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Information Governance

Increasing Your Technological Competence, Part 1

From the CloudNine family to yours, we wish you a wonderful holiday season! As a gift of knowledge, this article will focus on defining and maintaining high levels of technological competence. To effectively represent their clients, a lawyer must actively update their knowledge on legislative changes. The American Bar Association referred to this skill in Rule 1.1 as “competence.” The rule originally called for lawyers to possess the “legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” [1] In 2012, the ABA expanded the definition through an amendment concerning technological competence. According to Matthew Knouff from ESI Survival Guide, 39 states adopted this rule in some form by March 2021. South Dakota, Rhode Island, Oregon, New Jersey, Nevada, Mississippi, Maryland, Maine, Hawaii, Georgia, and Alabama are the main exceptions to this trend. [2] Though Rule 1.1’s amendment laid out the framework, it didn’t provide instructions on how lawyers should build their technological competence. To achieve this duty, the California Bar committee issued an opinion, outlining 9 necessary skills. Since this opinion was crafted through examinations of federal cases, these skills could be applicable to various states.

Explanations of the First Five Skills

  1. Initially assess e-discovery needs and issues, if any.

In fear of the cost and rules of e-discovery, some lawyers try to avoid the practice altogether. By doing so, lawyers disadvantage their clients by missing out on relevant ESI. Instead of yielding to eDiscovery trepidation, conduct an initial assessment to determine the cost, timeframe, and data types needed for the investigation. Consider the value of the claims in comparison with the costs of processing and production. Determining which data types must be collected and how much time is allotted for the process. These examinations can act as a starting point in assessing the proportionality of the production request.

  1. Implement or cause to implement appropriate ESI preservation procedures.

To accomplish this skill, lawyers should acquaint themselves with their client’s IT setup. Once the preservation responsibilities have been established, clients and custodians should be informed with clear, written instructions. It’s important to follow up with clients and custodians to ensure that they are complying with the preservation requirements to avoid spoliation sanctions. If requesting ESI from opposing counsel, send a preservation letter that identifies what data should be preserved and where it can be found.

  1. Analyze and understand a client’s systems and storage.

Get familiar with your client’s IT environment and staff. It’s beneficial to request data maps of complex systems and speak directly to the IT staff. Through this knowledge and ease in communication, lawyers will gain a better sense of where relevant ESI may lie. After determining the location of the data, one can access how difficult and/or expensive it will be to access the information.

  1. Advise the client about available options for collection and preservation of ESI.

The scope and cost of preservation might be huge when dealing with larger companies due to their larger volumes of data and longer lists of custodians. However, lawyers should not concern themselves with burdensome collections unless the information is proportional to the case. During Rule 26(f) conferences, consult opposing counsel on the scope of discovery in relation to the costs of collection and production. If the parties determine that the discovery request is disproportional, seek guidance from the court.

  1. Identify custodians of relevant ESI.

After identifying the custodians who possess relevant data, categorize the list into two categories: primary custodians and secondary custodians. As the terms suggest, primary custodians have more direct involvement with the information than secondary custodians. To save money, counsel can decide to initially search for primary custodians within a limited time frame. If necessary and proportional, the search can be expanded to encompass secondary custodians. [3]

 

[1] Model Rules of Professional Conduct Rule 1.1

[2] Matthew Knouff, “How to Gain & Maintain Technology Competence — Element 1: Education — Part 1 of 3,” March 30, 2021.

[3] Hon. Joy Flowers Conti and Richard N. Lettieri, “E-Discovery Ethics: Emerging Standards of Technological Competence,” The Federal Lawyer, 2015.

