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Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

Cloud Data is Within Defendant’s Possession, Custody and Control, Court Rules: eDiscovery Case Law

This case is a few months old, but is one of the cases we will cover in next week’s webcast Key eDiscovery Case Law Review for First Half of 2017 (click here to sign up)…

In Williams v. Angie’s List, No. 1:16-00878-WTL-MJD (S.D. Ind. April 10, 2017), Indiana Magistrate Judge Mark J. Dinsmore found that the plaintiffs “have met their burden of demonstrating” that the defendant has a legal right to obtain background data in Salesforce and that “Plaintiffs request for production properly seeks documents within Angie’s List’s ‘possession, custody, or control’ under Rule 34(a).”  He also denied the defendant’s request for cost shifting.

Case Background

In this case where 48 current and former employees of Defendant claimed they were entitled to “substantial compensation” for hours worked without pay, those plaintiff claimed that the defendant instructed them to underreport their overtime hours on their computerized time records.  Because the plaintiffs frequently worked from home, they sought production of “background data” automatically recorded while they were working in the defendant’s sales platform, Salesforce, in an effort to “close the gaps” allegedly left by the other records.

The defendant argued that the plaintiffs’ request for the Salesforce records falls outside of Rule 34(a)(1) because the records are outside of the defendant’s “possession, custody, or control” because Salesforce is a third-party provider of services and the defendant has no greater rights to the background data than any other person. The defendant also cited a $15,000 invoice it had received from Salesforce for the background data it had already provided to the plaintiffs.  The plaintiffs, in reply, argued that the defendant’s argument is belied by their conduct in producing a year’s worth of background data.  The defendant also argued if the Court grants the Motion, it should apportion some or all of the costs of production to the plaintiffs.

Judge’s Ruling

In making his ruling, Judge Dinsmore observed that “evidence before the Court demonstrates that Angie’s List and Salesforce have a longstanding contractual relationship and that the background data is recorded ‘for’ Angie’s List as part of the ordinary course of their business relationship. Even while end users such as Angie’s List ‘ordinarily’ do not access such data, the evidence clearly demonstrates that they are able to do so upon asking. In fact, the most compelling fact before the Court is that Angie’s List, despite dragging its feet and protesting vociferously, were actually able to retrieve and produce one year’s of the background data, collected for Angie’s List as part of its use of Salesforce’s sales platform, to Plaintiffs in discovery. The fact that Angie’s List has already produced one-third of the requested data, coupled with the evidence demonstrating the relationship between Angie’s List and Salesforce, compels the conclusion that Angie’s List has a ‘legal right to obtain’ the discovery sought.”

As a result, Judge Dinsmore concluded that “Plaintiffs request for production properly seeks documents within Angie’s List’s “possession, custody, or control” under Rule 34(a).”  After acknowledging the Court’s authority to “proportion the costs of e-discovery in cases of undue cost or burden”, Judge Dinsmore considered eight proportionality related factors to rule against cost shifting of some of the production costs to the plaintiffs.

So, what do you think?  Should the plaintiffs have been required to split the costs?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

DOJ Asks SCOTUS to Take on Microsoft Case and Verizon Suffers its own Data Breach: eDiscovery Trends

A rare two-topic day, but both are notable…

Remember the Microsoft Ireland Warrant case, where the Second Circuit reversed earlier rulings and denied the government’s efforts to compel Microsoft to provide emails in that case?  It may not be over yet.

According to The Recorder (Government Asks SCOTUS to Overturn Microsoft Decision on Overseas Data, written by Ben Hancock), the Department of Justice last month asked the U.S. Supreme Court to overturn that landmark appeals court decision handed down last summer in favor of Microsoft Corp. that put their company data stored overseas mostly out of reach of U.S. law enforcement.  The case stems from a warrant issued in December 2013 by a U.S. magistrate judge in the Southern District of New York directing Microsoft to turn over a criminal suspect’s email data. Microsoft determined that the data was stored at its center in Dublin, and subsequently moved to quash the warrant. The district judge denied that request, but Microsoft prevailed in an appeal to the circuit court.

Here’s a link to the Petition for a Writ of Certiorari filed by the DOJ.

