Industry Trends

Today is the start of Legaltech^® New York (LTNY), and, for the tenth(!) year in a row, eDiscovery Daily is here to report about the latest eDiscovery trends being discussed at the show.  Over the next three days, we will provide a description each day of some of the sessions related to eDiscovery to give you a sense of the topics being covered.  If you’re in the New York area, I encourage you to check out the show – there are a number of sessions available and over 158 exhibitors providing information on their products and services, including our company, CloudNine at booth #3000 in America’s Hall 2.

In addition to that, today and tomorrow, CloudNine will conduct its second annual 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 NineForum again this year, 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 tomorrow 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.  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.

There are several interesting sessions today related to eDiscovery, Information Governance, Cybersecurity and Data Privacy.  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, so you don’t have to.  :o)  Sessions in the main conference tracks include:

11:30am – 12:30pm:

Getting Into the BlockTech Game

You’ve probably been inundated with BlockTech hype and chatter for the past couple years, but now is the time to cut through all the noise.  In this eye-opening session, we’ll cut through the hype to underscore legal DApps that are actually within use, with a glimpse into the very bright future of this technology.

Key takeaways:

• Getting knowledgeable about smart contracts
• Priming up the DApp solution landscape
• Case studies where DApps have been successfully deployed
• The future of BlockTech in law
• Business of law implications

Speakers: Joe Dewey – Holland & Knight; Moshe Malina – Citi; Jeffrey Neuburger – Proskauer; Judith Rinearson – K&L Gates.

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

GDPR & CCPA are Fueling High Demand for On-Point RegTech Solutions Presented by Thomson Reuters

In this session, we’ll explore the State of RegTech solutions and how they’re being leveraged to automate compliance with key parts of the GDPR & CCPA.  In addition, we’ll examine how ALSPs are using these new technologies for large scale compliance projects. We’ll also provide a readout on the state of developments in global data privacy and protection law matters.

Key takeaways:

• Key updates on GDPR & CCPA
• Case studies where RegTech has been successfully deployed
• Priming up on the solution landscape in data privacy & security
• How ALSPs are leveraging these new technologies for large-scale compliance projects
• Business of law implications

Speakers: Tess Blair – Morgan Lewis; Anju Khurana – BNY Mellon; Kenneth Rashbaum – Barton LLP; Courtney Stout – S&P Global; Sulina Gabale – Orrick.

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.

Corporate Legal in Control: eDiscovery Benchmarks

Rapid developments in legal technology, a continuing focus on process excellence, and an emphasis on holistic innovation continue to fuel transformation in corporate legal departments. For the past four years, OpenText has partnered with Ari Kaplan Advisors to identify the key forces driving change in corporate LegalOps and this year’s results include some surprising trends. Join Ari and corporate legal professionals as we unveil this year’s survey results and discuss the highlights including:

Key takeaways:

• eDiscovery program design: building the team, identifying processes to own & integration points
• eDiscovery operations: tracking, measuring & managing projects
• Vendor and firm management: provider ecosystems, consolidation & technology platform ecosystems
• eDiscovery technology: AI adoption, cloud vs on premise mix & analytics in use
• Future: pain points on the horizon, technology investment & evolving culture

Speakers: Ari Kaplan – Ari Kaplan Advisors; Adam Kuhn – OpenText; Sharika de Freitas – ViacomCBS; Sam Castor – Switch; Laura Roman – New York Stock Exchange (NYSE).

In addition to these, there are other sessions today that may interest you.  For a complete description for all sessions today – and for the entire show, since they’re all on one page (even if you do have to click “Learn More” on each one to see them), click here.

So, what do you think?  Are you planning to attend LTNY this year?  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.

See what I did there?  ;o)  Yes, it’s Legalweek^®!  And, Legaltech^® starts tomorrow!  But, if you were to look at our latest word cloud, maybe the show should be called “Legaldata”?  Or maybe “Legalpriv”?

In some past years, we’ve covered InsideLegal’s word cloud and they’ve been creating a word cloud every year since 2011, which is the first year that eDiscovery Daily started covering the show – this is our tenth(!).  As of last Friday, they hadn’t done one yet this year, so we decided to create our own word cloud, using our CloudNine Review™ software platform.  In our own unscientific way.  Here’s what I did:

First, I opened up every main conference session on the Legaltech site (don’t get me started, and, you’re welcome!) and copied and pasted the descriptions into a text file.  Then, I stripped out as much extraneous text as I could (e.g., dates, speaker and firm names, etc.) to get to core descriptions of the sessions.  Then, I loaded the descriptions into our Review platform to create an index of the top 100 terms and a word cloud.  Simple enough?