Need a Data Retention Policy? Here’s How to Build One

Now that most industries are going paperless, companies must create a comprehensive data retention policy. The purpose of a data retention policy is to establish procedures for labeling, storing, and deleting electronic (and physical) records. [1]  Most companies acknowledge the need for a retention policy, but they don’t commit to creating one. A 2000 ABA study found that 83% of the responding companies had no established protocol for handling discovery requests. Despite this unsettling statistic, 77% of the companies expected discovery requests to increase in the future. [2]  Many reasons support the need for comprehensive retention policies. One of the most pressing reasons is the explosion of ESI in recent years. For instance, corporate email alone is estimated to increase annually at a compounded rate of over 13%.  Without a data retention policy, an organization in the midst of litigation would be responsible for organizing large volumes of data with little time to do so. By proactively developing data management policies, companies will avoid the pressures of looming deadlines. Ensuring that information is properly handled also minimizes a company’s risk for sanctions. [1]  The following is a list of steps and suggestions for developing a data retention policy.

  • Do your research on relevant laws

Certain state and federal laws mandate specific preservation and deletion practices. HIPAA and GLBA are older examples of ESI regulations enacted in the late 1990s. However, states are constantly reviewing and revising their ediscovery laws, so it’s important to stay on top of any legislation changes.

  • Determine when to archive or delete data

While corporations are not expected to store every single electronic document, deletions must be orderly and purposeful. The practice of strategically deleting unneeded data is referred to as “defensible deletion.” When done correctly, defensible deletion is cost-efficient, storage-friendly, and most importantly, legal. Defensible deletion is protected by Rule 37(e) of the Federal Rules of Civil Procedure (FRCP). The rule prohibits sanctions against electronic records that were lost during good-faith deletion procedures. [3]

  • Review how your data is housed

In this step of the process, it’s important to ask what, where, and how. What data types are being stored, and how should they be classified (i.e. social media, email, transactions)? What are the retention policies for each medium? What’s the purpose of preserving this information? Where is it being stored, and does this location need to be changed to a better one? How long does the data need to be stored in order to comply with applicable state and federal laws?

  • Monitor your policy

Regularly review your policy to ensure that your company is following its outlined regulations. If you notice that your company is deviating from the policy’s storage and deletion procedure, fix the issue as soon as possible to minimize any legal risks. Routine audits also make it easier to make policy adjustments as needed.

  • Assign accountability

Determine who will be responsible for enforcing the policy throughout the company. This person or department must be well-versed on the policy’s provisions, and they must be ready to testify in court about the company’s retention procedures. [2]

  • Limit your paper trail

Consider a provision that requires electronic copies of physical documents. Some companies are still hesitant to transition to completely paperless operations. Though this hesitancy is understandable, it’s recommended to save an electronic version of all paper records. This suggestion is merely that, just a suggestion. Completely converting to electronic records is not a mandatory step in creating an effective data retention policy. However, this step would speed up the process of identifying relevant data for litigation. [1]

[1] Carlos Leyva, “Data Retention & eDiscovery,” Digital Business Law Group.

[2] “Document Retention & Destruction Policies for Digital Data,” Applied Discovery, LexisNexis, 2004.

[3] Law Offices of Salar Atrizadeh, “Electronic Discovery and Data Retention Policies,” Internet Lawyer Blog, May 18, 2020.

How to Maintain eDiscovery Data Integrity

Emails, text messages, legal documents, written letters, faxes, and more: your eDiscovery team sorts, reviews, and analyzes all of these documents and more during the span of a legal case. When handling these confidential documents, it is important to keep these documents safe and secure. 

As a vital part of the Electronic Discovery Reference Model (EDRM), any data collected is done so with the intent to capture it exactly as intended or as it was actively being used. This ensures the searchability and traceability of your data so it can be properly collected, indexed, and documented for use in litigation.

To simplify this for eDiscovery, data integrity means ensuring the legal data you collect is accurate and consistent throughout its lifecycle. Maintaining eDiscovery data integrity is not only vital for the privacy and protection of your clients, but also for the integrity of your legal investigation.

At CloudNine, we take data integrity very seriously. Read on to learn about our recommended best practices for maintaining data integrity during your eDiscovery process or learn how we put those best practices into play with CloudNine Explore here.

Protecting the Quality of Your eDiscovery Data

Data types are constantly evolving. By 2025, the number of IoT devices deployed globally will surpass 25 billion. 

