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Electronic Discovery

Today’s Webcast Will Teach You Key Case Law for 2019 and How it Affects 2020: eDiscovery Webcasts

2019 was another notable year for eDiscovery case law with several significant rulings that stand to impact eDiscovery practices, the admissibility of evidence and the potential of sanctions for discovery violations.  How can these key case law decisions affect discovery within your organization?  Today’s webcast that will discuss key case law rulings from last year and their impact on this year – and beyond.

TODAY at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Important eDiscovery Case Law Decisions of 2019 and Their Impact on 2020. In this one-hour webcast that’s CLE-approved in selected states, we will cover key 2019 case law decisions covered by the eDiscovery Daily blog and what the legal profession can learn from those rulings. Topics include:

  • Biometric Fingerprint Scanning and Privacy
  • Non-party ESI Requests in Litigation
  • Social Media Trends and Judge “Friending”
  • Password Provision and Fifth Amendment Protection
  • Staying Discovery while a Motion to Dismiss is Considered
  • Case Law Trends in Ephemeral Messaging App Discovery
  • Case Law Trends in Mobile Device Discovery
  • Sanctions Trends under Rule 37(e)
  • Sanctions and Case Strategy
  • Inadvertent Disclosures and Sanctions

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 how key case law rulings from last year can impact this year, this webcast is for you!

Just a reminder that Legaltech® is part of Legalweek and will be held from February 4 through 6 at the New York Hilton Midtown.  And, CloudNine will be once again exhibiting at the conference, at booth 3000 in America’s Hall 2.  And, we’re once again excited to be co-sponsoring the annual #DrinkswithDougandMary cocktail reception with Mary Mack, Kaylee Walstad and the rest of the EDRM team!  This is our fourth year and we’re grateful to Marc Zamsky and Compliance Discovery for co-sponsoring as well.  It will once again be at Ruth’s Chris Steak house and will happen Wednesday, February 5 from 4-6pm.  You can register to attend here.  And, as I told you on Wednesday, we will be conducting another NineForum education series of TED-talk discussions from our booth, so please check that out as well!

So, what do you think?  Are you big on case law and like to second guess judicial decisions?  If so, please join us!  And, as always, please share any comments you might have or if you’d like to know more about a particular topic.

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

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

Legaltech 2020 Preview Edition: eDiscovery Trends

As you can tell by the new snazzy custom CloudNine NYC logo, Legaltech® begins in exactly one week!  Yes, I know that Legalweek® begins on Monday, but the heart of the week is the Legalweek conference.  Hey, I remember when the “T” in Legaltech was capitalized!  So, what’s happening this year?  Let’s take a look.

One thing that’s happening is that CloudNine will once again be at the show in a big way!  Of course, we will have a booth in America’s Hall 2 (booth #3000), but that’s not all.  On Tuesday and Wednesday, February 4th and 5th, CloudNine will launch its new NineForum Discovery Education Series where prominent and highly respected eDiscovery and litigation support experts will deliver 9 TED-style talks, 20 minutes each, covering important topics impacting the legal community.  We’ve got a great list of eDiscovery thought leaders lined up for our second annual NineForum, so if you are at the show, come check it out.  The schedule for the topics and speakers, along with everything else CloudNine at Legaltech is available here.

Not only that, but on Wednesday, February 5th from 4pm to 6pm is the 4th annual Drinks with Doug (as in me!) and Mary (as in Mary Mack!), sponsored by EDRM, CloudNine and Compliance Discovery Solutions.  Meet the new boss, same as the old boss!  ;o)  Believe it or not, you can still register here.  Once again, we have a ton of people who have already registered and, trust me, you don’t want to be left out.  We’re going to take over Ruth’s Chris Steak house.  Again.

Anyway, as always, there are some interesting sessions happening at the show this year.  Here are some of the highlights.  Side note: ALM has set up the Legaltech site this year where you have to click “Learn More” for each session to get the full description of it – very annoying!  I’ve opened them all up and captured them, so you don’t have to.  :o)  Next week during the show, I’ll cover the main conference sessions each day that relate to eDiscovery, Information Governance, Cybersecurity and Data Privacy to give you a complete sense of options.  In the meantime, here are some notable sessions to check out at the show:

Tuesday, February 4:

11:30am – 12:30pm:

Tech Matters: Managing Legal and Ethical Issues at the Cutting Edge of eDiscovery

In just 10 years the case law around eDiscovery AI & Analytics has exploded. Over 100 published opinions specifically address TAR and Predictive Coding–evaluating complex and nuanced issues like defensibility, workflow design, protocol negotiation, and transparency obligations. In the meantime, dozens of state bar associations have imposed ethical obligations for lawyers to maintain technical competency, including within eDiscovery. Thomas C. Gricks III will lead an educational panel of experts covering the key legal issues around eDiscovery and technology.