If the government’s petition is taken up by the high court, its decision could introduce some measure of clarity (and hopefully consistency) in the multiple legal battles playing out around the country over whether prosecutors can enforce warrants for private data stored abroad in the cloud.  For example, while Microsoft has prevailed so far in this case, Google has had two rulings go against it earlier this year in similar cases.

“It seems backward to keep arguing in court when there is positive momentum in Congress toward better law for everyone,” Brad Smith, Microsoft’s chief legal officer, said in a blog post responding to the DOJ petition. “The DOJ’s position would put businesses in impossible conflict-of-law situations and hurt the security, jobs, and personal rights of Americans.”

It will be interesting to see if SCOTUS takes the case, or we see legislation that clarifies expectations regarding data stored overseas.  Thanks to ACEDS for the tip on this story.

In other news…

As reported by ZDNet, As many as 14 million records of subscribers who called Verizon’s customer services in the past six months were found on an unprotected Amazon S3 storage server controlled by an employee of Nice Systems, an Israel-based company.  The data was downloadable by anyone with the easy-to-guess web address.

Chris Vickery, director of cyber risk research at security firm UpGuard, who found the data, privately told Verizon of the exposure shortly after it was discovered in late-June.  It took over a week before the data was eventually secured.  The customer records were contained in log files that were generated when Verizon customers in the last six months called customer service.

Each record included a customer’s name, a cell phone number, and their account PIN – which if obtained would grant anyone access to a subscriber’s account, according to a Verizon call center representative, who, according to ZDNet spoke on the condition of anonymity as they were not authorized to speak to the press.

A Verizon spokesperson told CNBC on Wednesday that, “[a]s a media outlet recently reported, an employee of one of our vendors put information into a cloud storage area and incorrectly set the storage to allow external access.  We have been able to confirm that the only access to the cloud storage area by a person other than Verizon or its vendor was a researcher who brought this issue to our attention. In other words, there has been no loss or theft of Verizon or Verizon customer information.”

Verizon said the subscribers affected was “overstated” and that the PINs that were available during the breach aren’t actually linked to customer accounts but rather were numbers used to authenticate customers at call centers.

Verizon, of course, produces its excellent Data Breach Investigations Report every year (we’ve covered it the last three years).  Will they have anything to say about their own data breach in next year’s report?  We’ll see.

So, what do you think?  Should data stored internationally, but accessed in the US, be subject to subpoena?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Also, if you’re going to be in Houston on July 20, Women in eDiscovery (WiE) Houston Chapter, in partnership with South Texas College of Law, will be hosting the inaugural eDiscovery “Legal Technology Showcase & Conference” at South Texas College of Law in downtown Houston.  I will be participating as a panelist on the “State of the Industry” panel and my colleague, Karen, will be moderating the “Legal Operations and Litigation Support” panel.  Click here for more information about the conference, including how to register!

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

Today’s the Day to Learn Why There Has Never Been a Better Time to Embrace eDiscovery: eDiscovery Trends

State of the art eDiscovery technology used to be only available to the largest law firms and corporations. Smaller firms and organizations were essentially priced out of the market and couldn’t afford the solutions that could be used by the “big boys” to manage their discovery workloads. Thankfully, times have changed – thanks to cloud-based, software-as-a-service (“SaaS”) automated solutions that have made full-featured eDiscovery solutions affordable for even small and solo firms.  Today, you have an opportunity to find out how to take advantage of that.

Today at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast How SaaS Automation Has Revolutionized eDiscovery for Solo and Small Firms.  This one-hour webcast will discuss how SaaS automation technology has revolutionized eDiscovery for solo and small firms today and why there has never been a better time for those firms to embrace eDiscovery.  Examples of topics being discussed include:

  • How Automation and the Cloud is Affecting All Industries, including eDiscovery
  • Drivers for the eDiscovery Automation Revolution
  • The Impact of Automation and the Cloud on the Lawyer Job Market
  • The Evolution of eDiscovery Technology
  • Whip Me, Beat Me, Call Me EDna: Two Challenges, Seven Years Apart
  • Key Components of a SaaS eDiscovery Automation Solution
  • Cost Alternatives for SaaS eDiscovery Automation Solutions
  • Can Automation Really Disrupt the eDiscovery Industry?