The variety, velocity, and complexity of electronic evidence multiply with each new generation and innovation of data technology. While email, spreadsheets, and documents are still the primary form of data collected, social media, streaming data, and data products continue to rise in prevalence. 

This rise in data types means your vigilance must increase with the introduction of each new technology or update with the average U.S. civil case collecting 130 GBs of data the average U.S. civil case collecting 130 GBs of data. 

To protect your clients and your firm, know the factors which can affect your eDiscovery data integrity:

  1. Mistakes due to human error: Your eDiscovery data integrity can become jeopardized any time human involvement is required. Data can be input incorrectly, duplicated, or deleted. Protocols, methods, or procedures can be ignored or designed incorrectly.   
  2. Transfer errors: If your eDiscovery data isn’t transferred properly from one database to another or if one is damaged or compromised, your file could become fragmented or corrupted. 
  3. Viruses or malware: Any outside software that can infiltrate your network has the potential to alter, erase or steal critical data.
  4. Compromised hardware: Any time your network experiences a significant failure like a computer or server crash, your hardware can become compromised. This could cause your eDiscovery data to be corrupted or inaccessible.

To ensure the quality of your eDiscovery data, you need to adopt a proven data collection solution that can operate efficiently, securely, and in a forensically sound manner. This means there’s no question concerning the quality of your data or any copies made. It also needs to be able to:

  • Work with modern data types
  • Work with a variety of data types
  • Pull many different fields of data

When you are able to easily and securely perform eDiscovery data collection, your legal team will be able to take on more cases and increase margins for your LSP. Learn more about this in our eBook: 4 Ways Legal Service Providers Can Build Value and Boost Margins.

Best Practices for Ensuring eDiscovery Data Integrity

To ensure eDiscovery data integrity for your clients, implement the following best practices:

  1. Understand Your eDiscovery Solution: Knowing the capabilities and limitations of your data collection software allows you to use it in the most efficient manner possible.
  2. Validate the Data: Confirm the data you collect is correct before you upload it to your server. 
  3. Implement Access Controls: Only necessary personnel should have access to the data so there’s less chance of data being compromised or corrupted.
  4. Maintain an Audit Trail: Any change to the data can have an impact on your litigation, so you need to know who touched what files when they accessed them, and what they did to them. 
  5. Backup Your Data: Regularly scheduled and reliable data backups are essential in the event of data loss. 
  6. Deploy Cybersecurity Measures: From timely software patches to limiting physical access to computers and servers, all known security vulnerabilities should be monitored and secured to prevent outside interference.
  7. Workforce Training: Every member of your team that has access to the data should be trained to follow data integrity guidelines to ensure the reliability of the data.

How CloudNine Explore Helps You Ensure eDiscovery Data Integrity

Data integrity is the foundational element to your eDiscovery process. With CloudNine Explore, you can ensure you get it right through our innovative approach to eDiscovery data collection:

  • Navigate through data to determine risk, scope, and cost up-front
  • Review new data with automated and in-person processes
  • Securely upload, process, and preserve data critical to your investigation or litigation
  • Step-by-step and advanced user workflows
  • Data, domain, file type, and additional filtering
  • Search term testing and reporting
  • File copies are created when exported
  • Provide information as required for legal production or continued investigation

Make your cases defensible and your firm profitable with eDiscovery solutions from CloudNine. With easy-to-deploy solutions that protect your eDiscovery data integrity, CloudNine is flexible and adaptable to meet any eDiscovery needs you have. Schedule a free demo today. 

EDRM Announces Five New Projects: eDiscovery Best Practices

Did anybody doubt that EDRM under the leadership of Mary Mack and Kaylee Walstad was going to be doing BIG things?  If you did doubt it, here’s an announcement that signals that EDRM will be busy creating and improving frameworks, resources and standards within the eDiscovery community.