Key takeaways:

  • Review the jurisprudence around technological competency obligations
  • Survey the key case law governing the application of machine learning to eDiscovery
  • Understand the potential ethical issues around technology

Speakers: Tom Gricks III – OpenText; Judge Andrew Peck – DLA Piper; David Stanton – Pillsbury Winthrop Shaw Pittman; Andrea D’Ambra – Norton Rose Fulbright

2:00pm – 3:00pm

Are you TAR? Who Cares. How to Focus on what a System Does Rather Than on What it is Called

There is no question that machine learning is a key piece of the eDiscovery solution. Join this session to cut through the noise of terminology and learn the different functionalities, use cases, and methodologies necessary to evaluate the right tool for your needs. Jeremy Pickens, Ph.D. will lead an educational lecture to demystify the nomenclature, explain eDiscovery machine learning in plain language, and help attendees understand strengths and weaknesses along with workflow best practices. With nearly 50% of corporate legal teams having reported using some form of TAR already and another 80% expecting to increase spending on machine learning tools, now is the time to bring yourself up to speed.

Key takeaways:

  • Learn how to evaluate and compare different approaches and their relative strengths and weaknesses
  • Understand the terms and definitions of eDiscovery machine learning tools: TAR, Predictive Coding, CAL, Clustering & Concept Browsing
  • Review actual case metrics and statistical breakdowns of different workflows and their impact on the review process

Speakers: Ethan Ackerman – Morgan Lewis; Emily Cobb – Ropes & Gray; Jeremy Pickens – OpenText; Robert Keeling – Sidley Austin.

3:30pm – 4:30pm:

With Over $1B in Venture Backed Capital, Could We be on the Verge of Another Tech Bubble?

If you’re head’s spinning while trying to keep up with the recent explosion of legal AI companies & capraise pressers of the past couple years, this session will slow things down for you.  We’ll map out the new LegalTech landscape, key innovations, trendlines, and of course all the expectations that come with that hype. We’ll also profile the biggest players in the VC space and how they’re reshaping our profession.

Key takeaways:

  • Solution landscape of LegalTech startups per area of focus
  • Heatmapping the hottest growth areas of legal innovation
  • Profiling VCs funds that are investing most heavily in legal AI companies, and why
  • Business of law implications

Speakers: Tess Blair – Morgan Lewis; Brad Blickstein – Blickstein Group; James Goodnow – Fennemore Craig; Alex Nwaka – Touchdown Ventures; Wade Peterson – Fredrikson & Byron, P.A.; Christine Chalstrom – Sadie Blue Software.

Wednesday, February 5:

9:00am – 10:00am:

Plenary Session – Blockchain and Emerging Technology Researcher Bettina Warburg

With a gift of clearly explaining complex—and confusing—technologies, Blockchain researcher Bettina Warburg educates executives in leveraging emergent technologies including AI, IoT, and others. Click here to view her TED talk on how blockchain will transform the economy.

Speaker: Bettina Warburg, Blockchain researcher, entrepreneur and educator, Co-founder, Animal Ventures, Tech on Politics.

11:00am – 12:00pm:

Mobile Data: Issues in Data Privacy and Data Protection

Mobile data has become arguably the most important source of information in litigation, investigations, and just about every form of data discovery—and data privacy and data protection are arguably the biggest challenges with mobile data. Have we lost the battles over data privacy and data protection with our data exposed for all to see? Is more evidence a bad thing? Join us for a lively conversation as leading authorities in legal forensics and mobile technology discuss and debate the vital mobile data issues of the day and discuss mobile protocol best practices.

Key takeaways:

  • Key privacy issues posed by mobile data
  • Best mobile practices from leading authorities in legal forensics & mobile technology
  • Business & discovery implications of mobile technologies

Speakers: David Horrigan – Relativity; Gail Gottehrer – Law Offices of Gail Gottehrer; Ed McAndrew – DLA Piper; Ines Rubio – BSI; Ruth Hauswirth – Cooley LLP; Shahaf Rozanski – Cellebrite, Inc.