I’ll be presenting today’s webcast, along with Karen DeSouza, Director of Review Services at CloudNine, and we will discuss why there has never been a better time for small firms to embrace eDiscovery, as well as how to simplify discovery for any firm or organization.  To register for today’s webcast, click here.

So, what do you think?  Are you a small firm struggling to get control of eDiscovery, at a price your firm can afford?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Few States Still Have an Ethics Opinion Regarding Lawyer Cloud Usage: eDiscovery Best Practices

The Legal Technology Resource Center (LTRC) of the American Bar Association’s (ABA) web site has a great resource for those who want more information regarding a variety of technical topics, including the ethics for lawyers in using and storing client data in the cloud.  However, few states so far have published ethics opinions on the topic.

On their site in a page entitled Cloud Ethics Opinions Around the U.S., the ABA provides an interactive map of the states (see the image of it above), with the states that have published ethics opinions shown in blue.  On the actual site, you can either click on the state to scroll down to it or manually scroll down to the state by name alphabetically (more or less, the list has “Nevada” after “New Hampshire”, “New Jersey” and “New York”, just sayin’).  According to the ABA, here are the states that have published ethics opinions (with links to each state’s opinion):

If you counted, that’s 21* total states with opinions – less than half of the total state jurisdictions.  When we covered this three years ago, there were only 14 states at that time, so that’s at least some progress.

If you don’t feel like reading all of the opinions word for word, the ABA site provides two tabs below the interactive map:

  • Quick Reference tab that identifies whether cloud usage for client data is permitted (so far, all of the states listed above say “Yes”), the standard for use (currently all states with opinions enforce a reasonable care standard) and a bullet point list of specific requirements or recommendations;
  • Opinion Summaries tab that provides a brief summary for each of the opinions.

As the site notes, “in most opinions, the specific steps or factors listed are intended as non-binding recommendations or suggestions. Best practices may evolve depending on the sensitivity of the data or changes in the technology.”  Also, the site identifies opinions (Arizona, New Jersey and Washington to date) where the opinions address issues which aren’t directly labeled cloud computing or software as a service, but which share similar technology (e.g.. online backup and file storage).

Hopefully, more states will follow the examples of these 21 states and publish their own opinions soon.

*Thanks to Mark C. Palmer for pointing us to the opinion in Illinois!

So, what do you think? Are you surprised that more states don’t have published cloud ethics opinions?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

78 is Great! eDiscovery Daily Is Seventy Eight! (Months Old, That Is)

A new record!  (Get it?)  Seventy eight months ago today (a.k.a., 6 1/2 years), eDiscovery Daily was launched.  It’s hard to believe that it has been 6 1/2 years since our first three posts debuted on our first day, September 20, 2010.  Now, we’re up to 1,656 lifetime posts, and so much has happened in the industry that we’ve covered.

Twice a year, we like to take a look back at some of the important stories and topics during that time.  So, here are just a few of the posts over the last six months you may have missed.  Enjoy!

Thanks, once again, for your support!  Our subscriber base and daily views continue to grow, and we owe it all to you!  Thanks for the interest you’ve shown in the topics!  We will do our best to continue to provide interesting and useful eDiscovery news and analysis.  And, as always, please share any comments you might have or if you’d like to know more about a particular topic!

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

George Socha of BDO: eDiscovery Trends

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thanks, George, for participating in the interview!

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

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

Brad Jenkins of CloudNine: eDiscovery Trends

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

Today’s thought leader is Brad Jenkins of CloudNine™.  Brad has over 20 years of experience as an entrepreneur, as well as 15 years leading customer focused companies in the litigation technology arena. Brad also has authored several articles on document management and litigation support issues, and has appeared as a speaker before national audiences on document management practices and solutions.  He’s also my boss!  🙂

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

Once again, a majority of my time at LTNY was spent in meetings with colleagues and business partners as CloudNine had a suite and we had several meetings set up over the course of the three days of the show.  It seems that the meetings outside the show have become as big as the show itself.  Several people that I met with had hardly spent any time (if any) at the show when I met with them.  Because it’s the biggest conference of the year, LTNY provides a unique opportunity for face to face meetings you don’t get during the rest of the year, so it pays to take advantage of that opportunity.  Unfortunately, that comes at the expense of attending most of the conference itself.

