we covered details of the framework when it was introduced over two years ago).

“Today’s settlement demonstrates the FTC’s continuing commitment to vigorous enforcement of the Privacy Shield,” FTC Chairman Joe Simons commented. “We believe Privacy Shield is a critical tool for ensuring transatlantic data flows and protecting privacy that benefits both companies and consumers.”

According to the FTC’s complaint, the Commission alleges that ReadyTech, which provides online training services, falsely claimed on its website that it is “in the process of certifying that we comply with the U.S.-E.U. Privacy Shield Framework.” While ReadyTech initiated an application to the U.S. Department of Commerce in October 2016, the company did not complete the steps necessary to participate in the Privacy Shield framework. The Department of Commerce administers the framework, while the FTC enforces the promises companies make when joining the Privacy Shield.

The FTC alleges in its complaint that the company’s false claim that it is in the process of certification violates the FTC Act’s prohibition against deceptive acts or practices.

As part of the settlement, ReadyTech is prohibited from misrepresenting its participation in any privacy or security program sponsored by a government or any self-regulatory or standard-setting organization, including but not limited to the EU-U.S. Privacy Shield framework and the Swiss-U.S. Privacy Shield framework. It also must comply with standard reporting and compliance requirements.

This is the FTC’s fourth case enforcing Privacy Shield. It continues the FTC’s commitment to enforcing international privacy frameworks, making a total of 47 cases enforcing the Privacy Shield, the predecessor Safe Harbor framework, and the Asia Pacific Economic Cooperation Cross Border Privacy Rules framework.

As you may or may not know, CloudNine is certified for both the EU-U.S. and EU-Swiss Privacy Shield Frameworks (so, yes, at CloudNine we are “certifiable”).  :o)  Periodically, you have to recertify – in fact, I just completed the recertification process for CloudNine a while back.  It’s good to know that somebody is checking up on companies to make sure that their claims of being privacy shield compliant are valid.

So, what do you think?  Is your organization privacy shield certified?  Are your providers certified?  Please share any comments you might have or if you’d like to know more about a particular topic.

P.S. — Happy Birthday, Kiley!  You’re now officially a teenager!  😮

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

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

Court Rules Search Terms Overly Broad Under Rule 26 in Convertible Top Patent Case: eDiscovery Case Law

In Webastro Thermo & Comfort v. BesTop, Inc., No.16-13456 (E.D. Mich. June 29, 2018), Michigan Magistrate Judge R. Steven Whalen ruled in favor of the plaintiff’s protective order, requesting the narrowing of search terms for ESI production in this patent dispute.

Case Background

The plaintiff manufactures an automobile roof and also a roof-opening mechanism for which it has a patent and claimed that the defendant manufactures a roof-opening mechanism under the name “Sunrider for Hartop” that infringes on their patent. The defendant contended that its Sunrider product is based on prior art, invalidating the plaintiff’s patent.

The defendant requested emails during discovery, but the plaintiff claimed the total emails generated and received by these companies was voluminous and many would encompass matters having nothing to do with this lawsuit. The ESI order from the court contemplated that search terms should be narrowed to exclude extraneous and irrelevant information and that production requests should be limited to eight key custodians and ten search times on each side.

However, the plaintiff contended that the defendant’s proposed search terms were “overbroad, indiscriminate, and contrary to BesTop’s obligations under the Court’s ESI Order,” and despite pre-motion communication between counsel, the parties were at an impasse, leading to the plaintiff seeking a protective order “sparing Webasto from unduly burdensome email discovery, until such time as BesTop propounds reasonable email search requests containing appropriate narrowing criteria.”  The plaintiff also requested an order requiring the defendant to cover costs associated with the plaintiff’s production.

Judge’s Ruling

Judge Whalen stated in his discussion, “The majority of BesTop’s search terms are overly broad, and in some cases violate the ESI Order on its face. For example, the terms ‘throwback’ and ‘swap top’ refer to Webasto’s product names, which are specifically excluded under…the ESI Order. The overbreadth of other terms is obvious, especially in relation to a company that manufactures and sells convertible tops: ‘top,’ ‘convertible,’ ‘fabric,’ ‘fold,’ ‘sale or sales. Using ‘dwg’ as an alternate designation for ‘drawing’ (which is itself a rather broad term) would call into play files with common file extension .dwg.”