1:30pm – 2:30pm:

Your Career in Data Discovery, Data Privacy, and Data Protection

Legal careers are changing rapidly, and technology is a major force driving these professional opportunities. No longer are career paths siloed between law and technology—instead legal technologists in a variety of roles are changing what it means to be a legal professional—especially in data discovery, data privacy, and data protection. The wave that brought us the chief information officer a few years ago is now creating opportunities for new roles such as data privacy officer, chief information security officer, data science attorney, and chief transformation officer. In this session, we’ll examine these new career opportunities with perspectives from legal professionals and legal recruiters.

Key takeaways:

  • Career statistics & trends in data privacy and related fields
  • Certifications & degrees that matter most
  • Salary ranges for various positions
  • Business implications

Speakers: David Horrigan – Relativity; Jared Coseglia – TRU Staffing Partners; Ines Rubio – BSI; David Kilgore – Rackspace; Scott Milner – Morgan Lewis; Kelly Twigger – ESI Attorneys, E-Discovery Assistant.

Thursday, February 6:

9:00am – 10:00am:

Judicial Foresight is 2020 at Legalweek: A View From the Bench

Join us for ALM’s open-to-all legendary Judicial Keynote Session as the panel discusses the cases that made (or missed) the ALM headlines in 2019-2020.  Caselaw discussions will focus on the ever changing landscape of data and biometric privacy, privilege disputes, spoliation, recent news in iPhone forensics and social media discovery in litigation.   The panel will also survey the audience to provide meaningful feedback on ethic obligations under the ABA Rules.

Speakers: Hon. Timothy Driscoll, Justice of the Supreme Court, State of New York; Judge Andrew Peck, Senior Counsel, DLA Piper; Hon. Willie J Epps, Jnr, United States Magistrate Judge, United States Western District of Missouri; Patrick Oot, Partner, Co-Chair, Data & Discovery Strategies Practice Group, Shook, Hardy & Bacon L.L.P.; Hon. J Michelle Childs, United States District Judge, District of South Carolina.

12:30pm – 1:30pm:

“7 “Reasonable Steps” for Legal Holds of ESI and Other Documents

A session based on the wildly popular book published by ARMA International, you’ll learn about the 7 “reasonable steps” and get an update on where things have changed since the original publication.

Key Takeaways:

  • Learn about the 7 “reasonable steps”.
  • Understand how expectations have changed over time.
  • Gain actionable knowledge that you can apply to your handling of ESI.

Speakers: John Isaza, Esq – Rimon, P.C.; John Jablonski, Esq – Gerber Ciano Kelly Brady LLP.

That’s just a sampling of the sessions at Legaltech next week.  If you’re there, look me up at the CloudNine booth, especially during the NineForum sessions!  Hope to see you there!

So, what do you think?  Are you going to Legaltech next week?  It’s just a week away!  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 Rules Defendant’s Production Need Not Be Lost in Translation: eDiscovery Case Law

In NY Machinery v. The Korean Cleaners Monthly, No. 2:17-12269-SDW-ESK (D.N.J. Jan. 6, 2020), New Jersey Magistrate Judge Edward S. Kiel, noting that “Rule 34 does not address which party has the obligation to translate documents into English” denied the plaintiffs’ application seeking to compel the defendants to translate documents served as part of their document production.

Case Background

In this case involving allegations unfair competition, false advertising, defamation, false light and trade libel (among other allegations), the plaintiffs wrote to the defendants in April 2019 asserting various deficiencies in the defendants’ discovery responses, including this statement:

“Defendants’ document production contains numerous documents, including emails, that appear to be written in Korean or Japanese. Plaintiffs have incurred the expense of obtaining certified English translations of documents contained in their production. We expect Defendants to promptly produce certified translations of these documents.”

The parties continued to exchange correspondence relating to discovery disputes, which included the plaintiffs’ demand that the defendants provide certified translations of documents and a dispute about a telephone-status conference on September 6, 2019 and whether a judge ordered the defendants to provide certified translations of Defendants’ document production by September 22, 2019.

Judge’s Ruling

Judge Kiel noted: “The question before the Court is: Who bears the cost of translating foreign-language documents produced in response to a request for production of documents? There is no clear answer in the Third Circuit.”