I was able to attend some of the conference and spent a little time in the exhibit hall.  Based on what I saw, attendance seemed down this year and some of the exhibitors that I spoke with seemed to agree.  I assume the decision by ALM to charge a fee for the Exhibits Plus passes for the first time ever had an impact on attendance in the exhibit hall.  Not surprisingly, some criticized that decision, so it will be interesting to see if exhibitors push back on that and if ALM decides to charge that fee again next year.

Regardless, with so many opportunities for providers to reach prospects in a less expensive manner and with a market that clearly appears to be consolidating, I would expect that it will continue to be a challenge for ALM to retain exhibitors.  Over the past few years, the number of exhibitors have dropped and I wouldn’t be surprised to see that trend continue unless ALM gets creative in identifying new ways to attract potential exhibitors to the conference.

What about general industry trends?  Are there any notable trends that you’ve observed?

Last year, I noted a clear trend toward SaaS automation within eDiscovery and I think it’s clear that trend has not only continued, but expanded.  In addition to the investment in some automation providers, and the emergence of others like our company, CloudNine, we’ve seen several of the “big boys” (such as Ipro, Thomson Reuters and kCura) roll out their own cloud-based automation initiatives.  In the past year, we also saw organizations like Gartner acknowledge that cloud eDiscovery solutions are gaining momentum in the market due to their ease of use and competitive and straightforward pricing structures.  The move to the cloud for eDiscovery reflects a similar migration to the cloud within organizations for everything from SalesForce.com to Office 365.  In fact, Forbes.com recently published an article that reflected a prediction that, by 2020, 92% of everything we do will be in the cloud.  So, it makes sense that eDiscovery solutions would reflect that trend.

Another trend that has been happening for a few years and is certainly accelerating is the move to the left of the EDRM model for discovery and analytics.  With estimates of data doubling in organizations every 1.2 years, organizations are certainly having to turn to technology to address the challenges associated with that explosion of data.  The need for discovery is no longer initiated just by trigger events such as litigation or investigations – the need for organizations to perform discovery is a perpetual need.  You’re seeing organizations beginning to focus on data discovery to explore patterns and trends within unstructured data, even at the point of data creation, to gather insight into the data they have.  Then, when those trigger events occur, organizations are progressing into more traditional legal discovery to identify, preserve, collect, process, analyze, review and produce key ESI to support legal or investigative activities.  I think you’ll see that trend toward an increased focus on data discovery continue to accelerate as a way for organizations to address the challenges associated with the explosion of data in their environments.

One last trend that I’ll mention is the growing number of state bar associations that have adopted some sort of expectation or guidance for technology competence among their bar members.  I believe that there are 26 states now that have adopted some version of Comment 8 to ABA Model Rule 1.1 and Florida has become the first state to actually mandate technology CLE for their attorneys – three hours of technology CLE over a three year period.  At CloudNine, we believe that educated clients make the best clients and we’ve tried to do our part for the past several years to help educate the legal profession with our blog and, this year, we are adding educational webcasts (with CLE certification in some states) to help educate lawyers.  While I think we still have a long way to go before the legal profession is generally knowledgeable about technology, I think the increased focus on technology competence along with the continued trend toward simplified discovery automation puts attorneys in a better position than ever to use technology to support their discovery needs.

What are you working on that you’d like our readers to know about?

In addition to the educational webcasts that we have started conducting this year, CloudNine recently announced our latest accomplishment in simplified discovery automation with our integration with Relativity that provides Relativity users with a client application that automates the upload, processing, and ingestion of ESI into Relativity, directly from their desktop.  Just as CloudNine users have been able to automate the upload, processing, and ingestion of ESI into CloudNine for several years now, the universe of more than 150,000 Relativity users will now be able to do the same.

We have several other new features and capabilities that provide simplified discovery automation capabilities to our clients that are also in the works and I look forward to having more information to share on those soon.

