ACEDS Community Newsletter for the Week of February 28

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February 28, 2019 | VOL. 8 | NO. 9

ACEDS Goes to Washington: E-Discovery Inside the White House by Frank
Ready, ALM Media
Read more

Sean O’Shea: Tips for Paralegals and Litigation Support Professionals –
February 2019
Read more

Legal Services Corp: LSC Moves Forward with Legal Navigator Project
Read more

John Patzakis, X1: 5 Key Takeaways from the Sedona Conference’s Social Media
eDiscovery Primer
Read more

3 Lessons From A Crypto Mock Trial via Bill Speros
Read more

Join ACEDS at the UF E-Discovery Conference 2019
Learn more and register here

LLM Law Review & ACEDS Co-Host Tokyo Summit – Sponsorship
Opportunities Available
Learn more and register here

ACEDS Is Very Grateful for Our Chapter Leaders
Read more

ScottP

ACEDS Affiliate News

LDM Global: Cyberattacks and the Legal Industry
Read more

QDiscovery Named to 20 Most Promising Legal Technology Solution Providers
2019 by CIOReview
Read more

Matthew Verga, XDD: Sampling a Well-Stocked Toolkit, ECA Fundamentals Series
Part 2
Read more

Women in eDiscovery Announces 2019 National Sponsors
Read more

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ACEDS Chapter News and Events

We are excited to announce new ACEDS Chapters are being formed in Gulf Coast
(LA, MS, AL), Charleston, South Africa, Toronto, Tokyo, Ireland, Kansas City, Seattle,
Dallas, Ohio, Atlanta, Sydney and Melbourne Australia. Please reach out to
chapters@aceds.org if you are interested in being part of the formation, steering
committee, or a member.

February 28 – Twin Cities – Legal Week Panel Discussion “What Was Hot in
LegalTech and Education”
Learn more and register here

March 7 – New England – Get a Head Start on Spring! Join ACEDS New
England & WiE Boston for a Social & Networking Reception
Learn more and register here

March 19 – Jacksonville – eDiscovery Lunch and Learn and Cocktail Reception
Learn more and register here

March 20 – Chicago – Reinventing eDiscovery for the AI World
Learn more and register here

March 27 – San Francisco – Roundtable Discussion: Information Governance
and eDiscovery
Learn more and register here

 

 

 

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ACEDS Is Very Grateful for Our Chapter Leaders

On Monday, February 25, Scott Petz, President of the ACEDS Detroit Chapter and Member at Dickinson Wright, promoted ACEDS at the Bench-Bar Conference with Wayne County Circuit Court & Detroit Bar about proposed amendments to Michigan discovery rules.

Shoutout @McKnightMeganP for capturing Scott in action!

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Sean O’Shea: Tips for Paralegals and Litigation Support Professionals – February 2019

1/29/2019: S.D. Fla. Ruling: Jury Can Decide Bad Faith Intent for Rule 37 Sanctions
In a slip and fall case, Carnival was found to have failed to take reasonable steps to preserve CCTV video.  Judge Goodman noted the fact that its 30(b)(6) representative testifies once or twice a week is proof that it is a sophisticated litigant.

1/30/2019: Action to Add PDFs to PowerPoint Files
Use an Adobe action to insert multiple PDFs on the slides of a presentation.

1/31/2019: Ernst & Young on Information Governance
E&Y has established 7 principles for information governance.

2/1/2019: Basel III
The Basel III international regulatory accord recommends a data governance policy.

2/2/2019: Python Script to read csv file and split onto new lines
Read and parse a file using strip and split in Python.

2/3/2019: Sort function: Python 2 v. Python 3
The syntax for the sort function changes in Python 3.

2/4/2019: Trouble Exporting Text of PDFs? Edit Tags in Acrobat
Adobe Acrobat uses tags to identify the reading order of a page, and its overall layout, accounting for tables, lists, and footers.

2/5/2019: D. Minn.: Unidentified Processing Cannot be Taxed under 28 U.S.C. § 1920
“’ESI Processing’ is a broad term, and SuperValu provides no explanation of the tasks performed in this subset of costs.”

2/6/2019: Reading a .csv file with Python’s csv module
Python’s csv module can be used to read and write to .csv files.

 

 

 

 

 

 

 

 

 

 

 

 

2/7/2019: EDRM TAR Guidelines
The new EDRM TAR guidelines recommend the use of a decision log to track attorney decisions about relevancy.

2/8/2019: Bit Recover Email Conversion Tools
Convert .mbox files to PDFs; .msg files; and a .pst archive.

2/9/2019: Running Google searches for specific file types
filetype:mbox -site:facebook.com will only find files posted to sites other than facebook.com

2/10/2019: Protective Order Addresses Microsoft Source Code
Protective order signed in patent suit against Microsoft specifies that material designated as, ‘HIGHLY CONFIDENTIAL – SOURCE CODE’ must be made available for inspection within 7 days of receiving a request to review it, on computer not connected to the internet.   No record can be made of the code other than handwritten notes which cannot copy the code verbatim.

2/11/2019: Workdays in Excel
Use the WORKDAY and NETWORKDAYS formulas to find the number of workdays in specified ranges.

2/13/2019: E.D. Wis.: Malware is a Device Under the Wiretap Act
In United States v. Hutchins the Court rejected the position of whitehat hacker Marcus Hutchins that malware is not a device under the Wiretap Act.

2/14/2019: Reformatting Rows With Cut-Off Text
When the full text of a cell can’t be shown with the height set to the 409.5 max, use this method to automatically split it into two rows.

2/15/2019:  Accessing Excel files with OpenPyXL
You can use the OpenPyXL module for Python to access Excel files.

 

 

 

 

 

 

 

 

2/16/2019: Get list of files in a folder with Python
Use the glob module to get a list of Excel files in a folder.

2/17/2019: Installing Pandas for Python
Pandas can only be installed with Python 3.5 or later.

2/18/2019: Count number of rows and columns in an Excel file with Python

 

 

 

 

 

 

 

 

 

 

 

 

 

2/19/2019: Judges Really Do Notice Legal Citations
“The Undersigned does not view the Bluebook requirement of a parallel case docket number in a Westlaw citation in an unreported case to be a hyper-technical, nit picky-type obligation.” Sosa v. Carnival Corp., No. 18-20957-CIV, 2019 U.S. Dist. LEXIS 12283, at *8 n.1 (S.D. Fla. Jan. 25, 2019)

2/20/2019: Use Python’s xlrd library to extract multiple columns or rows

2/21/2019: N.D. Cal. – ESI Discovery Not Proportional From Custodians Who Only Had an Interest in Trade Secrets
Court ruled that ESI discovery could be conducted from senior executives who obtained or used trade secret information, not those who wanted to learn about it.

2/22/2019: Python search to search multiple text files
Save python code in a text file with the extension .py then double-click it to run a search.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2/23/2019: Digital Signatures
A basic demo of how digital signatures work: a signer uses a private key to generate a hash value for message, which the recipient decrypts with a public key.