But, Judge Kiel also stated: “The Court, however, finds the analysis and decision in Nature’s Plus Nordic A/S v. Natural Organics, Inc. 274 F.R.D. 437, 439 (E.D.N.Y. 2011) to be persuasive and adopts it herein.” {emphasis added}  Judge Kiel noted that ruling “held that Rule 34 ‘d[oes] not provide the district court with any authority to direct the party producing documents to translate them and that such orders violate the well-accepted principle that each party bear the ordinary burden of financing his own suit… and that each party … is expected to bear any special attendant costs.’…Thus, absent a showing of ‘prejudice to [the requesting party for] undue delay,’ the party responding to document demands has no obligation to provide translations to foreign-language documents.”

Noting that “Plaintiffs do not claim that the documents produced by Defendants in response to Plaintiffs’ discovery demands are irrelevant” and that “to satisfy their obligation under Rule 34, Defendants produced all documents responsive to Plaintiffs’ request, including the foreign-language documents at issue”, Judge Kiel denied the plaintiffs’ request to have the defendants translate the documents or shift any of the costs for translating the documents to the defendants.

So, what do you think?  Should parties be responsible for translating foreign language documents they produce?  Please let us know if 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.

A Different Type of Throwback Post, Along with ACEDS and Legaltech Updates: eDiscovery Best Practices

This isn’t your typical Throwback Thursday post.  For starters, it isn’t Thursday, it’s Friday (yay!).  And, it’s not so much of a throwback on a topic we’ve covered in the past, but rather a shout-out to a new article from an eDiscovery Daily alum!  And, we have an update on an ACEDS Houston event from yesterday and reminders of some CloudNine events coming at Legaltech!

For those who have been reading the blog since the early years, you may remember our colleague Jane Gennarelli, who used to provide a weekly post in the early years of the blog on various aspects of litigation support and eDiscovery, especially from a project management viewpoint.  Even though Jane hasn’t written on our blog for several years, we have continued to partner on projects from time to time with her and Jim Feuerstein and their team over at Labor Street consulting.

Jane has written a new article, available on her Labor Street site, titled You need that when???.  In the article, Jane talks about two different emergency scenarios in actual litigation cases – anybody who has worked in litigation for a while has probably seen similar “fire drills” and discusses how one turned out well, while the other didn’t turn out so well.  The key to success on the one that did work was treating the effort and applying sound project management techniques including up-front planning, providing instructions to the team and confirming understanding of those instructions, and monitoring the work.  Jane always has some great advice on project management best practices, so I encourage you to check it out!

Yesterday, we had our first ACEDS CLE luncheon of 2020 for the Houston chapter (of many, hopefully!) at The Houston Club in downtown Houston.  If you’re Houston-based, you missed a great lunch sponsored by Compliance Discovery Solutions and X1 and a terrific Information Governance CLE presentation by Todd Brown and Lisa Cromwell of Access Sciences!  Here’s a Linkedin post courtesy of Jean Rivers about the event.  More to come as the year progresses!

Finally, let the countdown begin!  Legaltech® is part of Legalweek and will be held from February 4 through 6 at the New York Hilton Midtown.  And, CloudNine will be once again exhibiting at the conference, at booth 3000 in America’s Hall 2.  And, we’re once again excited to be co-sponsoring the annual #DrinkswithDougandMary cocktail reception with Mary Mack, Kaylee Walstad and the rest of the EDRM team!  This is our fourth year and we’re grateful to Marc Zamsky and Compliance Discovery for co-sponsoring as well.  It will once again be at Ruth’s Chris Steak house and will happen Wednesday, February 5 from 4-6pm.  You can register to attend here.  And, as I told you on Wednesday, we will be conducting another NineForum education series of TED-talk discussions from our booth, so please check that out as well!

So, what do you think?  Are you attending Legaltech this year?  If so, please check out our NineForum session series!  And, as always, please let me know your thoughts or if you have a topic that you’d like to suggest.

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.

Plaintiffs’ Failure to “Hurry” Leads to Denial of Motion to Compel: eDiscovery Case Law

Sorry, I couldn’t resist… ;o)

In Hurry Family Revocable Trust, et al. v. Frankel, No. 8:18-cv-2869-T-33CPT (M.D. Fla. Jan. 14, 2020), the Florida District Court judge denied the Plaintiffs’ Motion to Compel Production of Documents and Request for Sanctions, ruling the motion to be untimely, given that the extended discovery deadline had passed, and also rejected the plaintiffs’ argument that the defendant had willfully avoided producing certain emails.