Last week, EDRM announced five new projects and is seeking new contributors for them.  They are:

Data Sets: This new project is being championed by Cash Butler, founder of Clarilegal, and is seeking project participants. “Everyone still tests and demonstrates with the very old and familiar data set that is comprised primarily of Enron email and attachment data,” claims Cash Butler. “A new modern data set needs to be created that is focused on modern data types as well as email. Slack, Snapchat, Instagram, text messaging, GPS and many other data types that are needed for testing and demonstrating how they process and present in a useful way. In addition, to creating the new data set we will also look to form a framework for community members to easily add, curate and update the data set to stay current.”

One word: Hallelujah!  We’ve needed new up-to-date data sets for years to replace the old Enron set, so I’m hopeful this team will make it happen.

Processing Specifications: John Tredennick, founder of Merlin Legal Open Source Foundation is championing this project with the help of co-trustees Craig Ball, president, Craig D. Ball P.C. (who recently created a processing primer) and Jeffrey Wolff, director of eDiscovery services and principal architect, ZyLAB. The Processing Specifications project will run in parallel with the Merlin Foundation’s programming project for processing.

Data Mapping: Eoghan Kenny, associate, senior manager data projects and Rachel McAdams (no, not her), data projects, at A & L Goodbody, Ireland are championing this project, which the need has arisen due to the new SEAR Act (senior executive accountability regime) to help provide frameworks around who is responsible for what data and where it resides. “The importance of data mapping has grown enormously in Europe – not just for GDPR and investigation purposes, but also to help organizations deal with the increasingly active regulatory environment,” says Kenny. “However, most of our clients struggle with data mapping as it is a new concept to most organizations, with no clear business owner, that often sits in limbo between the “business” and “IT”! The goals of this project are to build frameworks for data mapping exercises, and provide clear guidelines on what the process should look like, because the better an organization understands its data, the cheaper it is to comply with any discovery or investigation obligations.”

State eDiscovery Rules: Suzanne Clark, discovery counsel at eDiscovery CoCounsel and Janice Yates, senior e-discovery consultant at Prism Litigation are co-championing this project and how the State Rules relate to the eDiscovery Federal rules in place. The vision for the State eDiscovery Rules project is to provide a starting point for attorneys to quickly reference the rules in different states and compare and contrast to the federal rules with the various state rules relating to eDiscovery. For example, if an attorney is involved with a case in a state where they are not accustomed to practicing, this EDRM resource will allow them to quickly get up to speed on that state’s rules, where they differ and where they align with the federal rules. “The project work happening at the EDRM is impressive,” says Suzanne Clark. “The time and talent that the project leads and participants donate to the cause of advancing eDiscovery knowledge and good practices will surely serve to advance the industry and legal practice in the discovery realm.”  The project will start with Florida and Michigan and are looking for more contributors from other states.

I look forward to this as we need an up to date resource here – I’m not sure that the ones I’ve covered in the past are being actively updated.

Pro Bono: This project was just launched and has had an overwhelming reach out from people in every area, attorneys, paralegals (and associations), litigation support professional, service providers, platforms, corporations and those in need. We are still seeking assistance as the need for access to justice is great. Stewarded by BDO director, George Socha and HB Gordon, eDiscovery manager for the Vanguard Group, the Pro Bono project will create subgroups to accelerate providing eDiscovery services to those in need.

As the announcement notes, projects, both ongoing and newly initiated, will be advanced at the EDRM Summit/Workshop 2020 at Duke University School of Law, June 24-26. I’ll have more to say about that as we get closer to it, but it certainly sounds like it will be very busy!  I’m certainly planning to be there!

So, what do you think?  Are you interested in participating in EDRM?  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.

Top Ten Tips for Working with eDiscovery: eDiscovery Best Practices

I stumbled across a post in our blog that Tom O’Connor did over a year ago to conclude his series titled Will Lawyers Ever Embrace Technology?  As usual, Tom did a great job and, in this post, he offered his top ten tips for working with eDiscovery.  Tom provided a top ten list terrific enough to make David Letterman proud, but I thought the list could use some additions – in the form of links to resources for the items.  Here goes!