We are also very active in the data discovery space that I referred to earlier, providing solutions and assistance to help clients address their data discovery needs.  We’re finding that the needs of organizations to gain insight into their data occurs long before litigation and other events trigger the duty of those organizations and CloudNine is at the forefront in helping organizations address their data discovery needs.

As I said during last year’s interview, we feel that CloudNine is the leader in simplifying discovery automation and our unique combination of Speed, Simplicity, Security and Services enables CloudNine to simplify discovery for our clients.  That continues to be our mission as a company and has been throughout our more than 14 years as a company assisting our clients.

Thanks, Brad, for participating in the interview!

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

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

Looking Back at Predictions That I Made Three Years Ago, Part 2: eDiscovery Predictions Revisited

Yesterday, I took a look back at two posts that comprised six eDiscovery predictions for 2014 that I wrote three years ago.  I thought it might be fun to look back at those posts to see how those predictions fared.  I covered the first three predictions yesterday, so today I’ll cover the last three.

Prediction 4: Data security will be more of an emphasis than ever, yet we will continue to see more data breach stories than ever.

If you follow our blog regularly, you know that we assign categories to each blog post to make it easier to find posts related to specific topics (that’s how you can quickly find all 500+ case law posts we have published since the inception of the blog back in September 2010).  In January of 2014, we hadn’t yet even created a “Security” category – that’s how little the topic was being discussed.  Now, we not only have a category, we currently have over 40 posts that have discussed data security and cybersecurity.  In addition to increased coverage on our blog, there are several other blogs and resources either dedicated to cybersecurity issues in the legal arena or at least covering them extensively.  So, there is plenty of discussion to go around.

Are we seeing more data breach stories than ever?  We’ve covered several breach stories on our blog, including this one about my hometown baseball team, this one about a website dedicated to cheating spouses (ok, maybe they had it coming) and this one about a Panamanian law firm that exposed (alleged) illicit offshore holdings of global political leaders and celebrities.  Not to mention the data breach associated with our recent presidential election.  Clearly, despite increased focus on protection from cybersecurity breaches, they still happen and happen frequently.

Prediction 5: Small to medium sized law firms will need to leverage virtual resources more than ever to compete.

Three years ago, it seemed clear to me that small to medium sized law firms would need to outsource more to compete with the big firms that could afford to insource eDiscovery services.  And, I wasn’t the only one advocating the benefits of outsourcing as people like eDiscovery thought leader Ralph Losey (author of the excellent e-Discovery Team® blog and member of big firm Jackson Lewis) were asking questions like “Why should you own and operate a nonlegal e-discovery business within your walls under the guise of a litigation support department?”

I’m not sure that I’ve seen much change in this area, with one exception.  More firms – small, medium and large – have embraced self-service SaaS automation eDiscovery platforms than ever before (and providers are taking note as many of the “big boy” providers are changing their business models to offer that option).  In my opinion, SaaS automation has definitely revolutionized eDiscovery for solo and small firms, giving them access (for the first time) to full-featured eDiscovery solutions that fit within their budget.  So, in that regard, they are able to compete with the big firms.

Prediction 6: Educating attorneys on eDiscovery best practices will continue to be a slow, painful process.

Year after year, I’ve asked various eDiscovery thought leaders at LegalTech New York (our seventh annual interview series is coming up next month!) if attorneys are beginning to “get” eDiscovery.  And, year after year, most of them say that we have a long way to go in that area.  Up to now, I agree.

But, things may finally be changing.  In 2015, California adopted Formal Opinion No. 2015-193, which discussed an attorney’s ethical duties in the handling of discovery of electronically stored information.  As of the beginning of 2017, more than half of all states – 26 in all – have some sort of ethical guidance with regard to understanding technology.  And, late last year, Florida mandated three hours of technology CLE for attorneys over a three year period, starting January 1 of this year (which is one reason why Florida is one of the states where we have approved CLE for our webcast next week).

It appears that more state bars are beginning to understand the importance for attorneys to understand the technology.  And, that technology is continuing to become easier to use.  That’s why we may finally be entering an age of technical competence for attorneys.  The prediction (that educating attorneys will continue to be slow and painful) is one prediction that I would be happy to be wrong about.