Judge Whalen continued: “Apart from the obviously impermissible breadth of BesTop’s search terms, their overbreadth is borne out by Mr. Carnevale’s [plaintiff’s attorney] declarations, which detail a return of multiple gigabytes of ESI potentially comprising tens of millions of pages of documents, based on only a partial production. In addition, the search of just the first 100 records produced using BesTop’s search terms revealed that none were related to the issues in this lawsuit.  Contrary to BesTop’s contention that Webasto’s claim of prejudice is conclusory, I find that Webasto has sufficiently ‘articulate[d] specific facts showing clearly defined and serious injury resulting from the discovery sought….’”

Counsel for the parties was ordered to meet and confer in order to show a good-faith effort in focusing and narrowing the defendant’s search terms, so that the plaintiff’s production of ESI would remain relevant within the meaning of Rule 26 and exclude ESI that would have no relationship to this case.  The defendant was also ordered to submit an amended discovery request with the narrowed search terms within 14 days, after which, a new deadline for production of the ESI would be determined.

Because the opportunity was granted to the defendant to reformulate its discovery request to conform to the ESI Order, the plaintiff’s request for cost-shifting was denied, but Judge Whalen indicated the court “may reconsider” if the defendant “does not reasonably narrow its requests”.

So, what do you think? Is this ruling within the correct interpretation of proportionality under FRCP 26? Please share any comments you might have or if you’d like to know more about a particular topic.

P.S. – The case style refers to the plaintiff as “Webastro”, while the body of the order correctly refers to the plaintiff as “Webasto”.

Case opinion link courtesy of eDiscovery Assistant.

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

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

ILTA Women in eDiscovery Interviews Show the Impact Women Make on our Profession: eDiscovery Trends

We’re just a little over a month away from ILTACON 2018, one of the most important conferences every year in the legal technology world.  This year’s conference is at the Gaylord National Resort and Conference Center at National Harbor, MD.  CloudNine will be exhibiting at the conference and I will be speaking at the conference!  More on that to come later.  But, a current series on the ILTA blog about Women in eDiscovery shows that ILTA is about a lot more than the annual ILTACON conference.

Phil Weldon, a content coordinating volunteer for ILTA, has published a series of Women in eDiscovery interviews on the ILTA blog.  As you probably know, Women in eDiscovery™ (“WiE”) is a nonprofit organization focused on providing women with legal technology education, networking and leadership opportunities.  As you may recall, CloudNine participated in a WiE event last year at South Texas College of Law and will again this year in September (more on that to come too).  Anyway, as Phil puts it:

“In May of 2018, my ILTA colleague Chandra Foreman was able to put me in touch with the Chicago Chapter Board of Women in eDiscovery. As a non-profit organization, WiE holds monthly meetings for legal professional women with a primary focus on education and networking. They also collaborate, fundraise, and mentor. I enjoyed taking the interviews and am sincerely excited to share them with the ILTA community. ‘Women can empower other women’ as Jennifer Roe so eloquently put. I hope you find these interviews as fun and insightful as I did.”

So far, Phil has interviewed Jennifer Roe (Director of the WiE Chicago Chapter), Lekecia Barclay (Litigation Support Specialist at the Securities & Exchange Commission), Ann M. Eisenreich (Division Director at Beacon Hill Legal), Amy Juers (CEO at Edge Marketing) and Diandra Ritchie (Senior Specialist – EEO, Labor & Employee Relations at City Colleges of Chicago).  Great series so far!  Hopefully, I didn’t miss any; if so, I apologize!

Regardless, I always enjoy hearing about other professionals in our industry, how they got started and what they enjoy most about the work they do.  A few years ago, my (then) blog colleague Jane Gennarelli did a series of eDiscovery Professional Profiles (click here to check them out – the first 16 posts in response to the linked search are the profiles that she did).  Maybe we’ll have to kick off a new series!  I’m inspired!