As a reminder, here are the top ten tips from Tom’s post:

  1. Read the Rules
  2. Read the Decisions
  3. Know the Terms
  4. Know Where Your Data Is
  5. Talk to The IT Department
  6. Talk to The Records Management People
  7. Make a Records Management Policy
  8. Make A Litigation Hold Policy
  9. Enforce the Litigation Hold Policy
  10. Meet with Your Client’s Inside Counsel

Let’s take them one (or sometimes two) at a time.

Read the Rules: As Tom notes, the Federal Rules of Civil Procedure (FRCP) lay out the framework for your obligations in handling eDiscovery, but many states have rules that may differ from the FRCP.  Not only that, but the FRCP is comprised of a lot of rules which don’t necessarily have to do with eDiscovery.  So, which ones do you need to know?  There are two notable Rules updates that have significant eDiscovery impact: the 2006 and 2015 updates.  Fortunately, we covered them both in our webcast titled What Every Attorney Should Know About eDiscovery in 2017, which (as you can tell by the title) is three years old now (but still relevant for this topic).  You can click on the webcast to get access to the slides (via the attachments link) if you don’t want to sit through the hour-long webcast.  As for states rules, K&L Gates has a listing of states that have enacted eDiscovery rules (not all of them have), so you can check your state (and other states) here.

Read the Decisions: To find decisions related to eDiscovery, you can find plenty of those right here on the eDiscovery Daily blog – for free!  We’re up to 734 lifetime case law related posts, covering 566 unique cases since our inception back in 2010.  You can see them all here or wind them down year by year here.  If you want even more decisions (1,500 to 2,000 a year, not to mention other terrific resources), you can find those at our go to site for case law – eDiscovery Assistant.

Know the Terms: Tom notes in his post the importance of knowing the terms and even provides a terrific resource – The Sedona Conference – for a great terms list, which was just updated and we covered it and how to get it here!

Know Where Your Data Is: When it comes to knowing where your data is, a data map comes in really handy.  And, with GDPR and other factors emphasizing data privacy, that’s more important than ever.  Here are several templates to get started.

Talk to The IT Department: Tom says “You’re Lewis and Clark, they’re Sacajawea. You cannot…absolutely cannot…navigate without them.”  Knowing the terms and understanding data maps (see previous two paragraphs) will help bridge the communication gap and help here too.

Talk to the Records Management People and Make a Records Management Policy: Records Management is a term that has been around for a long time.  A more recent term that has become synonymous is Information Governance.  eDiscovery Daily has over 200 posts related to Information Governance, including this seven blog post series from Tom here.  Enjoy!

Make A Litigation Hold Policy and Enforce the Litigation Hold Policy: We’ve covered the topic of litigation holds several times as well during the almost 9 1/2 years of the blog, including these two posts (recently updated) where we discuss several things you need to consider when implementing your own litigation hold.

Meet with Your Client’s Inside Counsel: With all of the info you learned above, you’re well equipped to (as Tom puts it) “discuss all of the above”.  One more thing that can help is understanding topics that can be covered during the meet and confer that will benefit both you and your client.  Here’s a webcast that will help – again, you can click on the webcast to get access to the slides (via the attachments link) if you don’t want to sit through the hour-long webcast.

One more thing that Tom notes in his post is that “eDiscovery is a process comprised of separate distinct stages, any one of which may have specific software available for that stage” and that’s very true.  Certainly, that’s true at CloudNine, where, in addition to our Review product mentioned above, we also have a product that collects data from O365 and One Drive (CloudNine Collection Manager™), an Early Data Assessment platform (CloudNine Explore™), a processing and production platform known as the “swiss-army knife of eDiscovery” (CloudNine LAW™) and a tried and true desktop review platform (CloudNine Concordance®).  There are as many workflows as there are organizations conducting eDiscovery and getting the most out of software products available from CloudNine or other providers to maximize your own workflow is key to succeeding at eDiscovery.  Work with your software provider (whoever they are) to enable them to help maximize your workflow.  Help us help you!  :o)

So, what do you think?  Are you familiar with all of these resources?  If not, now you can be!  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.