So, what did we find?  Some quick observations:

• Obviously, for a legal technology show, you would expect the terms “legal” and “technology” to be up there at the top. And, “legal” was the top term, with 87  But, “technology” wasn’t the second most popular term or even the third most popular one.  The term “data” was second in total hits with 69.  And, the term “privacy” was third with 42 hits.  This is why I suggested (tongue-in-cheek) that we rename the show “Legaldata” or “Legalpriv”.  The term “technology” was fourth with only 31 hits.
• Terms five, six and seven in the list were “information” (28 hits), “business” (27) and “session” (26). So, maybe I didn’t strip ALL the extraneous text.
• Other notable terms were “analytics” (eighth at 25 hits), “implications” (tied for ninth at 21 hits), “protection” (tied for fourteenth at 16 hits) and “automation”, “compliance” and “ediscovery” (all tied for sixteenth at 14 hits).

You can look at the word cloud above and make your own observations.  Starting tomorrow, for the tenth year in a row, we will point out sessions related to eDiscovery (as well as Information Governance, Cybersecurity and Data Privacy), so you can plan on which sessions to attend.

Just a reminder, CloudNine will be once again exhibiting at Legaltech, 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 week?  If so, please feel free to stop by our booth!  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.

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.

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.

Happy New Year!  We’re back and better than ever, ready for not only a new year, but a new decade!  So, what’s on tap for the new year?  Here’s a survey currently underway and a major conference coming up in early February – both very familiar to you if you’re familiar with eDiscovery trends.  ;o)

It’s Winter, so it must be time for another eDiscovery Business Confidence survey from ComplexDiscovery!  Believe it or not, this is the fifth year and the seventeenth quarterly survey, and, since January 2016, more than 1,771 individual responses to the survey have been received from legal, business, and technology professionals across the eDiscovery ecosystem.  It’s a non-scientific quarterly survey designed to provide insight into the business confidence level of individuals working in the eDiscovery ecosystem. The core survey consists of nine multiple-choice questions focused on factors related to the creation, delivery, and consumption of eDiscovery products and services. Additionally, the survey includes three multiple-choice questions focused on the trajectory of key operational business metrics.  Literally takes 1-2 minutes to complete.  You can complete the Winter survey here – hurry, as the survey will close by mid-month.

If you follow our blog, you know that we’ve been covering the survey since the beginning and we will continue to cover it this year as well.  Here’s a link to our coverage of the Fall 2019 survey.

The major conference to look forward to is, of course, Legaltech^®, which is part of Legalweek and will be held from February 4 through 6 at the New York Hilton Midtown.  As usual, it will include a slew of educational sessions and a ton of legal technology exhibitors, including (of course) CloudNine (shameless plug warning!).  We will be showcasing some exciting new developments in our Concordance^®, LAW^™, Explore^™ and Review^™ products.  And, we have some exciting brand new products we will also be showcasing.  And, we may have other exciting news to share as well.  More on that coming soon!  And, of course, eDiscovery Daily will be covering the event and will provide a preview later this month and a wrap-up after the conference.

And, at Legaltech, 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. Last year, we never closed registration and we “broke” the meeting room upstairs, so we’re taking over even more of the restaurant this year!  Come join us!

So, what do you think?  Are you attending Legaltech this year?  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.

No, that’s not Tom O’Connor, it just looks like him… ;o)

Hard to believe it’s the fifteenth edition, but here it is: Norton Rose Fulbright’s 2019 Litigation Trends Annual Survey.  We’ve covered it a few times over the years, but I don’t remember it ever being released this close to the holidays.  Nonetheless, the survey, as always, had some interesting findings.  Let’s take a look.

287 corporate counsel participated in the survey, all respondents were US-based or represent US-based organizations.  The breakdown was as follows: General Counsel 39 percent, Head of Litigation 19 percent, Associate/Deputy/Assistant GC 27 percent, Other 16 percent.

Some notable statistics include:

• $1.5 million spent on disputes per $1 billion of revenue (median average);
• 17 percent of respondents expect to increase their team sizes, with only 2 percent predicting a decrease;
• 66 percent of respondents are using Alternate Fee Agreements (AFAs), but generally for only a minority of spend;
• 62 percent of respondents now have to balance cross-border discovery with jurisdictional data protection regulations;
• Greater than 50 percent feel more exposed to cybersecurity and data protection issues, while 11 percent feel less exposed (the second number is the one that surprises me);
• 35 percent expect volume of disputes to rise moving forward, while only 9 percent expect the volume to decrease (a 26 percent net, which is a rise of 9 percent over 2018 and the third year in a row that the net went up);
• The most common types of litigation pending against respondent companies over the past 12 months were Labor/Employment 49 percent (up 7 percent from 2018), Contracts 42 percent (up 1 percent), Personal Injury 18 percent (down 1 percent) and IP/Patents 18 percent (up 3 percent);
• 44 percent of respondents identified Cybersecurity/data privacy as the most likely new source of dispute for their business on the horizon (more than four times the next likely sources: Regulatory and Climate/environment at 10 percent each).

That’s just a sampling of numbers, you can go to the Norton Rose Fulbright site here to download your own copy of the free report.

So, what do you think?  Do any of those numbers surprise you?  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.