Case Background

In this dispute involving a former employee of the plaintiffs and claims that he used their confidential information and trade secrets, the Court entered a Case Management and Scheduling Order (CMSO) in January 2019 establishing various deadlines, including a discovery deadline of July 26, 2019, and a trial date of February 3, 2020.  The CMSO warned the parties that “[t]he Court may deny as untimely all motions to compel filed after the discovery deadline.”  In May 2019, the plaintiffs filed a motion to modify the CMSO and the Court extended the discovery deadline to August 9, 2019, but also cautioned the parties, however, that it would “be disinclined to extend…the [discovery] deadline[ ] further.”  Nonetheless, the plaintiffs sought to modify the CMSO two more times – the second time after the discovery deadline on August 12, 2019 – but the court denied both motions, stating after the second one:

“The Court has already extended the discovery deadline in this case to August 9, 2019, at the Plaintiffs’ request. The Court has also repeatedly warned Plaintiffs that it would be disinclined to extend deadlines further. Yet Plaintiffs filed this third motion to modify the Case Management and Scheduling Order on August 12, 2019, after the extended discovery deadline had passed…..As for the documents that Plaintiffs claim Defendant has failed to produce, Plaintiffs were aware of those missing documents since August 6 and/or 7, 2019, and failed to file a motion to compel prior to the discovery deadline. As the Court advised in its Case Management and Scheduling Order, ‘[f]ailure to complete discovery within the time established by this Order shall not constitute cause for a continuance.’”

Roughly four months after the Court’s August 20 Order, the plaintiffs filed an instant motion to compel after the plaintiffs received five emails from third parties that were not produced by the plaintiff.  The plaintiff requested an order directing that: (1) the defendant’s “email accounts, cloud storage, and digital devices” be subjected to a “third party search” for responsive documents at his expense; (2) “[Frankel] be precluded from testifying or offering evidence on issues related to categories of discovery withheld by [Frankel];” and (3) “adverse inferences be made against [Frankel] related to categories of discovery withheld by [Frankel].”

Judge’s Ruling

Noting that “Hurry waited to submit the instant motion until four months after the discovery deadline and only two months before trial”, the court stated: “Hurry’s proffered excuse for this extended delay is unpersuasive. When pressed on the matter at the hearing, Hurry conceded that it knew about the Koonce and FINRA emails by no later than early August 2019. It also admitted that it elected to place the instant motion on the ‘backburner’ while it dealt with its motion for summary judgment. Hurry’s evident lack of diligence in pursuing its motion to compel alone is fatal to that request.”

Continuing, the court stated: “Even were that not the case, Hurry has not shown that it is entitled to the relief it seeks. The central premise of its motion is that Frankel willfully avoided producing the Koonce and FINRA emails. In both his response and at the hearing, however, Frankel persuasively argued that his failure to produce these emails was not purposeful, but stemmed from the fact that the emails were not detected during the search Frankel conducted in connection with Hurry’s production requests. Frankel also noted he informed Hurry of the parameters of that search in advance, and Hurry did not object to those parameters.”

So, what do you think?  Should identification of new emails from third parties justify re-opening discovery?  Please let us know if 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.

NineForum is Back for Another Year at Legaltech!: eDiscovery Best Practices

It was such a success last year, we decided to do it again this year!  At Legaltech, CloudNine will once again be conducting NineForum – our series of TED-style talk sessions right from our booth!  And, we have another terrific group of eDiscovery thought leaders to present on great topics!

On Tuesday, February 4 and Wednesday, February 5, prominent and highly respected eDiscovery and litigation support experts will once again deliver 9 TED-style talks, 20 minutes each, covering important topics impacting legal professionals at CloudNine’s Legaltech booth in America’s Hall II (#3000) at the New York Hilton.

Here is a list of the speakers and sessions we have put together for this year’s NineForum series:

Tuesday, February 4th

Session 1: 10:30-10:50am

Speaker: Tom O’Connor, founder and Director of Gulf Coast Legal Technology Center

Topic: Do’s and Don’ts of a 30(b)(6) Witness Deposition

Session 2: 11:00-11:20am

Speaker: Philip Weldon, Manager, eDiscovery & Practice Technology at Fried Frank

Topic: 5 Secrets to “Crushing” eDiscovery Processing in 2020

Session 3: 1:00-1:20pm

Speaker: Mike Quartararo, President of ACEDS

Topic: Skills that eDiscovery Professionals Need to Succeed in 2020

Session 4: 1:30-1:50pm

Speaker: Mary Mack, Chief Legal Technologist at EDRM

Topic: Bold eDiscovery Predictions for 2020:  What to Expect and How to Prepare

Session 5: 3:30-3:50pm

Speaker: Rick Weber, President of Elijah Ltd.