2/24/2019: District of South Carolina: Forensic Protocol Granted Where Mobile Devices Returned in 3 Hours
In Indus. Packaging Supplies v. Davidson, No. 6:18-0651-TMC, 2019 U.S. Dist. LEXIS 28143 (D.S.C. Feb. 22, 2019), a forensic protocol was granted where mobile devices must be returned in three hours and search terms not agreed to by parties are excluded.

2/25/2019: use /v option to exclude results
In Windows commands the  /v option excludes lines from results including the string listed after it.

2/26/2019: The SOC 2 Cloud Security Standard
The AICPA issues a SOC 2 cloud security certification which emphasizes baselines for normal activity; limiting false positive alerts; audit trails; and responding rapidly to attacks.

ACEDS Community Newsletter for the Week of February 21

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February 21, 2019 | VOL. 8 | NO. 8

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White House Executive Office Team Engages ACEDS to Deliver Onsite
Electronic Discovery Training
Read more

Dennis Kennedy, Dennis Kennedy Advisory Services LLC – Outside Law Firm
Panel Convergence – Innovation Driver or Innovation Destroyer?
Read more

ALM Media – Q&A: Getting Ready for the Emoji Law Revolution
Read more

George Socha, BDO: Weekly Trends Report – 2/20/2019 Insights
Read more

Join ACEDS at the UF E-Discovery Conference 2019
Learn more and register here

LLM Law Review & ACEDS Co-Host Tokyo Summit – Sponsorship Opportunities
Available
Learn more and register here

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ACEDS Affiliate News

Daniel Gold, Catalyst: The New AI Executive: 6 Must-Reads for Legal
Read more

Casey Sullivan, Logikcull: Logikcull Named as One of the 14 Best Remote
Companies to Work For
Read more

Matthew Verga, XDD: Clearing the Fog of War, ECA Fundamentals Series Part 1
Read more

Johannes Scholtes, ZyLAB: Happy Information Governance Day!
Read more

February 28 – CEDS Panel at the Master’s Conference: Everything I Learned About
Legal Ops I Learned in eDiscovery
Learn more and register here

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ACEDS Chapter News and Events

We are excited to announce new ACEDS Chapters are being formed in Gulf Coast
(LA, MS, AL), Charleston, South Africa, Toronto, Tokyo, Ireland, Kansas City, Seattle,
Dallas, Ohio, Atlanta, Sydney and Melbourne Australia. Please reach out to
chapters@aceds.org if you are interested in being part of the formation, steering
committee, or a member.

February 28 – Twin Cities – Legal Week Panel Discussion “What Was Hot in
LegalTech and Education”
Learn more and register here

March 7 – New England – Get a Head Start on Spring! Join ACEDS New England
& WiE Boston for a Social & Networking Reception
Learn more and register here

March 19 – Jacksonville – eDiscovery Lunch and Learn on “Meet and Confers
and Negotiating ESI Protocols”
Learn more and register here

 

 

 

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Weekly Trends Report – 2/20/2019 Insights

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

EDRM Publishes TAR Guidelines – My quick take on the new EDRM Technology Assisted Review (TAR) Guidelines, along with a detailed listing of the Guidelines’ contents.

Comments on the EDRM and Exterro survey of Federal judges:

Mandatory initial disclosures report – In case you missed it, last May the Advisory Committee to the Northern District of Illinois Mandatory Initial Discovery Pilot Program (MIDP) issued a report on the results of a survey it conducted of MIDP participants. The bottom line, according to one judge:  “No like!”

Emoji go to court – According to a report in The Verge, research from Santa Clara University law professor Eric Goldman has found an exponential rise in references to emoji and emoticons in US court opinions since 2004, and 30% of those opinions were in 2018. Read more about Professor Goldman’s research and thoughts about emoji and the law at What’s New With Emoji Law? An Interview.

CYBERSECURITY & DATA PRIVACY

Security breach notification laws – The National Conference of State Legislatures maintains a list of security breach notification laws, with links, for all 50 states, the District of Columbia, Guam, Puerto Rico and the Virgin Islands.

CCPA public forums takeaways – Sidley lawyers Christopher Fonzone and Sheri Porath Rockwell discuss their takaways from public forums being held by the California Attorney General. These forums are intended to collect input about the California Consumer Privacy Act.

CCPA summary – King & Spalding has published a client alert, Start Aiming Now: The California Consumer Privacy Act (CCPA) Is A Moving Target, And GDPR Compliance Isn’t Enough, that discusses the scope and implications of the California Consumer Privacy Act.

Michigan adopts NAIC Insurance Data Security Model Law – Sidley lawyers Thomas Cunningham and Shay Banerjee report that Michigan has become the third state to adopt the National Association of Insurance Commissioners’ (NAIC) Insurance Data Security Model Law.

More adoption: EDPR, CTR, and GDPR – Sidley lawyers William RM Long, Francesca Blythe, and Jasmine Agyekum write about the implications of the adoption by the European Data Protection Board (EDPB) of an opinion on the interplay between the EU Clinical Trials Regulation (CTR) and the EU General Data Protection Regulation (GDPR).

Privacy Shield review – Sidley lawyers William RM Long and Francesca Blythe report both that in December the European Commission announced publication of its report on the second annual review of the EU-US Privacy Shield, and that last month the White House announced its intent to nominate Keith Krack as undersecretary of state for economic growth, energy, and the environment, in which role he will function as the ombudsperson for the Privacy Shield.

GDRP, CCPA, and court records – Discussing the conflict between individuals’ right to be forgotten and the public’s right to know, the author suggests that the CCPA’s Safe Harbor Provision is a better path than the GDPR’s approach.

LEGAL TECHNOLOGY & DIGITAL TRANSFORMATION

Predicting lawsuit outcomes – The law firm of Herbert Smith Freehills has completed the first stage of its development partnership with Solomonic and has agreed to a deal to roll out Solomonic’s litigation analytics platform across the firm’s UK dispute teams, reports Solomonic.

New(ish) conferences: Inspire.Legal and the Big Law diaspora – Jae Um posts her observations on the Inspire.Legal conference and what it portends.

New(ish) conferences: ctrl ALT del – Bob Ambrogi reports on the Association of Legal Technologists’ second ctrl ALT del conference.

E-DISCOVERY CASE LAW

Recent e-discovery decisions

2/7/2019 – FRCP 37(e) – U.S. Magistrate Judge denied plaintiff’s motion for spoliation sanctions on two grounds. First, the Court found that plaintiff failed to meet the third of three requirements of FRCP 37(e). Defendant had a duty to preserve the surveillance video in question. Defendant did not take any steps to preserve the video. Plaintiff did not, however, prove to the Court’s satisfaction that the video could not be replaced or restored. Second, the Court found that even if plaintiff had met all three requirements, plaintiff had not proven defendant’s failure to preserve the video was the result of bad faith. Stovall v. Brykan Legends, LLC, No. 17-2412-JWL (D. Kan. Feb. 7, 2019).