You May Soon Be Told to “Go Jump in a Lake” for Your ESI: eDiscovery Trends

A data lake, that is. So, what is it and why should you care?  Let’s take a look.

Leave it to Rob Robinson and his excellent Complex Discovery blog to provide links to several useful articles to help better understand data lakes and the potential they have to impact the business world (which, in turn, impacts the eDiscovery world).  Here’s one example:

In this article in BizTech (Data Lakes Prove Key to Modern Data Platforms, written by Jennifer Zaino), the author defines data lakes as “stor[ing] data of any type in its raw form, much as a real lake provides a habitat where all types of creatures can live together.

A data lake is an architecture for storing high-volume, high-velocity, high-variety, as-is data in a centralized repository for Big Data and real-time analytics. And the technology is an attention-getter: The global data lakes market is expected to grow at a rate of 28 percent between 2017 and 2023.

Companies can pull in vast amounts of data — structured, semistructured and unstructured — in real time into a data lake, from anywhere. Data can be ingested from Internet of Things sensors, clickstream activity on a website, log files, social media feeds, videos and online transaction processing (OLTP) systems, for instance. There are no constraints on where the data hails from, but it’s a good idea to use metadata tagging to add some level of organization to what’s ingested, so that relevant data can be surfaced for queries and analysis.”

“To ensure that a lake doesn’t become a swamp, it’s very helpful to provide a catalog that makes data visible and accessible to the business, as well as to IT and data management professionals,” says Doug Henschen, vice president and principal analyst at Constellation Research.

The author also advises not to confuse data lakes (which store raw data) with data warehouses (which store current and historical data in an organized fashion).

Data warehouses are best for analyzing structured data quickly and with great accuracy and transparency for managerial or regulatory purposes. Meanwhile, data lakes are primed for experimentation, explains Kelle O’Neal, founder and CEO of management consulting firm First San Francisco Partners.

With a data lake, businesses can quickly load a variety of data types from multiple sources and engage in ad hoc analysis. Or, a data team could leverage machine learning in a data lake to find “a needle in a haystack,” O’Neal says.

Data warehouses follow a “schema on write” approach, which entails defining a schema for data before being able to write it to the database. Online analytical processing (OLAP) technology can be used to analyze and evaluate data in a warehouse, enabling fast responses to complex analytical queries.

Data lakes take a “schema on read” approach, where the data is structured and transformed only when it is ready to be used. For this reason, it’s a snap to bring in new data sources, and users don’t have to know in advance the questions they want to answer. With lakes, “different types of analytics on your data — like SQL queries, Big Data analytics, full-text search, real-time analytics and machine learning — can be used to uncover insights,” according to Amazon. Moreover, data lakes are capable of real-time actions based on algorithm-driven analytics.

Businesses may use both data lakes and data warehouses. The decision about which to use turns on “understanding and optimizing what the different solutions do best,” O’Neal says.

Want to know more – a lot more – about data lakes?  Check out Rob’s post here with links to several other articles as well.

So, what do you think?  Has your organization learned to “fish” from data lakes yet?  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.

Two Weeks, Two Sedona Conference Guides Published: eDiscovery Best Practices

Last year, The Sedona Conference® (TSC) published a bunch of…er…publications.  That included the Public Comment Version of their Primer on Social Media, Second Edition, the Public Comment version of its Commentary on BYOD: Principles and Guidance for Developing Policies and Meeting Discovery Obligations and the final version of its new Data Privacy Primer.  Now, TSC has published the final versions of two other guides for which it published the public comment version last year.

On April 11, TSC and its Working Group 1 on Electronic Document Retention & Production (WG1) announced the publication of its Commentary on Information Governance, Second Edition. The public comment version of this Second Edition was published in October of last year (we covered it here).

In 2014, TSC published its first edition of the Commentary on Information Governance which recommended a top-down, overarching framework guided by the requirements and goals of all stakeholders that enables an organization to make decisions about information for the good of the overall organization and consistent with senior management’s strategic directions. The Second Edition accounts for the many changes and advances in technology and law over the past four years; underscores the role of IG as part of and complimentary to the business, rather than something separate that adds overhead; and emphasizes the costs of eDiscovery which should drive organizations to focus on IG on the front end, resulting in eDiscovery that is more efficient, less painful, and which allows the organization to reap additional benefits from a business perspective.