Topic: The Threat Within:  Protecting Against Employee Data Theft

Wednesday, February 5th

Session 6: 10:00-10:20am

Speaker: Robert Conley, VP Forensics and Strategic Operations at Rational Enterprise

Topic: A Day in the Life of Practical Information Governance

Session 7: 10:30-10:50am

Speaker: Kelly Twigger, Founder of eDiscovery Assistant and Principal of ESI Attorneys

Topic: Five Most Significant eDiscovery Cases of 2019:  Their Impact on 2020 and Beyond

Session 8: 12:00-12:20pm

Speaker: Joy Murao, Founder and CEO of Practice Aligned Resources

Topic: Foresight is 2020:  Why Legal Professionals Should Be More Proactive in Maximizing Technology Benefits

Session 9: 12:30-12:50pm

Speakers: Bradette Groves, Director of Project Management and Neil McLean, Discovery Consultant of Complete Legal

Topic: Transforming Your Plaintiffs Practice:  Leveraging eDiscovery to Maximize the Value of Your Case

CloudNine’s CEO Tony Caputo and I will be co-presenting at some of the sessions.  For more details on the sessions, click here.  All of these sessions will be free-of-charge to all show attendees.  So, if you have at least an Exhibits Plus Pass (only $30), you can check them all out.  How cool is that?!?

Anyway, I want to thank all of the speakers for agreeing to participate and I’m very excited to once again include NineForum in the educational efforts from CloudNine that include this blog and our monthly webcasts (including our upcoming webcast next Wednesday)!

So, what do you think?  Are you attending Legaltech this year?  If so, please check out our NineForum session series!  And, as always, please let me know your thoughts or if you have a topic that you’d like to suggest.

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

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

Here’s Another Updated Commentary from The Sedona Conference: eDiscovery Best Practices

Last Friday, we covered one updated commentary from The Sedona Conference® (TSC) and promised to cover another one this week.  Consider our promise kept!  :o)

On January 10, TSC and its Working Group 11 on Data Security and Privacy Liability (WG11) announced the publication of the January 2020 final version of The Sedona Conference Incident Response Guide.

The mission of WG11 is to identify and comment on trends in data security and privacy law in an effort to help organizations prepare for and respond to data breaches, and to assist attorneys and judicial officers in resolving questions of legal liability and damages.  WG11 developed the Incident Response Guide to provide a comprehensive but practical guide to help practitioners and organizations deal with the multitude of legal, technical, and policy issues that arise whenever a data breach occurs.

The Incident Response Guide is intended to help organizations prepare and implement an incident response plan and, more generally, to understand the information that drives the development of such a plan. It has been created by thought leaders in the industry and reflects both the practical lessons learned and legal experience gained by the drafters from direct experience responding to incidents, from representation of affected clients, and from the promulgation of rules and guidelines on national and international levels, and is intended to provide general guidance on the topic.

A couple of interesting and curious things about this guide, compared to other TSC guides we’ve covered in the past:

  • The Public Comment version of the Guide was developed way back in March 2018, almost two years ago
  • The guide starts on page 124 and goes to page 262?!? At least in the version I just downloaded this weekend.  Hmmm…

Regardless, there are essentially seven parts in the 139-page(!) (PDF) Commentary (after the Introduction, Part I), plus six appendices.  The Guide covers various topics like pre-incident planning, the incident response plan and executing it, key collateral issues and basic notification requirements.  The appendices include a Model Incident Response Plan and Model Notification Letter and Model Attorney General Breach Notification examples.

You can download a copy of the Commentary here (login required, which is free).  BTW, do you know how many states have security breach notification laws?  You might be surprised!

So, what do you think?  Does your organization have a incident response plan for data security?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

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

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

Here’s Why Whether Apple Provides a Backdoor to iPhones May Not Matter: Data Privacy Trends

Last week, we covered the government’s latest attempt (and Apple’s resistance) to get Apple to assist in unlocking the iPhones of a mass shooter – this time, with regard to password-protected iPhones used by Mohammed Saeed Alshamrani, who is suspected of killing three people last month in a shooting at a Navy base in Pensacola, Florida.  Ultimately, however, it may not matter whether Apple helps the government or not.

According to Business Insider (The Justice Department is demanding that Apple make it easier to unlock suspects’ iPhones, but experts say it can do that without Apple’s cooperation. Here’s how., written by Aaron Holmes), according to cybersecurity experts, new technologies have made it even easier for investigators to crack locked iPhones, even without help from Apple.