UPCOMING EVENTS

Conferences, webinars, and the like can provide insight into where e-discovery, information governance cybersecurity, and digital transformation are heading

2/20/2018-3/15/2019 EVENTS

Start End TZ Type Location Host Title
2/20/19 1:00 PM 2/20/19 2:30 PM ET Webinar Strafford Obtaining and Admitting Cell Phone Evidence at Trial: Call Logs, Text Messages, and Location Data
2/25/19 7:30 AM 2/25/19 5:00 PM PT Conference Fremont, CA IAPP CCPA Comprehensive 2019
2/26/19 12:00 PM 2/26/19 1:00 PM ET Meeting Burlington, VT ILTA Ask the Expert – Infrastructure and Security with the CEO of Conversant Group
4/25/19 1:00 PM 4/25/19 2:00 PM ET Webinar ACEDS Optimize Your eDiscovery Spend with Business Intelligence
2/26/19 2:00 PM 2/26/19 3:00 PM ET Webinar CCBJ The Future of Engaging Outside Counsel
2/26/19 2:00 PM 2/26/19 3:00 PM ET Webinar Institute for Information Governance Forming Your IG Steering Committee
2/26/19 6:30 PM 2/26/19 10:00 PM BST Meeting London, UK Women in eDiscovery London Chapter Event – Communication, Peaks and Pitfalls
2/27/19 12:00 PM 2/27/19 1:00 PM ET Webinar HaystackID Active Learning in eDiscovery: From Analytics to Outcomes
2/27/19 1:00 PM 2/27/19 1:30 PM ET Webinar ACEDS Exterro Smart ECA: AI-Drive Early Case Assessment
2/27/19 1:00 PM 2/27/19 2:00 PM ET Webinar XDD An Ounce of Prevention: eDiscovery Project Planning
2/27/19 6:00 PM 3/2/19 3:00 PM CT Conference Chicago, IL ABA ABA TECHSHOW 2019
2/28/19 8:30 AM 2/28/19 5:00 PM ET Conference Toronto, Canada Canadian Legal Innovation Forum
2/28/19 8:00 AM 2/28/19 5:30 PM CT Conference Dallas, TX The Masters Conference Dallas Masters Conference
2/28/19 2/28/19 PT Conference San Francisco, CA The Cowen Group SOLID West
2/28/19 1:00 PM 2/28/19 2:00 PM ET Webinar Epiq The Growing Use of Audio Preservation and Collection
2/28/19 3:00 PM 2/28/19 4:00 PM CT Meeting Minneapolis, MN ACEDS Twin Cities Chapter Event – Legal Week Panel Discussion “What Was Hot in LegalTech and Education”
2/28/19 3/1/19 CT Conference Houston, TX The Sedona Conference The Sedona Conference Working Group 11 Annual Meeting 2019
3/5/19 8:00 AM 3/5/19 5:00 PM ET Conference New York, NY ARMA ARMA Metro NYC Spring Conference 2019
3/5/19 12:00 PM 3/5/19 1:00 PM ET Webinar Evolver Improving Control Through eDiscovery Managed Services
3/5/19 1:00 PM 3/5/19 2:00 PM ET Webinar ABA Best of ABA TECHSHOW: AI in Practice – The Robots Are Not Your Enemy
3/6/19 11:30 AM 3/8/19 12:40 PM MT Conference Phoenix, AZ ASU ASU-Arkfeld 8th Annual eDiscovery Conference
3/6/19 1:00 PM 3/6/19 2:00 PM ET Webinar ACEDS Size Doesn’t Matter: How Top Boutique Firms Are Winning Big Clients From Big Law
3/7/19 8:30 AM 7/8/19 1:00 PM ET Conference Charlotte, NC The Sedona Conference The 13th Annual Sedona Conference Institute Program on eDiscovery: Protecting Privacy, Confidentiality, and Privilege in Civil Litigation
3/7/19 12:00 PM 3/7/19 1:30 PM ET Meeting New York, NY Women in eDiscovery New York City – Save the date
3/7/19 2:00 PM ET Webinar FoundationLab Doing more with less: Transforming legal services delivery through productization
3/11/19 8:30 AM 3/14/19 4:00 PM BST Conference London, UK IAPP IAPP Data Protection Intensive: UK 2019
3/11/19 1:00 PM 3/11/19 2:30 PM ET Webinar ABA Cybersecurity for Lawyers: How to Anticipate, Investigate, and Litigate a Data Breach
3/11/19 12:00 PM 3/13/19 4:15 PM PT Conference San Diego, CA Techno Security & Digital Forensics Conference
3/13/19 1:00 PM 3/13/19 2:00 PM ET Webinar ACEDS 3 Judges Discuss the 2019 Federal Judges Survey Results
3/14/19 1:00 PM 3/14/19 2:00 PM ET Webinar MER Level Up! Access, Align and Automate your Information Governance

 

ANNOUNCEMENTS

Date Organization Title
2/12/2019 ·       Xact Data Discovery

·       QUiVX

XDD Acquires QUiVX eDiscovery to Further Expand Services on West Coast
2/13/2019 ·       DISCO Bunsow De Mory Selects DISCO for eDiscovery Firmwide
2/19/2019 ·       Axiom Knowable and Axiom Managed Solutions Spun Off from Axiom
2/19/2019 ·       Axiom Axiom Announces Confidential Submission of Draft Registration Statement for Proposed Initial Public Offering
2/19/2019 ·       Exterro Exterro’s Orchestrated E-Discovery Platform Approved as FedRAMP Ready

 

ADDITIONAL ARTICLES

Date Org By/About Title
1/25/2017 ·       Maas Consulting Group The Discovery Iceberg
2/11/2019 ·       Legaltech News Becoming the Killer Whale: Changing Mindsets Key to Law Firm Innovation
2/12/2019 ·       QDiscovery Keeping Personal Data Private in Mobile Device Discovery
2/12/2019 ·       Seyfarth Shaw The California Consumer Privacy Act of 2018: What Businesses Need to Know Now
2/14/2019 ·       Zapproved The Changing Face of Legal: Preparing Your In-House Team for Tomorrow
2/14/2019 ·       Relativity

·       QDiscovery

EDRM: The e-Discovery Energy Wheel House
2/14/2019 ·       Morrison & Foerster

·       Epiq

eDiscovery Managed Services Series: Reporting
2/15/2019 ·       eDisclosure Information Project Interview: Andrew Peck of DLA Piper on cross-border discovery and technology-assisted review
2/18/2019 ·       Exterro 5 Steps You Can Take to Earn an E-Discovery Sanction
2/19/2019 ·       Relativity Out of Fashion e-Discovery Practices
2/19/2019 ·       EY Law EY Law Rolls Out Legal AI Doc Review Capability Globally
2/19/2019 ·       Axiom Axiom to Go Public, Applying for IPO and Spinning Off Two Businesses
2/19/2019 ·       ILTA Breaking: ILTA Names Joy Heath Rush as CEO

 

ACEDS Community Newsletter for the Week of February 15

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February 15, 2019 | VOL. 8 | NO. 7

Gregory Bufithis, The Project Counsel Media Group – LegalTech 2019
Mash-Up Video: The Future of E-Discovery
Read more

Chris Dale, eDisclosure Information Project: Data Exchange Protocol
from the UK ILTA Litigation Support Special Interest Group
Read more

Mike Quartararo, eDPM Advisory Services: EDRM at Duke Law School
Releases TAR Guidelines for Legal Industry
Read more