Tomorrow, CloudNine will conduct the webcast 2019 eDiscovery Year in Review.  As 2019 has been a busy year, we have a lot of topics planned for tomorrow – everything from key case law decisions to important data privacy trends to whether lawyers are “failing” at cybersecurity and it will be a challenge to get through them all.  But, we still couldn’t cover everything – there was simply too much that happened this year to cover it all.  So, here are some notable events and trends that we covered on eDiscovery Daily this year that we won’t have time to discuss tomorrow.  Enjoy!

To Preserve Sanction Potential, Plaintiff Fights To NOT Have Claim Against Them Dismissed: Yes, you read that right. In DR Distrib., LLC v. 21 Century Smoking, Inc., Illinois District Judge Iain D. Johnston denied the defendants’ Motion for Leave to Amend their counterclaim to remove their own defamation counterclaim (Count VIII) against the plaintiffs – a move to which the plaintiffs objected, because it could eliminate their chance to pursue sanctions against the defendants for ESI spoliation.

Discovery Can’t Be Stayed While Motion to Dismiss is Considered, Court Says: In Udeen v. Subaru of America, Inc., New Jersey Magistrate Judge Joel Schneider denied the defendants’ request that all discovery be stayed until their Motion to Dismiss is decided, but, with the proviso that only limited and focused discovery on core issues would be permitted.

Firm IT Director Predicts “Carnage” in Legal Tech Consolidation: Not since Clubber Lang predicted “pain” in Rocky III has the state of legal tech consolidation been stated quite this way. Is that good news or bad news for consumers of legal tech software and services?

Is eDiscovery “Too Practical” to Offer as Part of Law School Curriculums?: We’ve certainly noted before how slow law schools are to provide eDiscovery education. But, are they slow to push for it because eDiscovery is “too practical”? At least one law school dean suggests that might be the case.

Another Case Where Intent to Deprive is Put in the Hands of the Jury: In Woods v. Scissons, Arizona Chief District Judge G. Murray Snow granted in part and denied in part the plaintiff’s motion for sanctions for spoliation of video footage of an arrest incident involving the plaintiff and the defendant (a police officer with the Prescott Police Department), ruling that non-party City of Prescott violated a duty to preserve evidence of the alleged incident, but that the question of intent should be submitted to the jury to determine appropriate sanctions.

Mary Mack and Kaylee Walstad acquire the EDRM from Duke Law: In a rare two-post day for us at eDiscovery Daily, we broke the news that Mary Mack and Kaylee Walstad, the former executive director and former vice president of client engagement, respectively, of The Association of Certified E-Discovery Specialists (ACEDS) announced that they have acquired the Electronic Discovery Reference Model (EDRM) from the Bolch Judicial Institute at Duke Law School.  Before that, ACEDS announced its new leadership as well.

Why Process in eDiscovery? Isn’t it “Review Ready”?: I’ve been asked a variation of this question for years. But, perhaps the best answer to this question lies in Craig Ball’s new primer – Processing in E-Discovery.

Despite Email from Defendants Instructing to Destroy Evidence, Court Declines Sanctions: In United States et al. v. Supervalu, Inc. et al., Illinois District Judge Richard H. Mills, despite an email produced by the defendants with instructions to their pharmacies to destroy evidence, denied the relators’ motion for sanctions, stating: “Upon reviewing the record, the Court is unable to conclude that Defendants acted in bad faith. If the evidence at trial shows otherwise and bad faith on the part of the Defendants is established, the Court can revisit the issue and consider one or both of the sanctions requested by the Relators or another appropriate sanction.”  {OK, we might mention this one}

Court Infers Bad Faith for Plaintiffs Use of Ephemeral Messaging App: In Herzig v. Arkansas Foundation for Medical Care, Inc., Arkansas District Judge P.K. Holmes, III indicated his belief that the use and “necessity of manually configuring [the messaging app] Signal to delete text communications” on the part of the plaintiffs was “intentional and done in bad faith”. However, Judge Holmes declined to consider appropriate sanctions, ruling that “in light of the [defendant’s] motion for summary judgment, Herzig and Martin’s case can and will be dismissed on the merits.”

Despite Email from Defendants Instructing to Destroy Evidence, Court Declines Sanctions: In United States et al. v. Supervalu, Inc. et al., Illinois District Judge Richard H. Mills, despite an email produced by the defendants with instructions to their pharmacies to destroy evidence, denied the relators’ motion for sanctions, stating: “Upon reviewing the record, the Court is unable to conclude that Defendants acted in bad faith. If the evidence at trial shows otherwise and bad faith on the part of the Defendants is established, the Court can revisit the issue and consider one or both of the sanctions requested by the Relators or another appropriate sanction.”  {OK, we might mention this one}

If this is what didn’t make the cut, tune in tomorrow (noon CST, 1:00pm EST, 10:00am PST) to see what did!

So, what do you think?  What do you think was most notable about eDiscovery in 2019?  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.