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

Click on the links for more detail

6/26/2019: Tasklist
Entering the command, tasklist in Windows command prompt will generate a list of all programs which are currently running in Windows

6/27/2019: Printing problems with VMWare
VM Ware will continue to assign a printer to the USB port used first.

6/28/2019: C.D. Cal.: Data Protection Measures Fail to Meet Minimum for Diversity Jurisdiction
Declaration tor cost of data collection and protection measures was ruled deficient because the estimates were based on security standards for banks, not a tech company like the defendant.

6/29/2019: Command to get list of errors logged by Windows
Get-EventLog -LogName System -EntryType Error

6/30/2019: Powershell Command to get list of Outlook folders

7/1/2019: Powershell command to get hash values
You can use the Get-FileHash command in PowerShell to generate hash values of an electronic file.  PowerShell supports the MD5; SHA1; SHA256; SHA384; and SHA512 algorithms.

7/2/2019: Powershell script to get hash value of a directory
A single SHA1 hash value will be generated for an entire folder.

7/3/2019: CBS log file taking up space on the C drive
In Windows, the System File Check utility may generate multiple log files of 1 GB or more that can run down the free space on your hard drive.

7/4/2019: Bankr. D. Minn. Sanctions BMO Harris for ‘Deceit and Obfuscation’ in Loss of Email Backup Tapes
“And while there is no concrete indication that the backup tapes contained evidence that could be considered a ‘smoking-gun,’ that is not the standard. The fact that the tapes were the primary, if not only, source of Defendant’s pre-March 2005 emails renders its loss prejudicial.”

7/5/2019: DisCountersView
Find how often each drive on your system has been read from or written to.

7/6/2019: Automatic lists in Excel
File . . . Options . . Advanced, scroll down, see the option to ‘Edit Custom Lists’ in the general section.

7/7/2019: Powershell Script to generate hash values of multiple files
dir c:\foofolder\baseball -Recurse | Get-FileHash

7/8/2019: Slide Aspect Ratios: – 4:3 to 16:9
The 16:9 aspect ratio common to HDTV monitors is twice as wide and 1.5 times the height of the standard 4:3 video graphics array (VGA) display.  You can switch between the two in PowerPoint by going to Design . . . Slide Size

7/9/2019: Comparing Montiors
Cathode Ray Tube monitors can only go up to 43 inches, but LCD can be up to 108” and a Plasma screen can be as long as 150 inches.

7/10/2019: Auslogics Duplicate File Finder
This tool can help you find duplicate files with different file names.

7/11/2019: Recording Phone Calls on an iPhone
The Rev voice recorder app for iPhones, provides a free and easy to way to record your phone calls, that also helps to edit and export the resulting audio files.

7/12/2019: Where can you record a conversation without the other party’s consent?
While in a great plurality of states you can record a phone call without the other person’s consent, in four of the six biggest states (California, Florida, Illinois and Pennsylvania) the second party’s consent is required.

7/13/2019: command history
We can press the down arrow to go through the commands in chronological order.

7/14/2019: Rules of the Redaction of Trial Transcripts
A motion must be filed to redact information from a trial transcript other than SSNs; birth dates; children names; and account numbers.

7/15/2019: Searching for Highlighting Regex Strings
You can run regular expression searches in Word, and then highlight the results.   In Find and Replace, check off the ‘Use wildcards’ box and enter the searched for term in parentheses.

7/16/2019: Formatting Tips for TOAs and TOCs
To set hanging indentations, go to the Paragraph settings and select ‘Hanging’ in the Special drop-down menu.  Set it to 0.25″.

7/17/2019: IBM’s Data Breach Calculator
In the United States data breaches will be most expensive for the financial world, big tech, and the healthcare industry.  Breaches are comparatively inexpensive for companies focusing on research and organizations in the public sector.

7/18/2019: More Tips on Slack
Slack does not include a built-in litigation hold function.

7/19/2019: Text to Columns on Line Breaks
If you want to split data in a column where the line break appears, after choosing the option for delimited text, in the Other box enter, ALT + 0010 (on the number keypad).

7/20/2019: Command to find hidden files
A simple Windows command will generate a list of all hidden files in a directory.   Enter: dir /ah

7/21/2019: Searching for exact phrases in Outlook
A change to the registry can allow you to run searches for exact phrases in the body of emails.

7/22/2019: WinZip error: central and local directory mismatch
A zip file is structured to have file headers preceding each file entry, followed at the end by a central directory. The central directory lists the file entries and associated metadata, keeping track of each file’s location.

7/23/2019: Slack Now Working Faster
The desktop version of Slack released this month loads 33% faster.