George Socha, BDO: EDRM Publishes TAR Guidelines
Read more

LLM Law Review & ACEDS Co-Host Tokyo Summit – Sponsorship
Opportunities Available
Learn more and register here

Sharing the Valentine’s Day Love with Special Pricing on ACEDS Custom
Team Training – Reach out to sales@aceds.org for more information.
View Training Products Here

Microsoft’s Dennis Garcia on the Privacy Law Salon Roundtable
Read more

4th Circuit Appellate Case-No Intent Proven, No Spoliation Sanctions
Read more

George Socha, BDO: Weekly Trends Report – 2/13/2019 Insights
Read more

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ACEDS Affiliate News

ACEDS Announces LDM Global as Newest Silver Level Affiliate Partner
Read more

Hanzo: Ricky Brooman, CEDS Interview
Read more

Helen Geib, QDiscovery: Keeping Personal Data Private in Mobile
Device Discovery
Read more

Eleanor Brock, Logikcull: Did eDiscovery Undermine the Mueller
Investigation?
Read more

David Horrigan, Relativity: Are the ‘Legal Elite’ in an Echo Chamber?
Read more

OpenText Acquires Catalyst Repository Systems, Inc.
Read more

LDM Global: Legal Process Outsourcing 101
Read more

TRU Staffing Partners Manager of Recruitment to Speak at Women in
eDiscovery’s San Diego Chapter Mentorship Roundtable
Read more

Johannes Scholtes, ZyLAB: Valentine’s Day: Where is the Love in
eDiscovery?
Read more

ACEDS Rockstar Month - January 2019

ACEDS Chapter News and Events

We are excited to announce new ACEDS Chapters are being formed in Gulf Coast
(LA, MS, AL), Charleston, South Africa, Toronto, Tokyo, Ireland, Kansas City, Seattle,
Dallas, Ohio, Atlanta, Sydney and Melbourne Australia. Please reach out to
chapters@aceds.org if you are interested in being part of the formation, steering
committee, or a member.

February 28 – Twin Cities – Legal Week Panel Discussion “What Was
Hot in LegalTech and Education”
Learn more and register here

February 28 – Dallas – Save the Date
Learn more and register here

March 7 – New England – Save the Date
Learn more and register here

March 19 – Jacksonville – eDiscovery Lunch and Learn on “Meet and Confers
and Negotiating ESI Protocols”
Learn more and register here

 

 

 

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EDRM Publishes TAR Guidelines

On February 7, EDRM released its Technology Assisted Review (TAR) Guidelines. The Guidelines are the first major work product from EDRM, begun not long after Tom Gelbmann and I handed the reins over to John Rabiej and his colleagues at the Bolch Judicial Institute of Duke Law School.

The goal for the Guidelines was simple: Provide a wide audience with an authoritative and clear understanding of the reasons to use technology-assisted review, known as TAR, in litigation, and the processes by which TAR works.

Getting there was a major undertaking. More than 50 volunteer judges, practitioners, and e-discovery experts worked for over two years to prepare the Guidelines. To make the project more manageable, EDRM set up three drafting teams. Leading the teams were Matt Poplawski of Winston & Strawn; Mike Quartararo of eDPM Advisory Services; and Adam Strayer of Paul, Weiss, Rifkind, Wharton & Garrison. Tim Opsitnick of TCDI and U.S. Magistrate Judge James Francis IV (Southern District of New York, Ret.) took on the challenge of editing the Guidelines as well as incorporating public comments. I assisted John Rabiej, deputy director of the Bolch Judicial Institute, and Jim Waldron, director of EDRM, as they directed the overall process.

Any document prepared by this many people – bringing as they do a wide range of experience, perspectives, and opinions – will be a compromise document. The Guidelines are no exception. We had some drama along the way; I doubt we could have avoided that entirely. In the end, however, the team assembled a set of guidelines that should have something for everyone – something to learn, something to like, and, of course, something to take issue with.

It is important to keep in mind that these Guidelines are just that, guidelines. They are not meant to set a floor. They do not represent a threshold anyone attempting to use TAR should be able to cross. At the same time they are not a ceiling either. I encourage everyone deploying TAR capabilities to push themselves farther than the uses discussed in the Guidelines. Go past the workflows discussed in Chapter Two. Push beyond the alternative tasks described in Chapter Three. These are starting points. They are not end points.

The Guidelines are 50 pages long. Don’t be put off by the length. The bulk of the contents is organized into four chapters:

  1. Defining Technology Assisted Review
  2. TAR Workflow
  3. Alternative Tasks for Applying TAR
  4. Factors to Consider When Deciding Whether to Use TAR

You can jump directly to a specific chapter if you like; each stands on its own. I suggest you instead take the time to start at the beginning and work through the document systematically. That, I think, will help you get the greatest value from the Guidelines.

Please send questions and comments to John Rabiej, Jim Waldron and me at edrm@law.duke.edu.

Here is the detailed structure of the Guidelines:

Page Section
i Foreword
ii Acknowledgements
iv Preface
1 Chapter One: Defining Technology Assisted Review
A. Introduction
2 B. The TAR Process
1. Assembling the TAR Team
2 2. Collection and Analysis
3. “Training” the Computer Using Software to Predict Relevancy
4. Quality Control and Testing
5. Training Completion and Validation
7 Chapter Two: TAR Workflow
8 A. Introduction
9 B. Foundational Concepts & Understandings
1. Key TAR Terms
2. TAR Software: Algorithms
a) Feature Extraction Algorithms
10 b) Supervised Machine Learning Algorithms (Supervised Learning Methods)
c) Varying Industry Terminology Related to Various Supervised Machine Learning Methods
11 C. The TAR Workflow
1. Identify the Team to Engage in the TAR Workflow
12 2. Select the Service Provider and Software
13 3. Identify, Analyze, and Prepare the TAR Set
14 a) Timing and the TAR Workflow
15 4. The Human Reviewer Prepares for Engaging in TAR
16 5. Human Reviewer Trains the Computer to Detect Relevancy, and the Computer Classifies the TAR Set Documents
19 6. Implement Review Quality Control Measures During Training
a) Decision Log
20 b) Sampling
c) Reports
7. Determine When Computer Training Is Complete and Validate
21 a) Training Completion
(i) Tracking of Sample-Based Effectiveness Estimates
(ii) Observing Sparseness of Relevant Documents Returned by the Computer During Active Learning
22 (iii) Comparison of Predictive Model Behaviors
(iv) Comparing Typical TAR 1.0 and TAR 2.0 Training Completion Processes
24 b) Validation
26 8. Final Identification, Review, and Production of the Predicted Relevant Set
27 9. Workflow Issue Spotting
a) Extremely Low or High Richness of the TAR Set
28 b) Supplemental Collections
c) Changing Scope of Relevancy
29 d) Unreasonable Training Results
30 Chapter Three: Alternative Tasks for Applying TAR
A. Introduction
B. Early Case Assessment/Investigation
31 C. Prioritization for Review
D. Categorization (By Issues, for Confidentiality or Privacy)
32 E. Privilege Review
33 F. Quality Control and Quality Assurance
G. Review of Incoming Productions
34 H. Deposition/Trial Preparation
35 I. Information Governance and Data Disposition
36 1. Records Management Baseline
2. Assessing Legacy Data – Data Disposition Reviews
3. Isolating Sensitive Content – PII/PHI/Medical/Privacy/Confidential/Privileged/Proprietary Data
37 Chapter Four: Factors to Consider When Deciding Whether to Use TAR
A. Introduction
B. Should the Legal Team Use TAR?
1. Are the Documents Appropriate for TAR?
38 2. Are the Costs and Use Reasonable?
39 3. Is the Timing of the Task/Matter Schedule Feasible?
4. Is the Opposing Party Reasonable and Cooperative?
5. Are There Jurisdictional Considerations That Influence the Decision?
40 C. The Cost of TAR vs. Traditional Linear Review
D. The Cost of TAR and Proportionality
41 Appendix: Key Terms
44 Thank You to Our Sponsors!