Last week, Attorney General William Barr said during a press conference on Monday that Apple had not helped the FBI crack into the password-protected iPhones used by Alshamrani.

“We have asked Apple for their help in unlocking the shooter’s iPhones. So far Apple has not given us any substantive assistance,” Barr said, next to a poster with a picture of the iPhones. “This situation perfectly illustrates why it is critical that investigators be able to get access to digital evidence once they have obtained a court order based on probable cause.”

For their part, Apple disputed Barr’s assessment that it has failed to provide law enforcement with “substantive assistance” in unlocking the password-protected iPhones used by the shooting suspect at a Navy base in Pensacola, Florida, last month, but still refused his main request to provide a backdoor.  Apple stated it “produced a wide variety of information associated with the investigation” after the FBI’s initial request on Dec. 6. The company said it provided “gigabytes of information” including “iCloud backups, account information and transactional data for multiple accounts” in response to further requests that month.

“We have always maintained there is no such thing as a backdoor just for the good guys,” Apple said in a statement. “Backdoors can also be exploited by those who threaten our national security and the data security of our customers. Today, law enforcement has access to more data than ever before in history, so Americans do not have to choose between weakening encryption and solving investigations. We feel strongly encryption is vital to protecting our country and our users’ data.”

In an interview with Business Insider, Chris Howell, CTO of Wickr said he understood why Apple wouldn’t intentionally build a backdoor into the iPhone as the FBI has requested.

“As a technologist I can tell you that there is no security mechanism that can discriminate between a hacker trying to crack it and a law enforcement officer trying to do the same thing. Either we secure it or we don’t, it’s that simple.”

However, according to The Wall Street Journal, the cybersecurity company Grayshift sells an iPhone hacking device for $15,000, and Israel’s Cellebrite sells a similar device.  Tech companies are constantly trying to develop more secure devices and platforms to win costumers’ trust, and are therefore reticent to build backdoors that would easily crack encrypted services. Similarly, companies like Grayshift and Cellebrite are constantly honing methods of cracking devices, which are kept secret.

The iPhone was long seen as uncrackable, but recent advances have changed that — one county in Georgia that purchased a Grayshift device was able to crack 300 phones in one year, The Wall Street Journal reported.

One commenter to our post last week stated “if I was a terrorist I’d throw away my iPhoneX and get an iPhone 11”.  Staying ahead of crackers and hackers seems to be a continual battle that device managers and website providers face daily.  And, if we think this issue only applies to discovery of devices in cases involving mass shooters, it could easily apply to discovery in any type of case today where a custodian of a device has something to hide.  Like this Fifth Amendment case that we covered last year and will discuss in our webcast on January 29.

So, what do you think?  Should companies like Apple and Facebook provide backdoor access to their encrypted technology to investigators?  Or are there bigger privacy concerns at play here?  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.

The Sedona Conference Has an Updated Commentary on Rule 45 Subpoenas to Non-Parties: eDiscovery Best Practices

So many stories, so little time.  Been meaning to cover this for a few days now.  Last week, The Sedona Conference® (TSC) and its Working Group 1 on Electronic Document Retention & Production (WG1) announced the publication of the Public Comment Version of The Sedona Conference Commentary on Rule 45 Subpoenas to Non-Parties, Second Edition.

In 2008, TSC published its first edition of this Commentary, then titled Commentary on Non-Party Production & Rule 45 Subpoenas.  That was 12 years ago!  Even our blog didn’t exist back then.  As you can imagine, much has changed since then, including:

  • Federal Rule of Civil Procedure 45 was substantially revised in 2013;
  • the 2015 amendments to the Federal Rules of Civil Procedure, while not further revising Rule 45 directly, significantly affect non-party practice;
  • Federal Rule of Evidence 502 was enacted in 2008 (subsequent to the publication of the first edition of this Commentary);
  • The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production was published in 2017 (we covered it here); and
  • the rise in cloud computing has placed large amounts of party data in the hands of non-parties, leading to increased use of Rule 45 subpoenas. That in turn has led to a significant growth in the case law under Rule 45 since the first edition. Here are a few examples we’ve covered in the past couple of years: Williams v. Angie’s List, Ronnie Van Zant, Inc. v. Pyle, Apex Colors, Inc. v. Chemworld Int’l Ltd., Inc., Shenwick v. Twitter, Inc., Fair v. Commc’ns Unlimited Inc., Shamrock-Shamrock, Inc. v. Remark.