So, what do you think?  Has eDiscovery evolved like you thought it would?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

By 2020, 92 Percent of Everything We Do Will Be in The Cloud: eDiscovery Trends

In this case, I guess you could say that foresight is 2020… :o)

Before I begin, though, I should note that: Today is the last day to participate in the quarterly eDiscovery Business Confidence Survey being conducted by Complex Discovery and ACEDS!  It’s a simple nine question survey that literally takes about a minute to complete.  The more respondents there are, the more useful the results will be!  Click here to take the survey yourself.  Don’t forget!

According to an article on Forbes.com, by 2020, 92 percent of computing workloads will be processed by cloud data centers; versus only eight percent being processed by traditional data centers.

The article (With Internet Of Things And Big Data, 92% Of Everything We Do Will Be In The Cloud, written by Joe McKendrick and released earlier this month) references estimates released by Cisco that show that cloud traffic is likely to rise 3.7-fold by 2020, increasing 3.9 zettabytes (ZB) per year in 2015 (the latest full year data for which data is available) to 14.1 ZB per year by 2020.  (FYI, a zettabyte is one billion terabytes!)

Not surprisingly, Big Data and associated Internet of Things are a big part of this growth, according to the study’s authors.  By 2020, database, analytics and IoT workloads will account for 22% of total business workloads, compared to 20% in 2015. The total volume of data generated by IoT will reach 600 ZB per year by 2020, 275 times higher than projected traffic going from data centers to end users/devices (2.2 ZB); 39 times higher than total projected data center traffic (15.3 ZB).

The survey also finds that public cloud is growing faster than private cloud. By 2020, 68 percent (298 million) of the cloud workloads will be in public cloud data centers, up from 49 percent (66.3 million) in 2015.  However, the authors attribute much of that growth to hybrid cloud strategies, such as cloud bursting, which is “an example of hybrid cloud where daily computing requirements are handled by a private cloud, but for sudden spurts of demand the additional traffic demand — bursting — is handled by a public cloud.”  The authors also see a rise in Software as a Service (SaaS) for online applications, where by 2020, 74 percent of the total cloud workloads will be SaaS workloads, up from 65 percent currently.

Needless to say, with more data than ever in the cloud by 2020, eDiscovery will be conducted on more and more cloud-based data.  Fasten your seat belts and put your tray tables up!

So, what do you think?  Do you find yourself using the cloud more in your organization?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Here’s an Independent Review of CloudNine: eDiscovery Trends

If you love to read about legal technology, you probably have signed up for newsletters via Technolawyer.  Technolawyer has several useful newsletters for the tech-interested legal professional, including BlogWorld and LitigationWorld.  Recently, CloudNine was reviewed by Technolawyer with the resulting review published in the LitigationWorld newsletter.

Jennifer Dixon conducted the review.  The review was completely independent and not sponsored by CloudNine (all we did was provide a brief overview to her before she proceeded to review the platform).  Here are a couple of observations from Jennifer’s review of the platform:

  • “During my litigation career, I spent hours of my time on the phone with technical support attempting to coordinate uploading, review, and production. In light of these experiences, I find the CloudNine self-service model incredibly refreshing. It puts power into the reviewer’s hands, enabling you to customize your screen views, metadata, filtering, and production. The analytics tools provide simple visualizations of document batch contents, reducing surprises and confusion down the road. All the review tools you need for a well-organized document review are present and easy to use. CloudNine handles all of the most common document types found in today’s discovery projects. Sorting through thousands of emails will be a breeze.”
  • “For small cases in particular, CloudNine enables you to do it all yourself, saving you time and money. For larger cases, CloudNine offers consulting services for collection and processing. CloudNine easily earns a TechnoScore of A-.”

Thanks to Technolawyer and to Jennifer for the review of our platform.  We really appreciate it!

If you want more information or to check out the review, you can do so on our site here.  Here’s your chance to learn more about CloudNine, from an independent source!

So, what do you think?  Please share any comments you might have or if you’d like to know more about a particular topic.

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