7/24/2019: Are your Facebook friends disqualified?
The Florida Supreme Court ruled in Law Offices of Herssein & Herssein, P.A. v. United Servs. Auto. Ass’n, No. SC17-1848, 2018 Fla. LEXIS 2209 (Nov. 15, 2018), that a Facebook friendship is not by itself sufficient to require the disqualification of a judge.

7/25/2019: Are exhibits entered into evidence or in evidence?
“Evidence is not a place into which something goes or is placed. It is a status or a state of being. A thing is either ‘in evidence’ or ‘not in evidence’; it is not ‘into evidence’ or ‘out of evidence.”‘

7/26/2019: Reset Clicked on Web Links
The Chrome add-in Web Developer will mark all links as unvisted.

7/27/2019: Tool to analyze dump files
The Debug Diagnostic Analysis tool comes installed with Windows.  It can help you analyze .dmp files.

7/28/2019: District of Idaho: When the Government Picks the Finger, Fingerprints Used to Unlock Smartphones are not Testimonial Evidence
A fingerprint used to unlock a smartphone is not testimonial evidence under the 5th amendment.

7/29/2019: Jump to a scroll position on a web page
Search for anchor point names preceded by <a href=” and then add the name after the address and a # .  The new link will jump to the designated place on the page.

7/30/2019: Interrupting a mass PDF export to save one document
An admin can set Relativity to allow single documents to be saved as PDFs while a mass op to save multiple documents as PDFs is running.

Mobile Data

Part 3: Data, Data Everywhere – Advanced Strategies for Analyzing Mobile Data

In Part 1 of our series on mobile devices, we discussed preserving and collecting mobile device data. In Part 2, we turned to the types of information you can expect to encounter with mobile devices and key considerations for analyzing, reviewing, and producing these types of data. In Part 3, we examine advanced strategies for analyzing device data and how you can apply those strategies to your cases.

Understanding and organizing the available data

An initial step toward better understanding mobile device data is to organize that content, conceptually, into two groups: communications data and non-communications data. The chart below displays different types of information available from mobile devices organized into those two groups:

Communications Data Non-Communications Data
Call Logs Calendar
Chats Configurations
Email Contacts
Instant Messages Databases
MMS Messages Installed Applications
SMS Messages Journeys
Voicemails Locations
Notes
Passwords
Searched Items
User Accounts
Web History
Wireless Networks

 

Communications data encompass all communications available from or through the device. It includes emails from whatever email accounts are on the phone, business and personal. It also includes messaging from social media and chat applications, such as Skype, Facebook, and LinkedIn, running the full spectrum from purely personal to professional only.

From an analytical perspective, communications data matters because it can help you figure out who was communicating with whom, when, and about what. The communications content is key to efforts to find out what happened leading up to a lawsuit or investigation and to building up and tearing down the narratives that help drive investigations and lawsuits to resolution. Metadata from communications can be used to help create timelines, map webs of communications between actors you care about, and identify gaps in communications. Text from communications can be used both to support or refute hypotheses you have constructed and to help you find important information you had not imagined might exist.

If you limit your analysis to specific categories of content, you may find that a related data set also needs to be included to get a more complete picture of what happened. For example, “Instant Messages” data often is not included in the “Chats” data; if you only consider the latter, you could be ignoring key information. You may also find indications of data sources outside of the mobile device that you may want to collect, such as cloud-based accounts that are identified in the “User Accounts” data. Technology professionals can help you take a deeper dive into mobile data that may reveal more about the user’s activity.

Non-communications data consists of every form of data other than communications data. The content can include passwords needed to access content on the device or elsewhere; various types of notes entered by the user; multiple different sources of location data, including locations at which the user took pictures; photos the user took or received; number of steps taken; and so on.

Non-communications data offers a wealth of information potentially available from mobile devices that can be used for fact development, such as location history, web browsing activity, and call logs. When considering advanced analysis of mobile devices, you should first have a high-level understanding of the types of available information and the methods mobile devices typically use to store data. Most mobile devices store information in a series of databases, usually in SQLite format. These databases store everything from chat communications to file locations to individual applications’ user data. Non-communication data is most likely found in one or more databases on the phone. Forensic tools, such as Cellebrite, perform the extraction and organization of the database information for reporting, but it is also possible to extract and review the individual SQLite databases. It is important to note that forensic tools do not export information from every database; this can be due to encryption, a propriety format, or an inability of the forensic tool to export that type of data.

