eDiscovery Daily Blog

Kelly Twigger of ESI Attorneys: eDiscovery Trends 2018

This is the sixth of the 2018 Legaltech New York (LTNY) Thought Leader Interview series.  eDiscovery Daily interviewed several thought leaders at LTNY this year (and some afterward) to get their observations regarding trends at the show and generally within the eDiscovery industry.

Today’s thought leader is Kelly Twigger.  Kelly is a Discovery Strategist and the Principal of ESI Attorneys, one of the first law firms in the country dedicated to advising clients on the risks and challenges in ESI, including eDiscovery. ESI Attorneys works differently than a traditional law firm – they partner with businesses, law firms and municipalities that do not have discovery counsel knowledgeable to both advise on planning and preparing for eDiscovery and act as discovery counsel across litigation matters to achieve consistency and predictability. Kelly also has a passion for ensuring that lawyers and legal professionals have the tools they need to understand and leverage the power of ESI in discovery, and has developed a SaaS based platform to provide the ability for lawyers to get up to speed and stay there with eDiscovery Assistant.  eDiscovery Assistant is a web based curated eDiscovery research tool and learning center that allows users to conduct eDiscovery specific case law research, use curated discovery rules, forms and checklists together with a Learning Center that rethinks the delivery of legal education. CloudNine uses eDiscovery Assistant to identify and provide case law on this blog. In 2014, the Wisconsin State Bar recognized Kelly as a Legal Innovator for her development of eDiscovery Assistant. Kelly is a regular speaker at national and local events, blogger and the eDiscovery columnist for Above the Law.

What were your general observations about LTNY this year?

{Interviewed after the show}

If I had to pick one word to describe Legaltech this year, I would use the word change. I think that it was clear that the format of Legaltech is undergoing a substantial amount of change, both in terms of personnel and the approach to the show. It is not on the grand scale that it used to be, but it’s still the place to meet up with industry colleagues and get a glimpse of what’s happening in legal tech. The show had less focus on eDiscovery this year – and I attribute that to three things:  the consolidation of service providers in the space, the perceived maturity of the eDiscovery market (it’s not), and the development of new areas of risk in legal that are sexy – artificial intelligence, blockchain, etc. No question those issues are stealing the show in conversations. I saw some pretty amazing smaller companies with revolutionary (for the legal space) products that can start allowing some of the change in the practice of law that we’ve been talking about for a decade. I saw significantly less service providers at the show, because most of those folks moved to off-site meetings instead of having a presence on the vendor floor.  I felt like this year’s show gave credence that we are starting to recognize the changes in the practice of law – boutique firms is a good example – and to build the technology that can support them.

If you were “queen of LTNY” for a year, what kind of changes would you make?

Wow, now that’s a question. What changes would I make to the show? I was driving before we sat down and to talk, and I was thinking about Legaltech in relation to some of the other conferences in which I participate. The Masters Conference is one, the University of Florida Conference in which you and I are going to be on a panel together (tomorrow) is one. I feel like my learning is accelerated greater at those types of events where they are more intimate, where there’s more interaction between the people who were there versus Legaltech.

Legaltech has great panels, but they’re so spread out, in so many different rooms, with so many other events going on at the same time, and so many folks setting up private meetings outside of the conference. It’s a very different dynamic. I would restructure it to encourage those meetings, but also to allow participants to take advantage of the sessions. Why not acknowledge the need to have those meetings and build them into the show? I run from place to place most of the day – my fitness tracker logs many miles a day at Legaltech. It’s too hard to fit everything in a two to three day period that you want to. I’d like to see it facilitated better to make both of those things possibilities.

I’m not an event planner and that’s an easy thing for me to say and a hard thing to make happen. I’m not sure if that’s constructive feedback, or if ALM wants to hear it. But, that’s my thought. You’re getting so many truly knowledgeable people in a space — not just speakers but participants as well — who bring so much to the table from a support focus, from a paralegal focus, from a lawyer focus, from a consultant focus, and I don’t know that the event capitalizes on the value that comes to that conference in the format that it currently has. What I would love to see is the ability for more interaction to capitalize on that knowledge base.

eDiscovery Assistant has a lot of features and resources available. Obviously, one of the most notable aspects of that is all the case law you cover on your site. Do you have any observations on key trends you’ve seen with regards to the eDiscovery case law lately that has been evident from your perspective?

Yes. eDiscovery Assistant is our platform where we really strive to be a resource for people who are engaging in electronic discovery. eDA does not handle data, it’s a strategy tool. It’s a combination of legal research for discovery and a place to get answers on demand when you have to respond to the motion to compel or draft RFP’s on how to request Facebook data. The case law has been aplenty already for 2018 – as of March 24, we have 192 discovery decisions from across the country in the database, all tagged and able to be sorted by eDiscovery issue (think proportionality, social media, form of production, sanctions, etc.).

I’m seeing some inconsistency in application of the amendments from 2015. I’m also seeing that we don’t necessarily have lawyers who are coming to the table more informed about eDiscovery or how to argue issues or educate the judges. In terms of development, we’re seeing a lot more case law in social media, but primarily within the criminal context. We’re starting to see some really interesting developments with cloud-based issues, like the U.S. v. Microsoft Corp. case.