So, what do you think?  Do you know an eDiscovery professional that deserves to be profiled?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

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

One ALSP Exits, Another Prepares to Enter: eDiscovery Trends

The topic of Alternative Legal Services Providers (ALSPs) is always an interesting one, with considerable discussion at this year’s Legaltech® New York conference and my colleague, Tom O’Connor, recently wrote a white paper on the topic for our blog (a four part series here).  They can also be somewhat controversial.  Looks like one existing ALSP is shutting down, while another one (coming soon) is promoting itself to be “Uber for lawyers”.  Hmmm…

Going Out: As reported by Gabrielle Orum Hernández in Legaltech® News and also reported by Bob Ambrogi in his LawSites blog, legal directory Avvo is shutting down its controversial Avvo Legal Services, a service that provides fixed-fee, limited-scope legal services through a network of attorneys.  Internet Brands, the company that acquired Avvo last January, has decided that the service does not align with its business and focus, according to a letter sent by B. Lynn Walsh, Internet Brands’ executive vice president and general counsel, to the North Carolina State Bar last month.

Avvo has faced a number of bar association challenges to its Avvo Legal Services offering, including the New Jersey Supreme Court, which issued an ethics opinion last year barring the service from the state because of the offering’s use of what they determined was improper fee splitting. State bar groups in New York, Virginia, Ohio, South Carolina and Pennsylvania issued similar ethics orders.  But other states, like North Carolina and Illinois, were more open to the service.

Upon acquisition, Internet Brands planned to fold Avvo into its other legal services portfolio alongside brands like Lawyers.com, Nolo and Martindale-Hubbell. However, by April, most of Avvo’s leadership, including former CEO Mark Britton, CFO Monica Williams, CPO Sachin Bhatia, CTO Kevin Goldsmith, and chief legal officer Josh King, had made plans to depart the company.

Coming In: As reported by Ian Lopez in Legaltech® News, Kevin Gillespie, a self described “serial entrepreneur,” believes he’s found a way to leverage tech for lower-cost legal services while managing to comply with these rules. His answer is mobile platform “Text a Lawyer,” an app-based service where a consumer fires off a legal question into the ether and lawyers flock to answer them.

Describing the platform as “Uber for lawyers,” Gillespie told Legaltech News that Text A Lawyer functions via two apps, one for consumers and one for lawyers. He noted that both will be free for download, though the client app charges a “flat one dollar software license fee” per question submitted and a four dollar as an “attorney verification fee,” which includes identity and license verification services. Potential clients are charged $20 (and “some cents” for a credit processing fee) per initial question, which includes a brief discussion with a lawyer, then $9 per follow up question. Clients can then print out the Q&A and use it as needed.

“I figure everyone’s got 20 bucks. So I’m trying to bridge the gap between lawyers, at hundreds dollars an hour, that blue collar Americans cannot afford … with what they can afford,” Gillespie said. “I’ve [tried] many different pricing models, and I keep coming back to that.”

Like an ride-sharing service, the app functions as a marketplace for free agent service providers to profit. In this case, that agent is the lawyer, who collects a fee of $15 per first question and $8 a follow up. Also like a ride-sharing service, users can rate attorneys, though Gillespie said that these ratings are “kept internal” and only used to connect a user “with the best lawyer available.”

“It’s the Yelp approach, except the clients never see them,” Gillespie added.

While not yet available to consumers, Gillespie plans on issuing a beta version of Text A Lawyer in August or September in Oregon and Washington, and he has plans on eventual expansion to all 50 states. He noted that he designed the app “from the beginning” to be “as close as possible” to ethically compliant with RPCs in all 50 states. “There are a couple of states who will have their heads buried in the sand, their bar associations, I mean. [But] there’s nothing you can do about that,” he added.

So, what do you think?  Will the “Text a Lawyer” succeed in gaining bar association approval where Avvo failed?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

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

Court Vacates Order Requiring Defendant to Review and Produce as Much as Three Million Emails: eDiscovery Case Law

As we approach “case week” in a couple of weeks and our webcast on Key eDiscovery Case Law Review for the First Half of 2018 on Wednesday, July 25th, we’re catching up on a handful of cases from earlier this year.  Enjoy!

In Nece v. Quicken Loans, Inc., No. 8:16-cv-2605-T-23CPT. (M.D. Fla. Feb. 27, 2018), Florida District Judge Steven D. Merryday sustained the defendant’s objection to an order requiring the defendant to produce all documentation related to do-not-call requests received between September 2012 and June 2013 and also required the plaintiff to move for class certification by April 13.