Non-communications data can be analyzed in a wide range of ways. For a personal injury case where the plaintiff has alleged impaired mobility, for example, you might use data about number of steps per day to help refute the assertion that the plaintiff can no longer walk for more than five minutes at a stretch. Or in a food contamination matter you might compare information about calendar entries, locations, and wireless networks to demonstrate that inspectors were not actually inspecting sites when they claimed to be.

To better appreciate the scope of data available from mobile devices, the following is a list of the 35 categories of data shown in a Cellebrite spreadsheet report for an actual phone, a topic we covered in Part 2. For each category listed, we have shown the number of items in the spreadsheet. The total number of items for the first 34 categories is 88,981. The final category, “Timeline”, contains an additional 47,389 rows of information. For each category ask yourself, “How might analyzing this data, alone or in conjunction with other data, help me in my matter?”

Spreadsheet Tab Number of Items in Tab Number of Columns in Tab Description
Summary n/a n/a Basic information such as device type, report creation date and time, and name of examiner.
Device Information n/a n/a Information about the device, such as serial number, model number, and OS version; last activation time; and phone settings such as time zone, locale language, and whether cloud backup was enabled.
Archives 7 26 Information about archives, such as name, size, path, and modified date.
Audio 1,501 26 Information about voicemail and recordings.
Bluetooth Devices 1,087 9 Information about Bluetooth devices, such as device name and MAC (media access control) address.
Calendar 336 22 Information about calendar entries such as subject, dates, and attendees.
Call Log 6,789 16 Information about calls made and received, including phone numbers, dates and times, and duration.
Chats 2,661 50 Information about chat communications, including dates and times, participants, and the chats themselves.
Configurations 38,402 26 Information about configurations of the various applications used by the mobile device.
Contacts 2,203 21 Information about contacts on the phone, such as name, phone numbers and email addresses, and sources of the contacts.
Cookies 5,824 16 Information about cookies on the device, including name (e.g., “GAPS”), domain (e.g., “accounts.google.com”), and related application (e.g., “Hangouts”).
Databases 586 29 Information about databases on the phone, including application (e.g., “Kindle”), path, and associated metadata.
Device Notifications 201 21 Information about notifications stored on the device, such as “New JetShuttle SOUTH FLORIDA(West Palm Beach)-NEW YORK(Teterboro) (25 MAY) available for you”.
Document 3 26 Information about documents stored on the device.
Emails 2,531 22 Information about email messages, such as from and to, date and time, and source.
Image Hashes 1 6
Images 4,756 26 Information about images on the device, including file name, path, and metadata.
Installed Applications 259 20 Information about applications installed on the device, such as name (e.g., “Audible”), identifier (e.g., “com.audible.iphone”), and purchase date.
Instant Messages 552 19 Information about instant messages, such as from and to, subject, body, and date and time.
Journeys 18 12 Information about trips taken, such as journey (e.g., “Uber trip” or “My Location”), start and end times, and from and to points (e.g., 5/2/2017 11:22:50 PM(UTC-4): (25.703148, -75.041062),”).
Locations 896 19 Information about stored location information, such as wi-fi connections, geo-tagged media files, geo-tagged calls and chats, and map application activity.
Log Entries 310 17 Information about use of the device, such as the amount of logged data usage by applications.
MMS Messages 445 37 Information about MMS (Multimedia Messaging Service) messages, such as from and to, date, and body of message.
Notes 35 16 Information about notes on the device, such as title, body, and dates and times.
Passwords 164 12 Information about passwords used with the device.
Searched Items 658 13 Information about searches performed using the device, such as source (e.g., “Safari”) and value (e.g., “what’s the difference between contemporary and modern”).
SMS Messages 12,050 19 Information about SMS (Short Message Service) messages, such as from and to, date, and body of message.
Text 35 26 Information about text and log files stored on the device.
User Accounts 21 15 Information about user accounts on the device, including user name (e.g., john@gmail.com) and entries (e.g., “-Account Description: Exchange”).
Videos 28 26 Information about video files on the device, including name, path, and meta data.
Voicemails 1,498 11 Information about voicemail messages, including from (phone number and possibly name), date and time, and duration.
Web Bookmarks 56 16 Information about webpages bookmarked.
Web History 5,466 11 Information about webpages visited.
Wireless Networks 52 17 Information about wireless networks connected to.
Timeline 47,389 23 Comprehensive information about device activity, including user communication activity.

 

A closer look. Each of the tabs contains a range of information about its contents. To illustrate this, we will take a look at the “Databases” tab (see screenshot). This tab lists the 586 SQLite databases on the device. Each database has up to 29 columns of information.

This database report is the first report you should review if you are interested in seeing what information is available on the mobile device. You may find that a new or obscure application was heavily used by the user, and this information may not be extracted by your forensic tool—resulting in potentially omitting key information.