 

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Weekly Trends Report – 2/13/2019 Insights

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

EDRM releases TAR guidelines – EDRM announced it has released a comprehensive set of guidelines that aim to objectively define and explain technology-assisted review for members of the judiciary and the legal profession.

EDRM and Exterro release Federal judge survey results – EDRM and Exterro have published results of their survey of more than 260 Federal judges, reports Legaltech News. The key takeaways: (1) Be proactive; (2) understand your client’s IT infrastructure and cooperate with opposing counsel; (3) act in good faith and communicate effectively to avoid sanctions; and (4) keep getting more e-discovery competent.

The Sedona Conference extends comment period – The Sedona Conference extended until 2/15 the deadline to submit comments on its Commentary on Legal Holds, Second Edition: The Trigger & The Process. Send comments to comments@sedonaconference.org.

The onslaught of the emojis – Santa Clara University law professor Eric Goldman warns again that lawyers and judges alike need to prepare for “the coming emoji onslaught.”

Electronic Discovery Bulletin January 2019 – Each month the National Association of Attorneys General publishes a compendium of articles and case law that may be of interest to the AG offices – and to the rest of us. Here is the January 2019 bulletin.

More reactions to Legaltech:

  • Are the ‘Legal Elite’ in an Echo Chamber?, from David Horrigan (Relativity) – responding to Bob Ambrogi’s earlier post with the rebuttal that “sometimes Big Law does big things.”
  • Takeaways from Legalweek 2019, from the attorneyatwork editors – a compilation of reactions ranging from “e-discovery still dominates” to “waste.”
  • Legal Tech Disruption And Stagnancy At Legalweek 2019, from Nicole Black (MyCase) – who remarks on a smaller conference whose exhibitors and attendees nonetheless show that tech adoption in e-discovery and elsewhere in the legal field is thriving.
  • What I Learned from the State of the Industry at Legaltech 2019, from Cliff Dutton (Epiq) – discussing what he learned in his prep sessions with the Legaltech State of the Industry speakers Attorney General Gonzales and Attorney General Lynch.
  • Four Top Trends Warmed Up This Year’s Legaltech 2019, from Sarah Ledgerwood (Lighthouse) – discussing her top four observations: the LegalTech community wants change; we’re definitely moving to the cloud; cybersecurity is a top concern; and, finally, “Legal teams still lack tech competence; email remains king even with new data sources; emerging tech i.e blockchain not ready for regulation; data privacy/protection too weak in US; ediscovery industry and jobs rapidly expanding despite consolidation.”

CYBERSECURITY & DATA PRIVACY

Google-Style GDPR Fines for Everyone? – Alston & Bird attorney Daniel Felz warns that companies of all types and sizes need to be concerned about GDPR files.  To this end, he points to the recent announcement from the Bavarian Data Protection Authority that it was considering GPDR files for 40 companies whose cookie/tracking practices it had audited and found wanting.

Or maybe not so much? – DLA Piper reports that in the eight months since the GDPR came into force, there have been more than 59,000 personal data breaches notified to regulators and yet only 91 reported fines.

GDPR upsides: shorter sales delays and fewer breaches – According to a recent Cisco Data Privacy Benchmark Study report and infographic, GDPR-ready companies have shorter sales delays due to customer privacy concerns; fewer and less costly breaches; and additional benefits including agility and innovation, competitive advantage, operational efficiency, and investor appeal.

Ohio’s Data Protection Act offers data breach safe harbor – Blank Rome attorney David Oberly writes that Ohio’s DPA, enacted last November, provides Ohio businesses that have put in place reasonable security measures with an affirmative defense to some forms of data breach claims.

Changes to California Consumer Privacy Act sought – Legaltech News reported that at a recent public forum business representatives told California regulators they want the CCPA to have more specific definitions and more flexibility in compliance.

LEGAL TECHNOLOGY & DIGITAL TRANSFORMATION

The law firm chief innovation officer: goals, roles, and holes – In a 44-page research paper, University of Miami law professor Michele Beardslee DeStefano sets forth a case for law firms installing – and then following the lead of – chief innovation officers.

And the winners are… – At Legalweek, ALM launched its Production Innovation Competition. Silvia Hodges Silverstein discusses the process and the results. Spoiler alert: Fastcase Analytics Workbench won the Judges Award and LexisNexis Context the popular vote.

Evaluating AI abstraction tools – QuisLex published the results of a case study that looked at 10 artificial intelligence tools built to abstract text from contracts.

E-DISCOVERY CASE LAW

Recent e-discovery decisions

12/6/2018 – New York trial court judge denied defendant’s motion for a protective order and granted plaintiff’s cross motion for an order compelling production of, among other things, the audit trail and metadata for plaintiff’s patient care records. The Court was not persuaded by defendant’s assertion that producing the metadata would cost approximately $250,000. Instead, the Court agreed with plaintiff that (a) she was entitled to at least some of the metadata and (b) that metadata likely could be produced at a lower cost than defendant estimated.  Miller v. Sauberman, 2018 WL 6413541 (N.Y. 2018).

12/28/2018 – FRCP 26(b) proportionality – U.S. District Judge granted plaintiff’s motion to compel restoration and production of e-mail attachments, with the cost of restoration to be split by the parties. During discovery, plaintiff realized that defendant had produced email messages without their attendant attachments; more than 750 attachments appeared not to have been produced. This had happened because when defendant earlier had moved from one email system to another, those attachments had not been moved to the new system. An ESI Order was in place in the matter, which required a requesting party to show good cause before the responding party had to restore data and in those circumstances allowed for cost shifting. The Court found that some of the sought-after attachments appeared likely to be relevant; that the “relatively minimal cost of restoring” the system ($13,500) was proportional; and that the discovery sought is not “unreasonably cumulative” (emphasis in original). OptoLum, Inc. v. Cree, Inc., 1:17CV687 (M.D. N.C., Dec. 28, 2018).

1/3/2019 – Stored Communications Act – A panel of District of Columbia Court of Appeals judges reversed a lower court order holding appellant Facebook in civil contempt for refusing to comply with a subpoena duces tecum seeking communications related to certain accounts. According to the Court, on its face the Stored Communications Act prohibits Facebook from complying with the subpoenas. There are nine enumerated exceptions to the Act’s prohibition, but the Court found that none of them applied in this case. Facebook, Inc. v. Wint, No. 18-CO-958 (D.C. App. Jan. 3, 2019).