Then, on April 18 (last Thursday), TSC and its WG1 announced the publication of the Commentary on Defensible Disposition. While updating the 2014 Commentary on Information Governance, WG1 recognized there was a need to provide guidance to organizations and counsel on the adequate and proper disposition of information that is no longer subject to a legal hold and has exceeded the applicable legal, regulatory, and business retention requirements.  The public comment version of this Commentary was published in August of last year (we covered that one here), so it took a bit longer to “dispose” of that one (but, I suppose, that’s “defensible”).

Also last Thursday, TSC announced a special Working Group 6 on International Electronic Information Management, Discovery and Disclosure (WG6) membership-building event at the Brussels offices of Crowell & Moring LLP, on Wednesday, May 15th, from 5:30 – 8:30 pm.  You know what that means – free sprouts!  ;o)  Seriously, though, the event is a WG6 membership-building event, so they will also discuss the mission of WG6; activities of WG6, including drafting efforts and upcoming events; and the benefits of joining WG6.

I hear that Brussels is nice this time of year.  Wish I could speak from personal experience!  ;o)

Finally, a reminder that at noon CST today (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Discovery Isn’t Just for Litigation Anymore. In this one-hour webcast that’s CLE-approved in selected states, Tom O’Connor and I will discuss the drivers and challenges facing organizations today to be more proactive in understanding their data to identify issues before they lead to litigation and address them proactively.  To register for it (yes, there’s still time!), 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).  We will discuss some topics related to InfoGov and Defensible Disposition, so it’s timely!

So, what do you think?  Are you up to date on the latest IG trends?  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.

Tomorrow is the U-Fla E-Discovery Conference!: eDiscovery Best Practices

Usually, I remind you the day of a conference about it, but this one is big enough that I want to give you more time to register – at least for the livestream.  Believe it or not, tomorrow is the seventh annual University of Florida E-Discovery Conference.  And, as usual, the panel of speakers is an absolute who’s who in eDiscovery.

The conference focus this year is effectively managing discovery from the opposition. As they state on the site: “The opposition often holds the keys to the case. How can you make sure you get the documents you are entitled to? How can you assure that the opposition is doing the best job identifying, collecting, searching and producing requested documents.”

The conference is tomorrow from 8am to 6pm ET.  And, again this year, U-Fla will also be hosting CareerFest the day before (which is today!) at noon ET.

As you can always expect from the U-Fla conference, there are a veritable plethora of experts, including Craig Ball, George Socha, Aaron Crews, Scott Milner, Kelly Twigger, Tessa Jacobs, David Horrigan, Canaan Himmelbaum, Suzanne Clark, Mike Dalewitz, Mike Quartararo, and Ian Campbell.  And, a bunch of distinguished federal and state judges, including U.S. Magistrate Judges William Matthewman, Mac McCoy, Patricia Barksdale, and Gary Jones and retired Florida Circuit Court Judge Ralph Artigliere.

I will be there again as well, presenting in the E-Discovery Nuts and Bolts session.  The topic is Why Waiting Until the Case is Filed May Now be Too Late for Discovery!

I’ll be discussing the drivers and challenges (such as #MeToo, growing data privacy concerns with GDPR and the pending California Privacy Act) facing organizations today to understand their data better to avoid litigation in the first place and discuss where discovery is heading in the future.  Expect a lot of interesting (if not sobering) stats!

From what I understand, unless you’re a student, the conference is sold out in person!  (Maybe you’d better act earlier next time if you want to attend in person!)  But, livestream attendance is still available – and it’s still only $99 for a whole day of CLE-accredited education from a who’s who of eDiscovery experts.  And, it’s free to university and college faculty, professional staff, judicial officials, clerks, and employees of government bodies and agencies.  To register for livestream attendance, click here.

