Insight into where e-discovery, information governance cybersecurity, and digital transformation are heading – who is doing what now or in the future, what works and what doesn’t, and what people wish they could do but can’t – gleaned from recent publications
E-discovery software ratings – G2 Crowd published its e-discovery software ratings, displaying programs or platforms in a quadrant, listing software its considered to be the top products based on user satisfaction, and ordering them by ease of use calculated by a proprietary algorithm. As one who used to compile and publish such information, I encourage you to use these and similar analyses with care and caution.
CYBERSECURITY & DATA PRIVACY
Anticipated congressional activity – For thoughts on where the 116th Congress may go with cybersecurity and data privacy, check out King & Spalding‘s Dec. 18 summary of anticipated investigations and similar efforts at oversight.
European Union moving forward with “e-evidence” legislation – King & Spalding reported that the EU is moving forward with a bill to enable law enforcement authorities to access digital evidence held by private companies in other member states and outside the EU. Authorities would be able to use two new transnational legal instruments, the European Production Order Certificate and the European Preservation Order Certificate.
2019 cyber/privacy predictions – Legaltech news published its 2019 cybersecurity and privacy predictions, gathered from attorneys and experts in the field. They anticipate we will see growth in privacy risk management efforts; GDPR whistleblowing; chief privacy officers and similar positions; law firm security audits; privacy legislation; and more.
Get ready for the CCPA – Baker McKenzie lawyers put together a two-part series on the steps organization should consider taking when implementing the California Consumer Privacy Act of 2018. Check out Part 1, from Dec. 10, and Part 2, from Dec. 18.
LEGAL TECHNOLOGY & DIGITAL TRANSFORMATION
On algorithms and biases – Cass Sunstein recently published a paper on SSRN, Algorithms, Correcting Biases, with the thesis that for purposes of law and policy algorithms may be better that humans at making at least certain types of predictions.
E-DISCOVERY CASE LAW
Recent e-discovery decisions
- Small v. University Medical Center, 2018 WL 3795238 (D. Nev. Aug. 9, 2018) – adverse jury instruction and monetary sanctions for failing to identify and preserve relevant ESI.
- Walker v. Coffey, 2018 WL 4496344 (3d Cir. Sept. 20, 2018) – individuals did not have clearly established 4th Amendment right to have content of their work email remain free from law enforcement search.
- Garrett v. Univ. of S. Fla. Bd. of Trs., 2018 WL 4383054 (M.D. Fla. Sept. 14, 2018) – request for forensic examinations of personal computer and cellphone disproportionate to needs of case; party still required to produce text messages and be subject to reopened deposition examination.
- ComLab, Corp. v. Kal Tire, 2018 WL 4333987 (S.D.N.Y. Sept. 11, 2018) – terminative sanction after finding clear and convincing evidence that party willfully fabricated emails in the course of discovery and the deleted native versions to conceal fraud.