Case Background

In this case involving a dozen calls to an individual who had placed her number on the national do-not-call registry but had inquired about a mortgage from the defendant, the plaintiff sued the defendant for calling with an artificial or prerecorded voice, for calling a number on the national do-not-call registry (a violation of 47 C.F.R. § 64.1200(c)), and for calling the plaintiff before “institut[ing]” several procedures required by a Telephone Consumer Protection Act (TCPA) regulation.  The court eventually granted summary judgment on the first two claims, but denied summary judgment on the Section 64.1200(c) claim because of “two predominant disputes of material fact.”

The plaintiff had originally all documentation related to requests received by the defendant requesting that it not contact (or revoking consent to contact) consumers, even though the TCPA contains a four-year limitation for documentation requested.  The defendant objected for several reasons, including the burden and the relevance of the plaintiff’s requests, stating that the requests require collecting and reviewing at least three million e-mails, a review that might cost millions of dollars.  Nonetheless, on May 5, 2017, the magistrate judge partially granted the plaintiff’s motion to compel, calling the plaintiff’s requests “overly broad and disproportionate to Plaintiff’s needs at this stage of the proceedings”, but also “not wholly irrelevant to Plaintiff’s allegations” and ordered the documentation to be provided for the period between September 2012 and June 2013.  The magistrate judge also denied the defendant’s quick motion for clarification or reconsideration of the May 5 order, even after the defendant indicated that compliance would require dozens of employees to spend months on document review and would cost at least hundreds of thousands of dollars.  The defendant objected to both orders, arguing that it had “already produced 12,000-plus pages of records relating to 450,000 phone numbers and individuals,” and that complying with the order “might require 15,000 hours of a Quicken employee’s or of outside counsel’s time.”

Judge’s Ruling

In ruling on the defendant’s objection, Judge Merryday stated: “For too long, Nece has avoided confronting the reality that individualized issues often predominate in putative TCPA class actions involving a dispute about consent or the revocation of consent…The resolution of Nece’s claim will require the jury to parse Nece’s words and to determine when Nece revoked consent to a call. As the February 14 order explains, several ‘unique’ or idiosyncratic facts (including the phrasing of Nece’s comments and Nece’s repeated submissions) contribute to the determination whether Quicken stopped calling Nece within a reasonable time. In this circumstance, Nece’s class-discovery requests impose on Quicken a burden disproportional to the needs of this action. Because the May 5 order clearly erred by requiring Quicken to respond to the requests, Quicken’s objection (Doc. 77) is SUSTAINED, and the May 5 order is VACATED to the extent the May 5 order conflicts with this order.”

As for the plaintiff’s request to extend the deadline for class certification, Judge Merryday stated: “Class-certification discovery remained available to Nece for eleven months. In that time, Nece ‘propounded [sixty-one] requests for production, [ten] interrogatories, and [twenty-five] requests for admission.’…Quicken provided more than ten-thousand records about the putative class.”  However, Judge Merryday allowed the plaintiff to move for class certification by April 13, 2018 (earlier than the plaintiff requested date of August 16, 2018), even though the local rule deadline to do so was December 7, 2016.

So, what do you think?  Should the magistrate judge’s order have been vacated?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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

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

In California, Data Privacy Foresight is 2020: Data Privacy Trends

2018 is certainly on its way to becoming the year of data privacy rights for the individual.  Barely over a month after the General Data Protection Regulation (GDPR) came into effect in the European Union, California has passed a new data privacy law which will give consumers the right to obtain data collected about them, the right to request deletion of the data, and the right to direct a business not to sell the information to third parties.

As reported by the ABA Journal, ARS Technica and Ride the Lightning (among other sites), the California Consumer Privacy Act of 2018 was approved unanimously by the state Senate and Assembly on June 28 and was signed by Gov. Jerry Brown.  The law is set to take effect on January 1, 2020 (which explains my “clever” blog title)… :o)

A legislative bill summary says the law will give Californians “the right to know what PI [personal information] is being collected about them and whether their PI is being sold and to whom; the right to access their PI; the right to delete PI collected from them; the right to opt-out or opt-in to the sale of their PI, depending on age of the consumer; and the right to equal service and price, even if they exercise such rights.”