The Supreme Court heard U.S. v. Microsoft Corp. in late February on the issue of whether Microsoft should be required to pull data back from Ireland when the data actually lives in Ireland and not in the United States. The case will have a fundamental impact on the interpretation of the Stored Communications Act, how and where data is stored, and what the government’s reach is under that law. The decision is going to have a huge impact on businesses and the way that we manage our data as consumers from a cloud perspective. How many cloud based applications are you using?  I probably have 50 or more. I’m interested to see what else will come about this year in terms of development, but so far in the case law, we’re still waiting on new things to come about and lawyers to grasp these concepts and argue them effectively to the court. We’re still seeing a lack of education that I’d like to change. Clients deserve the representation on these issues, and we’ve never had such rapid development in an area of the law like we are seeing now. We have 910 cases in 2017 in eDA. 910 cases? That’s crazy.

One of the hotter topics this year at LTNY was GDPR. Where do you think the majority of organizations stand with GDPR? How do you think these next few months are going to unfold?

What I’m seeing with GDPR and working towards compliance varies tremendously across the size of organizations. There still remains a lot of confusion about the applicability of GDPR and what organizations need to be thinking about, and whether they need to be. If you are thinking approaching GDPR compliance, what it is that you specifically need to be addressing? Some of that goes back to the fact that information governance is not as prominent in every organization as it should be, or that those of us in this space would like to think that it should be. I’m not sure that I have great answers for you on GDPR, except that the next few months are going to be very interesting. I think that the enforcement and what comes out of GDPR is going to be the most telling. If eDiscovery is any indication, we won’t see a lot of action for some organizations until we see some enforcement decisions that really bring about the emphatic nature of the privacy regulations.

With regard to eDiscovery, information governance and cybersecurity, what are people not talking enough about that they should be?

That varies by organization. When we have panel discussions, there’s often a lot of discussion at the very high level of cybersecurity, GDPR, or blockchain, and privacy issues. eDiscovery is getting pushed to the wayside prematurely, almost as if some folks are tired of talking about it. I don’t just say that because it’s what we do every day, but because I see it every single day – lawyers at every size organization who don’t know the basics or the technology and how to ask the questions and engage effectively in eDiscovery. A lawyer the other day told me he had friends retire from practicing rather than wade into eDiscovery, it causes that much angst. There are many, many, organizations, law firms and clients in general that are still down at the very base considerations of, “we know we need to be thinking more about ESI and what we’re doing with it, but we don’t know how to think about those things, or what our goals need to be, or how to structure them, because we’re not used to working with business information or governance IT altogether. We’re still in that silo kind of fashion.”  While the market has matured in service delivery, the clients are not there yet. There are a lot of basic things in information governance and eDiscovery that still need to be considered. The more risks you have in cybersecurity and these other issues, the more you’re likely to have tackled them, but those are also risks that are addressed by IT directly and so the liaison between the two isn’t as difficult as it is with eDiscovery. We’ve still got a long way to go.

What would you like our readers to know about things you’re working on?

We are working to solve the problem that I am passionate about – getting lawyers and legal professionals knowledgeable about eDiscovery and getting the clients the representation they need. That there are folks who really don’t know how to get started, lawyers who don’t know how to handle a case with significant or even any electronic discovery involved, which most cases are now – whether they’re law firms, whether they’re lawyers in-house or whether they’re government attorneys. If we want folks to be able to have the ability to understand what the processes are in electronic discovery and dealing with privacy and even some cybersecurity issues, and how to be able to address them, we have to solve the education and knowledge problem first, and that’s what we are trying to do by rethinking the delivery of education in short, manageable and practical chunks.

As lawyers, our job is to issue spot, and we can’t issue spot what we don’t know. In eDiscovery Assistant, we’ve built an online community of users with a knowledge base and continuing education to help tell them by answering questions that arise with developments in technology and the law. For example, here are the issues, now that your clients are migrating to Office 365, here the issues in capturing social media. Here are the issues when you’re using a platform and your service provider suddenly goes under. What do you need to be thinking about? How do you set up contract review? How do you collect any kind of data when you’re sitting in your office and you suddenly have a client’s hard drive? We set out to build a platform that addresses the practical needs of lawyers who have little time, increased client demands, AFA’s etc. and can still give them a credible understanding of what they need to do in eDiscovery. It’s very unique to the legal space. We’ve never had anything like this. We want to create a space where lawyers and legal professionals and anyone who touches the eDiscovery process – these areas where we’re dealing with ESI issues, privacy and cybersecurity and the like – will be able to come in and get up to speed quickly. That’s really what we’re working on. We’re rethinking both the delivery of legal research and also legal education on these topics. We’re really excited about what we’re doing and looking forward towards 2018 has to bring.

Thanks, Kelly, for participating in the interview!

Also, we’re getting ever closer to the University of Florida E-Discovery Conference, which will be held this Thursday, March 29.  As always, the conference will be conducted in Gainesville, FL on the University of Florida Levin College of Law campus (as well as being livestreamed), with CLE-accredited sessions all day from 8am to 5:30pm ET.  I (Doug) am on a panel discussion at 9am ET in a session titled Getting Critical Information From The Tough Locations – Cloud, IOT, Social Media, And Smartphones! with Craig Ball, Kelly, and with Judge Amanda Arnold Sansone.  Click here to register for the conference – it’s only $199 for the entire day in person and only $99 for livestream attendance.  Don’t miss it!

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.