1/8/2019 – FRCP 26(b) proportionality – U.S. Magistrate Judge denied defendant’s motion to compel production of all cell phones used by plaintiff during and after his employment with defendant. Instead, the Court ordered plaintiff to produce complete copies of all responsive text messages. The Court found the request for all cell phones to be unduly burdensome and invasive and not proportional to the needs of the case. That contrasted with defendant’s much narrower demand for test messages, which the Court found to be sufficiently narrow and targeted. Santana v. MKA2 Enterprises, Inc., 2019 WL 130286 (D. Kan. 2019).

1/16/2019 – FRCP 26(b) proportionality and 45(a) subpoenas – U.S. District Judge denied motion to quash plaintiff’s subpoena seeking information, including application data and email metadata, from a non-party. The Court found that plaintiff had made reasonable efforts to obtain the information from the defendants; was seeking information relevant to liability and damages issues; and could, working with the others involved, adequately address issues relating to personally identifiable, sensitive, or confidential commercial information. Fair v. Commc’ns Unlimited Inc., No. 4:17 CV 2391 RWS (E.D. Mo. Jan. 16, 2019).

UPCOMING EVENTS

Conferences, webinars, and the like can provide insight into where e-discovery, information governance cybersecurity, and digital transformation are heading

2/13/2018-3/8/2019 EVENTS

Start End TZ Type Location Host Title
2/14/19 2/16/19 CT Conference San Antonio, TX ABA 2019 Corporate Counsel CLE Seminar
2/14/19 1:00 PM 2/14/19 2:00 PM ET Webinar EDRM 2019 Federal Judges Survey: Key Takeaways and Trends
2/19/19 1:00 PM 2/19/19 2:00 PM ET Webinar MER The 5 Keys to Successful IG Programs
2/19/19 2:00 PM 2/19/19 4:30 PM CT Conference St. Paul, MN IAPP 2019: Developments in EU, US and Global Privacy
2/19/19 5:00 PM CT Conference St. Paul, MN IAPP Minneapolis/St. Paul KnowledgeNet Happy Hour: February 19, 2019
2/25/19 7:30 AM 2/25/19 5:00 PM PT Conference Fremont, CA IAPP CCPA Comprehensive 2019
2/26/19 12:00 PM 2/26/19 1:00 PM ET Meeting Burlington, VT ILTA Ask the Expert – Infrastructure and Security with the CEO of Conversant Group
4/25/19 1:00 PM 4/25/19 2:00 PM ET Webinar ACEDS Optimize Your eDiscovery Spend with Business Intelligence
2/26/19 6:30 PM 2/26/19 10:00 PM BST Meeting London, UK Women in eDiscovery London Chapter Event – Communication, Peaks and Pitfalls
2/27/19 12:00 PM 2/27/19 1:00 PM ET Webinar HaystackID Active Learning in eDiscovery: From Analytics to Outcomes
2/27/19 1:00 PM 2/27/19 1:30 PM ET Webinar ACEDS Exterro Smart ECA: AI-Drive Early Case Assessment
2/27/19 1:00 PM 2/27/19 2:00 PM ET Webinar XDD An Ounce of Prevention: eDiscovery Project Planning
2/27/19 6:00 PM 3/2/19 3:00 PM CT Conference Chicago, IL ABA ABA TECHSHOW 2019
2/28/19 8:30 AM 2/28/19 5:00 PM ET Conference Toronto, Canada Canadian Legal Innovation Forum
2/28/19 8:00 AM 2/28/19 5:30 PM CT Conference Dallas, TX The Masters Conference Dallas Masters Conference
2/28/19 1:00 PM 2/28/19 2:00 PM ET Webinar Epiq The Growing Use of Audio Preservation and Collection
2/28/19 3:00 PM 2/28/19 5:30 PM CT Meeting Minneapolis, MN ACEDS ACEDS Twin Cities Chapter: A Legalweek Retrospective Discussion and Cocktail Reception: Learning at Legaltech: What Was Hot at the Conference
2/28/19 3/1/19 CT Conference Houston, TX The Sedona Conference The Sedona Conference Working Group 11 Annual Meeting 2019
3/5/19 8:00 AM 3/5/19 5:00 PM ET Conference New York, NY ARMA ARMA Metro NYC Spring Conference 2019
3/5/19 1:00 PM 3/5/19 2:00 PM ET Webinar ABA Best of ABA TECHSHOW: AI in Practice – The Robots Are Not Your Enemy
3/6/19 11:30 AM 3/8/19 12:40 PM MT Conference Phoenix, AZ ASU ASU-Arkfeld 8th Annual eDiscovery Conference
3/6/19 1:00 PM 3/6/19 2:00 PM ET Webinar ACEDS Size Doesn’t Matter: How Top Boutique Firms Are Winning Big Clients From Big Law
2/28/19 2/28/19 PT Conference San Francisco, CA The Cowen Group SOLID West
3/7/19 8:30 AM 3/8/19 1:00 PM ET Conference Charlotte, NC The Sedona Conference The 13th Annual Sedona Conference Institute Program on eDiscovery: Protecting Privacy, Confidentiality, and Privilege in Civil Litigation
3/7/19 12:00 PM 3/7/19 1:30 PM ET Meeting New York, NY Women in eDiscovery New York City – Save the date
3/7/19 2:00 PM ET Webinar FoundationLab Doing more with less: Transforming legal services delivery through productization


ANNOUNCEMENTS

Date Organization Title
1/25/2019 Alston & Bird Alston & Bird Teams Up with Georgia State University on Data Analytics

“Alston & Bird and Georgia State University have announced a joint effort to develop broad-based competency among the firm’s attorneys in leveraging data science and analytics to help drive new levels of client service and satisfaction….”

1/29/2019 SALI Alliance SALI Announces Version 1 of Matter Standard

“The Standards Advancement for the Legal Industry (SALI) Alliance announced … the release of the SALI Version 1 matter category standard, which includes the publication of area of law and process codes….”

2/7/2019 Luminance Luminance completes funding round at $100m valuation

“Luminance, the leading artificial intelligence platform for the legal profession, has raised $10m from existing investors….”

2/11/2019 Verbit Verbit Raises $23 Million in Series A Funding Round

“Verbit, the leading transcription and captioning solution, announced today the close of a $23 million Series A round led by Viola Venture….”

2/11/2019 Infinnium Startup Company Infinnium Is Redefining How Organizations Use Data to Gain Intelligence for Improved Decision-Making

“Infinnium LLC, a software company that develops solutions to improve information management and business decision-making through effective use of the latest artificial intelligence technology, announces its official launch today….”

2/12/2019 Evisort Evisort Announces $4.5 Million in Seed Funding Led by Village Global and Amity Ventures

“Evisort, an artificial intelligence (AI) contract management company servicing customers like Stack Overflow and Travelzoo, announced today that it raised $4.5 million in seed funding….”