The bill requires companies to disclose personal data collected when a consumer requests it, up to two times a year, and to delete and stop selling the personal information to third parties upon request.  It also prevents businesses from selling personal information about minors to third parties, unless the parent of a minor less than 13 affirmatively authorizes the sale, or the minor between the ages of 13 and 16 opts in to the sale.

A consumer whose data is hacked is entitled to recover statutory damages of up to $750 in a civil suit when companies fail maintain reasonable security procedures. However, consumers can’t sue unless they 1) first notify the business and the state attorney general, 2) the business doesn’t correct the problem in 30 days and 3) the state attorney general does not bar the suit.  A lot of contingencies and a small damage amount, though that number could add up if several consumers are involved and sue.  Also, intentional violations can bring civil penalties of up to $7,500 per violation.

The group Californians for Consumer Privacy had sponsored a ballot initiative and had gathered roughly 625,000 signatures to get the initiative on the ballot in November, but group chair and ballot question sponsor Alastair Mactaggart agreed to pull the question if the state passed the bill by June 28, the last day in which the question could be pulled from the ballot.

Will other states follow suit?  In 2018, the year of data privacy, I wouldn’t be surprised if they do and do so quickly.

So, what do you think?  Does this law go far enough in protecting data privacy rights of Californians?  Or does it fall short?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

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

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

The Sedona Conference Has You Primed to Learn Best Practices for Handling Social Media: eDiscovery Best Practices

As Tom O’Connor and I discussed in our webcast last month, handling social media in discovery can be challenging.  Now, The Sedona Conference® (TSC) has updated a primer to help with social media issues.

TSC and its Working Group 1 on Electronic Document Retention & Production (WG1) have announced the publication of the Public Comment Version of The Sedona Conference Primer on Social Media, Second Edition.

The first edition of the Primer was published in 2012 (light years ago in social media terms) and was designed to be a useful resource on various information governance and litigation issues, as it established a practical approach for addressing the corporate use and management of social media. Since 2012, however, there has been a proliferation of new messaging technologies and business applications, in addition to major evolution in “traditional” social media platforms like Facebook, Twitter, and LinkedIn – because they have such a long “tradition”, of course :o). There have also been significant developments in the law addressing social media and in the rules of discovery, evidence, and professional responsibility. In light of these developments, this edition of the Primer focuses exclusively on the discovery of social media in civil litigation. Therefore, WG1 recognized a compelling need to update the Primer and has prepared a public comment version of this Second Edition.

After the one-page introduction (Section I of the Primer), Section II of the Primer discusses traditional and emerging social media technologies and the discovery challenges that they present. Section III examines relevance and proportionality in the context of social media. It also explores preservation challenges, collection and search obligations, and the impact of the Stored Communications Act (“SCA”), together with review and production considerations. Section IV describes the impact of cross-border issues on social media discovery while Section V explores authentication issues. The Primer analyzes ethical issues that lawyers should consider in connection with social media discovery in Section VI before ending with a one paragraph conclusion section.  The Primer weighs in at a fairly tidy 58 page PDF file, so it’s a reasonable read.

The Primer on Social Media, Second Edition is open for public comment through September 10, 2018. Questions and comments regarding the Primer may be sent to comments@sedonaconference.org.  And, a webinar on the Primer is scheduled for Wednesday, August 8, 2018, at 1 pm EDT. Further details will be announced by email and on The Sedona Conference website once registration is open. The webinar will give you the opportunity to ask questions and provide and gain additional insight on this important topic.

To download the Primer, free of charge, click here.

So, what do you think?  Do you have challenges in handling social media in litigation?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

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

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

Learn How eDiscovery Case Law from Earlier This Year Can Guide You in Future Cases: eDiscovery Webcasts

Legal precedents set by past case law decisions remain one of the best ways to guide lawyers on how to do their job, especially when it relates to eDiscovery best practices.  Case law examples help lawyers avoid mistakes made by others, as well as saving time and money for their clients.  Are you aware of recent case law decisions related to eDiscovery best practices and what that those decisions mean to your organization?