So, what do you think?  Are you going to attend the conference in person or via livestream?  There’s still time to register!  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.

Now, Wait Just an Internet Minute!: eDiscovery Trends

Have I mentioned lately that I love…an infographic?  Well, let me mention it again!  The past three years, we’ve taken a look at a terrific infographic each year that illustrated what happens within the internet in a typical minute.  Last week, the 2019 internet minute graphic came out, so, let’s take a look at what happens in an internet minute in 2019.

The updated graphic shown above, once again created by Lori Lewis, illustrates what happens within the internet in a typical minute in 2019.  As always, there are a couple of different categories tracked in this graphic than last year’s, but most are the same and those that are carried forward are, once again, (almost) all up compared to last year – some more than others.  Once again, Netflix more than doubled and Instagram nearly doubled, while others sources showed more incremental gains.

Here is a comparison between 2018 and 2019 (we previously published the graphic for 2016 and 2017):

Needless to say, I’ll be discussing this in my presentation next week at the University of Florida E-Discovery Conference.

In her post, Lori also goes through some of her observations on the trends.  Once again, I can’t vouch for the accuracy of the numbers, so take them for what it’s worth.  So, why do I love infographics so much?  One reason is because they make my job easier!  :o)

So, what do you think?  How have the challenges of various sources of data affected your organization?  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.

According to Consilio, Strong Majority of Companies are Increasing Investment in Detecting “Bad Behaviors”: eDiscovery Trends

As I’ll be discussing in my presentation next week at the University of Florida E-Discovery Conference, there are a lot of reasons why organizations should be focusing a lot more of their eDiscovery efforts on compliance and investigations.  Last week, Consilio released the results of a survey that indicates that they appear to be doing just that.

In their release which details the results of a survey of 138 legal professionals conducted at this year’s Legalweek conference in New York, the majority of legal professionals (77 percent) believe their companies have either “somewhat” or “to a great extent” increased investment in resources to detect “bad behaviors” that go against the company’s mission (i.e. discrimination, sexual harassment, fraud, IP theft, etc.).

The survey also found that many organizations use more than one approach to facilitate investigations, though most were handled internally through the compliance department (66 percent) and/or investigations department (45 percent). In addition, 28 percent of respondents said their companies facilitate investigations externally through a law firm, followed by investigations facilitated via consultants at 16 percent.

“Compliance departments that are running most internal investigations often are better equipped to detect financial vs. non-financial corporate misconduct such as fraud or embezzlement,” said Roger Miller, Managing Director at Consilio. “In our experience, technology used by compliance departments largely relies on simple keyword and/or number-based searches. However, detection of non-financial wrongdoing at companies through digital communications like email, IM, and text is opaque and often requires more sophisticated technology, such as contextual analytics to identify.”

Miller went on to comment, “In a hypothetical keyword search to detect the occurrence of bribery in a company, contextual analytics provide the ability to search for the definition of the word “bribe” or use its legal definition in the FCPA and/or UK Bribery Act. This technology allows investigators to identify incriminating document(s) even if a bad actor is trying to obfuscate their misconduct.”

Respondents cited fraud (72 percent) among the most common types of investigations at their company, to their knowledge. This was followed by non-financial “bad behaviors” including: discrimination (60 percent), IP theft (52 percent), and sexual harassment (51 percent). The least common investigations cited were tied to antitrust/pricing fixing (42 percent) and the FCPA/UK Bribery Act (29 percent).

Interestingly, 62 percent of legal professionals said that they are very confident their company is proactively identifying “bad behaviors” that go against the company’s mission. Further, when asked whether their company has existing policies and/or technology, such as financial or behavioral audits and communication monitoring, to identify high risk behavior in employees, an overwhelming majority (74 percent) said these measures are in place.

Those numbers surprise me, given the challenge of big data, the increasing variety of data sources to track and the reported lack of companies that have a formal information governance policy.  Do these companies really have things as under control as they indicated?  I wonder.

So, what do you think?  Are you surprised by any of these stats?  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.