If you find an important application that is listed in the database report, you may be able to review the database by opening it with an SQLite reader. Generally, it is advisable to partner with an experienced forensic expert for advanced analyses of mobile SQLite databases. It will be necessary to spend time understanding the structure of that application’s database before you can determine what it contains. You can learn more about SQLite here and download a free SQLite reader here.

As mentioned, the “Databases” tab contains 29 columns. The following table is the entry for one of the databases, showing the columns and their contents for that database. Note that for some of these columns we have provided explanations; for others we have not:

Column Title Contents Explanation
# 5 A sequential number assigned when the spreadsheet report is generated.
File System iPhone
Name AEAnnotation_v10312011_

1728_local.sqlite

Row count 126 The number of records in this database, which represents the amount of activity contained in the database.
Decoded by Whether Cellebrite decoded and is able to export the contents.
Application iBooks The database’s application, such as Facebook or Address Book.
Size (bytes) 102400
Path iPhone/Applications/com.apple.iBooks/

Documents/storeFiles/AEAnnotation_

v10312011_1728_local.sqlite

Encrypted Whether the database is encrypted. This is extremely important for identifying any data sources that may be impossible to extract because of encryption.
Meta Data iPhone Domain:AppDomain-com.

apple.iBooks

Encryption Key:030000002B5BCDAD

7156BBEA9D9847102D7F7604594AA

54DAB03EF75C5B347A8120AC9C8A

B7271F3D030E65F

iTunes Backup original file name:715cda36fa46cecd13b4fc1ba61c8

2817895224f

File size:102400 Bytes

Chunks:1

Date & Time

Creation time:12/25/2014 4:42:37 PM(UTC+0)

Modify time:5/3/2017 3:16:59 PM(UTC+0)

Last access time:

Deleted time:

Offsets

Data offset:0x0

Tags Database
MD5 b7c315510c4c398867c4f260413f44de
Hash sets
Category
SHA256
Modified-Date 5/3/2017
Modified-Time 5/3/2017 11:16:59 AM(UTC-4)
Created-Date 12/25/2014
Created-Time 12/25/2014 11:42:37 AM(UTC-5)
Accessed-Date
Accessed-Time
Deleted
Deleted-Date
Deleted-Time
Tag Note
Additional file info
Attachment source app
Carving False
Duplicates

 

Conducting advanced mobile device data analysis

The volume and variety of information available from even a single cellphone offer a wide array of ways to analyze the content from mobile devices. As discussed above, the mobile phone we looked at for this exercise contained 35 categories of data, with a tab in the mobile device spreadsheet for each category. The tabs contained a combined total of 136,370 rows of information, with between 1 to 47,389 rows per tab and with an average of 4,132 and a median of 2,781 rows per tab. The tabs contained a combined total of 671 columns of information, between 6 and 50 columns per tab and an average of 20 and a median of 19 columns per tab. In all, there were 638 different column names. Most columns names appeared only one, two, or three times. Others appeared regularly, such as “Name” (16 times); “Source” (12 times); and “Created-Date”, “Modified-Date”, “Modified-Date”, and “Modified-Time” (10 times each).

 

Type of Information Total in Spreadsheet Maximum Minimum Average Median
Category (one per tab) 35
Rows 136,370 47,389 per tab 1 per tab 4,132 per tab 2,781 per tab
Columns 671 50 per tab 6 per tab 20 per tab 19 per tab
Column Names 210 31 occurrences 1 occurrence 3 occurrences 1 occurrence

 

Given this volume and variety of data, what forms of analyses can be performed? You could try using simple key words searches or more advanced Boolean searches, but by themselves these approaches are not likely to deliver results of great interest.  You could attempt to perform some form of TAR, but even if you were able to figure out how to deploy a TAR tool against a group of spreadsheets the amount of data in the spreadsheet cells would be too spare for most if not all TAR tools do deliver any meaningful results.

Instead, this is a great time to don the best thinking cap you can find. Start with your objectives. Are you, for example, attempting to determine whether you can prove an affirmative defense? If so, what are the elements of that defense? And for each element, what do you need to prove? And to prove each element, what information do you need? And to find that information, what do you need to look for

Because this may be getting a bit too abstract, here are two specific examples of analyses that can be performed: contact resolution analysis, and geolocation analysis.