ADDITIONAL ARTICLES

Date Org By/About Title
2/7/2019 Relativity Finding Value in e-Discovery: Insights from a Corporate Lawyer
2/7/2019 Mitratech Why NDA Automation is a 2019 Imperative for Law Firms
2/8/2019 Elevate Behind Elevate’s Buying Binge: Liam Brown on the Company’s M&A Strategy
2/11/2019 Redgrave Adapting to Emerging Tech in E-Discovery: A Talk with New Redgrave Partner Karin Jenson
2/11/2019 Legaltech News 4 Risks for Implementing the New Age of Legal Technologies
2/12/2019 Relativity Not Using Active Learning? You’re Falling Behind
Zapproved Legal Holds: A How-To Guide to Preserving Data for Litigation
Logikcull The Lawyer’s Guide to Discovery and Investigations in Slack
2/13/2019 Relativity What One Trip to Six Flags Means for Facebook, Data Privacy, and You

Mobile Data

Keeping Personal Data Private in Mobile Device Discovery

“What can you do to protect personal information when you collect data from a phone?” This is one of the most frequently asked questions of our forensics practice group.

One reason we hear this question so often is we’re seeing a lot more mobile devices. In particular, the explosive growth of mobile messaging is driving a rapid increase in mobile device discovery.

Of course, the main reason we get asked this question is there’s a tremendous amount of personal data on mobile devices. People may have their entire lives on their smartphones.

This is a serious issue for our corporate clients as well as for our individual clients. A separate device used solely for work is the rare exception. Intermingling of business and personal data on one device is the norm. This is true whether the device is employer-owned or BYOD.

Companies involved in litigation have a legal duty to obtain relevant business data from employees’ mobile devices. At the same time, they want to respect their employees’ privacy. They also don’t want to waste time and money having outside counsel review irrelevant material.

In some instances, respecting privacy can be more than a good thing – it can be an essential requirement to access the device. An example is friendly third parties who agree to turn over their phones for discovery but only on the condition that appropriate privacy safeguards are put in place.

Targeted collection of mobile data is infeasible and inadvisable

It isn’t feasible or advisable to try to exclude personal data during the collection process itself. This is primarily for technical reasons. Mobile device forensic software isn’t designed to identify and exclude information based on content as part of device acquisition.

Additionally, phones and other mobile devices generally don’t support targeted collections. From an eDiscovery perspective, this is one of the most significant differences between mobile device collection and more familiar sources like e-docs on a PC.

Technical obstacles aside, targeted mobile collections are inadvisable for legal and strategic reasons. Our clients seldom have a complete picture of what data is relevant or where it resides on the device prior to collection. This is often because even the device user doesn’t know the answers to those questions.

Messaging data is a prime example. “Text messages” is a typical response to a custodian questionnaire asking about sources of relevant data. On its face this identifies SMS/MMS (plus contacts for context) as collection targets.

However, it’s highly likely that the custodian actually uses WhatsApp, Facebook Messenger and iMessage in addition to SMS/MMS. He just doesn’t realize there’s a difference between social media messaging applications and text messages. Maybe he also forgot about saving attachments from relevant messages.

In short, a targeted mobile collection has a high risk of being incomplete. The best case scenario is a supplemental collection will be required, with the attendant cost and inconvenience. The worst case scenario is spoliation because data has been overwritten by the device operating system, deleted by the user or lost due to an auto-delete function.

Personal data can be filtered prior to review

The good news is it’s possible to identify and filter a great deal of personal data between collection and review.

All of the collected data is stored until the matter is closed and we are directed to destroy the data or transfer it to the client. However, only potentially relevant data is exported from the preservation copy for review.

We use the mobile forensic software Cellebrite for acquisition and analysis of mobile data. Cellebrite and other industry-recognized mobile forensic software have robust search and filter capabilities.

For example, if the only relevant data is messaging and contacts, then other, non-relevant categories can be withheld from export. This would include GPS location data, email, internet history, calendar, notes and more. All likely sources of personal information.

More granular filtering is also possible. We use a combination of inclusionary and exclusionary filters. We work with the client to develop a customized filtering strategy for the matter.

Inclusionary filters are designed to identify relevant data for export, which is then transferred to the case team for review. Typical examples of inclusionary filters are date ranges, search terms and contact information (e.g., name, handle, phone number).

Exclusionary filters are used to identify non-relevant data such as personal information, systems data and spam. This data is excluded from the export. A common exclusionary filter for personal data is contact information for the device user’s family members and friends.

People have a legitimate privacy interest in the non-relevant personal data on their mobile devices. By working together to implement reasonable safeguards, litigators and eDiscovery professionals can respect privacy during discovery. Cutting costs from review of non-relevant data is an added bonus.

Zero to Sixty in E-Discovery: The Value of On – and Off – the – Job Training

This article was originally posted on Hanzo.co

Ricky Brooman, CEDS, Litigation Support Project Manager at Saul Ewing Arnstein & Lehr LLP, discusses specialized ediscovery training, low-tech workflow hacks, building an ediscovery A-team, and embracing creativity and soft skills in education.

If you’ve ever wondered how to jump-start a career in ediscovery—or what you can gain by getting into your technology and getting your hands dirty—our profile subject this month has been there and done that. We recently sat down with Ricky Brooman, CEDS, who’s a Litigation Support Project Manager at the law firm of Saul Ewing Arnstein & Lehr LLP. Ricky has shot up the ranks from his start as a litigation paralegal to become a technologically proficient Certified Ediscovery Specialist. Here’s his story and his advice for anyone interested in learning more about ediscovery and legal technology.

HOW DID YOU GET STARTED IN EDISCOVERY AND, ONCE YOU WERE THERE, WHAT MOTIVATED YOU TO EARN YOUR CERTIFIED EDISCOVERY SPECIALIST (CEDS) CERTIFICATION?

Well, I started out as a litigation paralegal—my plan was actually to go to law school, so I was looking for a job where I could get an inside look at a law firm while I made some money! I was studying for the LSAT when I started attracting some attention at work, almost by accident. The firm had all this technology, but most people weren’t leveraging it to the full potential. I was curious about how it all worked, and I wasn’t afraid to get in there and mess around with different tools. Pretty quickly, I realized—and so did my bosses—that I could leverage our existing technology to get some great results.

The first major project I did—and what really put me on the radar of the litigation support team—involved using CaseMap to build a detailed timeline of events in a massive 9/11 litigation. I was able not only to create this visual timeline, which was really gripping on its own, but also to incorporate key documents in support of each element. From there, in a separate litigation, someone asked me whether I knew how to use Relativity. I didn’t, but I didn’t let that stop me! I just jumped in and learned by doing. That willingness to get in there and figure out how these tools worked and what they could do, is what catapulted me into the litigation support department. I think litigation support represents a rare convergence between people, processes, and technology, so I’m beyond excited to be in my current role where I get to satisfy my curious nature and continually learn with a fantastic group of colleagues and peers.

After that early success, I was encouraged by the firm, especially my director, David Leone, to continue my formal education. I was already certified for CaseMap, so studying and testing for the Certified Ediscovery Specialist (CEDS) seemed like a natural next step in my career evolution. At that point, I’d only been in litigation support for a couple of years, and I had a lot to learn about ediscovery. It was a great approach, though: I learned a tremendous amount, it’s been good for the firm to have staff with the CEDS certification, and it’s a useful way to gain respect and recognition for your knowledge in the field. I’d definitely recommend it to anyone who’s starting out in ediscovery or who’s looking for a way to establish their place in the industry.