On Wednesday, July 25th at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Key eDiscovery Case Law Review for First Half of 2018.  So, why the shark?  Once again, we’re conducting our eDiscovery case week (which includes our case law review webcast) on The Discovery Channel’s Shark Week (that’s the other discovery).  Why Shark Week?  Why not?

This one-hour webcast will cover key case law covered by the eDiscovery Daily Blog during the first half of 2018 to enable lawyers to learn from these cases. Key topics include:

  • Is there a template for how parties should cooperate in a Technology Assisted document review?
  • Should a plaintiff be allowed to email all defendant employees to see if they have responsive documents?
  • Will fabrication of text messages result in sanctions post Rule 37(e)?
  • Can Twitter be compelled to produce direct messages between their own employees?
  • Can an individual be compelled to produce private Facebook photos by the opposing party?
  • How have proportionality considerations in the 2015 Federal rules affected scope of discovery?
  • Should a receiving party be granted a quick peek at privileged documents to resolve privilege disputes?
  • Should border searches of electronic devices require a warrant?
  • Can you be sanctioned for discovery violations even after a jury verdict?

As always, I’ll be presenting the webcast, along with Tom O’Connor.  To register for it, click here.  Even if you can’t make it, go ahead and register to get a link to the slides and to the recording of the webcast (if you want to check it out later).  If you want to learn from past eDiscovery case law decisions, this is the webcast for you!

So, what do you think?  Do you think case law regarding eDiscovery issues affects how you manage discovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

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

At Long Last, Apple v. Samsung is Finally Over: eDiscovery Trends

Without a doubt, the case that has generated more eDiscovery Daily blog posts than any other over our nearly eight years of existence has been the Apple v. Samsung case.  We published at least fifteen posts regarding the case since 2012 (click here to search our blog for “Samsung” and the first fifteen posts are about the case) and could have easily published more – if there were more notable eDiscovery issues to discuss.  Now, finally – quietly – it’s all over.

In this Legaltech News article (Apple and Samsung Call a Truce in Long-Running Smartphone War, written by Scott Graham), the author notes that lawyers for Apple Inc. and Samsung Electronics Co. informed U.S. District Judge Lucy Koh of the Northern District of California on Wednesday that “they have agreed to drop and settle their remaining claims and counterclaims in this matter.”  Terms of the settlement were not disclosed.

Koh, who has presided over four trials between the parties, wasted no time, entering an order of dismissal minutes later.

The agreement comes a month after a damages retrial that ended in a $538 million award for Apple. Although Samsung had persuaded the U.S. Supreme Court to adopt a more favorable rule on lost profits in design patent cases, the amount was roughly $140 million more than awarded against Samsung for design patent damages following the parties’ first two trials, in 2012 and 2013. (It was, however, $238 million less than the total originally awarded for patent design and trade dress dilution across all infringing products).

Samsung had vowed to appeal, and also was seeking to claw back $145 million awarded at the first trial on a utility patent that has since been invalidated by the Patent Trial and Appeal Board.  However, the parties have also since been conducting settlement talks, though the details—including who’s been presiding over them—have remained secret.

The first jury that heard the case, in 2012, awarded Apple $1.049 billion for infringement of design and utility patents and for trade dress dilution.  Over the years, the award was revised a number of times and the award dispute even made it to the Supreme Court, where SCOTUS told the federal appeals court to take another look at the $399 million award won by Apple.  This case had it all – adverse inference instruction sanctions on both sides and, of course, the “patentgate” disclosure (by Samsung and their outside counsel firm of Quinn Emanuel Urquhart & Sullivan LLP) of confidential agreements that Apple had with Nokia (which cost Samsung and Quinn Emanuel a $2 million sanction).

Now, it’s all over.  We think.

What would you think if I sang out of tune, would you stand up and walk out on me?  Since I’m a blog writer and not a singer, it’s a moot point, but – just like John Lennon (and Joe Cocker) – I get by with a little help from my friends.  Thanks to Tom O’Connor for his Litigate or Settle? Info You Need to Make Case Decisions white paper last week and to Jim Gill for his post about facial recognition software in airports, I was able to take a week off with my family last week and we were able to give you fresh new posts instead of re-run posts like we have done in past years.  Thanks guys!

So, what do you think?  Will we see a “battle of titans” like Apple v. Samsung again anytime soon?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

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

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