There are essentially five parts in the 49-page (PDF) Commentary (after the Introduction, Part I).  Part II covers Rule Changes and Their Impact on Non-Party Discovery.  Part III covers The Possession, Custody, and Control Framework and Its Impact on Rule 45 Obligations (which has factored in several of the cases listed above).  Part IV discusses Preservation obligations, prior to and after receipt of a subpoena and remedies for spoliation.  Part V discusses Rule 45(d) Costs, Sanctions, and Motion Practice.  And, Part VI discusses Rule 45 Practice Pointers.   There are no Appendices.

You can download a copy of the Commentary here (login required, which is free).  The Commentary is open for public comment through March 6, 2020. Questions and comments on the Commentary are welcome and may be sent to comments@sedonaconference.org.  In particular, please share your comments on Section III’s discussion of viewing non-party subpoenas through the lens of “possession, custody or control” principles as well as Section VI’s sixteen Practice Pointers. The drafting team will carefully consider all comments received, and determine what edits are appropriate for the final version.

TSC has been busy!  We’ll cover another publication that was just released a few days ago early next week.

So, what do you think?  How does your organization address subpoenas of non-parties in litigation today?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

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

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

Apple Battling with the Government Again Over Breaking iPhone Encryption of Mass Shooters: Data Privacy Trends

Remember back in 2016 when Apple with in a court battle with the Department of Justice over giving investigators access to encrypted data on the iPhone used by one of the San Bernardino shooters?  That was back in 2016 and we covered it here, here and here – that situation was resolved when the DOJ indicated that the FBI was able to retrieve the data with help from an “unnamed third party”.  Now, Apple is in a new dispute with the government again over the same issue.

According to CNBC (Attorney General William Barr says Apple is not helping unlock iPhones used by alleged Pensacola shooter, written by Kif Leswing), Attorney General William Barr said during a press conference on Monday that Apple had not helped the FBI crack into password-protected iPhones used by Mohammed Saeed Alshamrani, who is suspected of killing three people last month in a shooting at a Navy base in Pensacola, Florida.

“We have asked Apple for their help in unlocking the shooter’s iPhones. So far Apple has not given us any substantive assistance,” Barr said, next to a poster with a picture of the iPhones. “This situation perfectly illustrates why it is critical that investigators be able to get access to digital evidence once they have obtained a court order based on probable cause.”

“We call on Apple and other technology companies to help us find a solution so that we can better protect the lives of Americans and prevent future attacks,” he said. Barr has also clashed with Facebook over encrypted messages, which he called “data-in-motion” on Monday.

The comments highlight law enforcement’s frustration with encryption technologies that protect data so that neither Apple nor law enforcement can easily read it.  They also preview future clashes between technology companies and governments over whether to build “back doors” that would allow law enforcement elevated access to private data to solve crimes like terrorism.

On Tuesday (as covered by CNBC here), Apple disputed Barr’s assessment that it has failed to provide law enforcement with “substantive assistance” in unlocking the password-protected iPhones used by the shooting suspect at a Navy base in Pensacola, Florida, last month, but still refused his main request to provide a backdoor.

Apple said it “produced a wide variety of information associated with the investigation” after the FBI’s initial request on Dec. 6. The company said it provided “gigabytes of information” including “iCloud backups, account information and transactional data for multiple accounts” in response to further requests that month.

“We have always maintained there is no such thing as a backdoor just for the good guys,” Apple said in its latest statement. “Backdoors can also be exploited by those who threaten our national security and the data security of our customers. Today, law enforcement has access to more data than ever before in history, so Americans do not have to choose between weakening encryption and solving investigations. We feel strongly encryption is vital to protecting our country and our users’ data.”

Apple made a similar point at a congressional hearing in December as senators threatened regulation if tech companies could not figure out a way to work with law enforcement to legally access encrypted devices and messages. A Facebook representative also attended the hearing, defending the company’s plans to make its entire private messaging system end-to-end encryption, which law enforcement fear will make it harder for them to track down instances of child exploitation, as they do now.

I expected we would see another dispute between Apple (or other provider) and the government, along the lines of the San Bernardino shooter case – surprised it took this long.  Maybe it’s time for the AG’s office to solicit the assistance of an “unnamed third party”… ;o)

So, what do you think?  Should companies like Apple and Facebook provide backdoor access to their encrypted technology to investigators?  Or are there bigger privacy concerns at play here?  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.