SO USING THE EDUCATION YOU GAINED BOTH IN THE FIRM AND IN TRAINING, WHAT SYSTEMS OR PROCESSES HAVE YOU PUT IN PLACE AT SAUL TO IMPROVE YOUR EDISCOVERY PRACTICE?

One of the most helpful improvements we’ve made is something I heard about at ILTACON. Every year, there are numerous ILTA egroup posts and discussion in ILTACON sessions surrounding project management in litigation support. At ILTACON 2017, there was a fantastic session with Michael Quartararo, Daryl Shetterly, and Dera Nevin, and they discussed at length the idea of a case spreadsheet. The particular one I am referencing was pioneered by Daryl Shetterly at Orrick. It’s simple but effective: you build an Excel spreadsheet, or PM spreadsheet in other similar technology, for every case with tabs for each stage of the EDRM, the Electronic Discovery Reference Model, as well as tabs for budgeting, case closure, and any other key area for your litigation matters. It ensures that you hit every necessary step at each stage of the process.

Sounds too easy to make a big difference, right? You’d be amazed! We put everything in that one location for each matter, so we have a place to keep track of matter initiation, outside counsel and billing guidelines, every point of contact on the case, preservation and collection notes, processing and production specifications, trial support and case outcome, etc.—it’s essentially everything that’s happened and that needs to happen along the lifecycle of the matter for a successful resolution. It is extremely detailed. The spreadsheet has been instrumental in helping us monitor the status of our cases, especially as more people are becoming involved in each matter. It also keeps us honest, enabling us to verify that we’re creating a defensible, repeatable workflow in each and every case without missing or skipping steps.

I’M SURPRISED TO HEAR THAT SOMEONE WHO OBVIOUSLY ENJOYS WORKING WITH TECHNOLOGY IS USING SUCH A LOW-TECH SOLUTION AS A CASE-MANAGEMENT SPREADSHEET! WHAT OTHER TECHNOLOGY DO YOU RELY ON?

Oh, there’s plenty! I just encourage people not to overlook the simple strategies or the basic tools when putting together their core technological toolbox. We’re always adding to and subtracting from our own toolbox as new technologies come to the forefront that make certain aspects of work more effective and efficient, while other tools might fall to the wayside or be replaced. We certainly rely on Relativity for a lot of our work and, in the past year, have incorporated other predictive coding technologies into our stack. The days when matters only had 10,000 documents are long gone; without these sophisticated technologies, we’d be wasting a ton of time on low-relevance documents in an inefficient linear review. Thankfully, we don’t have to do that, through the power of advanced analytics, machine learning, and predictive coding.

And, I mean, I’m talking to Hanzo, so I can’t pass up the opportunity to sing the praises of your web-archiving technology. We were an early adopter; we’ve been using Hanzo to capture websites, especially social media sites, for years. There are other tools out there for static captures, but for dynamic evidence or multimedia sites, Hanzo does it best. I love how easy it is to authenticate evidence when you have an active page with functional links and fully preserved dynamic evidence, backed by complete metadata.It makes my job easier when I can come to the table with the right tools and the best evidence possible.

SINCE YOU’VE HAD SUCH SUCCESS WORKING WITH TECHNOLOGY, WHAT DO YOU WISH THAT LAWYERS WOULD DO TO BETTER EMBRACE AND TAKE ADVANTAGE OF TECHNOLOGY?

The legal profession needs to embrace technology. You only have to look to the recent changes in state bar rules to see where this trend is going. For example, an attorney might need to know what location data is stored on a cell phone to win a case, or have someone on their team that has this level of technical competence. The key is to achieve technology proficiency or leverage the talent in your organization to meet your technology needs.

A big part of running a successful litigation matter is building a team of subject matter experts that supports the attorneys so the lawyers can focus on practicing law. Lawyers do need to know the right questions to ask and how to incorporate technology in their practice to meet their client needs, and this is where the support staff really shines. Attorneys that leverage their support staff to collaborate with clients and understand the intricacies of a matter will experience the most success. To that end, the more that firms embrace technology in the practice of law and those that drive technology adoption, the greater their competitive edge will be.

Here’s a simple example of that: in litigation support, we see a huge difference in outcomes based on when lawyers loop us in on their cases. If they wait until something’s gone sideways, or when they need a piece of evidence and realize they can’t authenticate it, that’s often too late to achieve an optimal result. We either have to go back and start over, or we have to rig up some creative solution to work around a problem that could have been avoided. If, instead, we’re brought in at the outset, we can deploy the right technology and workflows from the start, and put our firm and client in a better position throughout the lifecycle of that litigation. We can provide better service to our clients when we assemble that cross-disciplinary ediscovery A-team, where we have litigation support staff, forensic experts, lawyers, paralegals, and IT staff all working together with the client’s in-house team to meet their needs.

BEFORE WE WRAP UP, WHAT BIG DEVELOPMENTS DO YOU THINK ARE ON THE HORIZON FOR EDISCOVERY?

I’m excited to see that law firms are finally starting to embrace the move to the cloud. It offers the best in scalability, flexibility, and security, supported by a team of experts who are dedicated to data availability and protection. The cloud is here to stay, so it’s good to see firms getting on board and realizing the advantages of cloud computing. With the importance of security and privacy, cloud computing has a lot to offer in preservation, collection, processing, review, and production without duplicating or moving data to great lengths.

I also think voice assistants are going to be big in the legal field, as natural language processing keeps improving. I expect we’re going to see attorneys and support staff using voice assistants more and more, and I think it’ll change the legal industry as we teach machines to listen to what we want and deliver fast results in review platforms, document management systems, etc. Voice assistants are efficient, effective, and repeatable. I love when I can just say what I want and it gets taken care of! That’s a technology that busy lawyers can really get behind, and it’s not hard or intimidating to use.

On the topic of machines, I think there is opportunity for artificial intelligence to really take off in legal in the medium-term (3-5 years). We are at the advent of big data – the increasing volumes used to train and hone the AI algorithms, the better they will perform. Hopefully we will see a collective intelligence approach whereby firms and corporations are willing to share legal data that are otherwise private and confidential to improve artificial intelligence systems to improve the legal process and outcomes.

Finally, from an education perspective, I think we are on the verge of a paradigm shift. I subscribe to the worldview I am reminded of by Jack Ma, co-founder of Alibaba, who commented at the 2018 World Economic Forum that we need to change our education focus. Rather than teaching knowledge-based skills that will be automated, we need to teach soft skills and embrace creative, diverse schools of thought. That’s what I’m striving to build for myself, and I think it’s what we’ll need from people in ediscovery too. Humans have the ability to empathize with clients fears and work with human emotion; we can build a deep understanding of a client’s needs and objectives. The people who will be influential in the future of electronic discovery are those who understand technology and embrace creative thinking, practice mindful communication, develop high-level strategy, and bring soft skills to the forefront in the legal profession.

Feeling inspired and ready to learn some new technology and build soft skills? We are!

 

The views and opinions expressed in this article are those of the individuals involved and do not necessarily reflect the official policy or position of Saul Ewing Arnstein & Lehr.