Contact Resolution Analysis. Contact resolution analysis matches the name of a contact in the communications data back to the real-world name or alias found in the address book. In other words, it is the matching of phone numbers and/or IDs to the names found in the address book. The following is an example of address book information that can be used:

The goal of the analysis is to identify “John Smith” every time one of his three phone numbers or email address appears within his communications. This process requires importing every communication record into a database, parsing each of the address book entries, and updating the To/From fields to include “John Smith” alongside the phone number or email address, because the communications may not have his name included in all communications. The challenge with this analysis is that address books are not always reliable. Some people make mistakes entering names and phone numbers in them, causing misidentified individuals. Also, office main phone numbers as opposed to direct phone numbers can cause issues, so careful analysis is required.

Once the matching is performed, you can mine the communications data for patterns and identify key individuals. Analyzing communication patterns can demonstrate relationships among parties and the frequency of communication.  Tools such as Brainspace, NexLP, and Tableau can visualize communication patterns and enhance your review of this information.  The following example shows a visualization of email communications of Enron data in NexLP:

Geolocation analysis. While analysis of a custodian’s location history has frequently been a tool for criminal cases, it also can be useful in civil matters and investigations. For cases such as intellectual property theft and internal investigations, knowing where someone was at a specific time is important. Mobile devices—for better or worse—might provide that information. Some phones have built-in applications that track a user’s geolocation, and some user-installed applications may collect geolocation data. Applications such as map and chat programs can track and store a user’s location, and some users opt to include geotagging in their photos and videos. All this information can be analyzed.

Most geolocation is reliable for analysis, but the location information may be off by up to several hundred yards if the user is in a location with a bad GPS signal or is traveling at high speeds. That means that cases that require pinpoint-accurate location information may not be able to fully rely on the data from the mobile device itself and may require that information be obtained from other sources.

Mobile device forensic reports typically store geolocation data in a single report. For Cellebrite, this information can be found in the “Locations” report. These reports include information about wireless network usage, where pictures were taken, maps (lookup and starting location), and even locations where text messages were sent. You can filter the type of events and build maps or timeline analysis to show where and when events took place. The following is an example of a simplified geo-mapping of the location information from a Cellebrite report.

Conclusion

Although often not even preserved in civil litigation, the content from mobile devices offers enormous opportunities to lawyers and their staff seeking to better understand their matters and hoping to be able to build, test, and present more effective narratives.

The basic reports most commonly generated about the contents of mobile devices offer a starting point, and sometimes a very good one, for those seeking insight from that data. To take better advantage of the opportunities that mobile device data presents, you should consider moving beyond the basics and taking the first steps toward performing more advanced analytics on that data.

Baseball team

Three Ways E-Discovery is Just Like Baseball

Admittedly, I’m not the biggest sports buff. However, when I moved to Kansas City four years ago, what my family and I realized is that you can’t help not be a fan of the Royals, Chiefs, Jay Hawks, and Sporting! Everyone in my family proudly wears some form of KC sports team shirt and/or hat. The energy here in Kansas City is contagious. In fact, the year we moved to KC, I was lucky enough to take clients to Game 1 of the 2015 World Series! Although not a sports fanatic, I know one thing to be true about all team sports – there are so many invaluable lessons about life to be learned. Not surprisingly, there’s many correlations to e-discovery. Today, I want to share with you three of those lessons.

1. E-Discovery is a Team Sport

E-discovery is a team sport! In e-discovery, there are several different roles within and outside of an organization that may be involved in a matter. Each of those people play a different, yet fundamental role in governing the information, securing, storing, collecting, preserving, processing, hosting, searching, analyzing, and producing data. Let’s review the team players.

Information Technology (IT)

IT personnel play a critical role at both law firms and corporations. From instantiating environments with the appropriate levels of CPU, RAM and storage to ensuring the infrastructure has 99.9% uptime. Then, there is the responsibility to ensure the data that’s being stored is protected against cyberattacks such as viruses, malware, phishing, ransomware, et cetera. Their role is vastly more complex than just ensuring your e-mail works correctly. From an e-discovery perspective, there’s the important task of being able to help attorneys find information, preserve it correctly, make a pristine copy, preserve the data and then send it downstream. This part of the team is hugely important to both the underpinnings of not just day-to-day, but ensuring lawyers are protected from sanctions for inadvertently destroying data. The IT players may not know the Federal Rules of Evidence or Civil Procedure like the attorneys, but with the help of the attorneys, they will understand what they need within the Rules to ensure compliance.

Litigation Support and Paralegals

The Litigation Support team and Paralegals are invaluable to the entire e-discovery process. They are the individuals who understand the e-discovery technology and how it is going to help the attorneys ethically and responsibly perform their job of finding relevant and responsive document. But those documents wouldn’t ever get there if it weren’t for these members of the team. A law firm’s Litigation Support team and paralegals may need to work with their client’s IT team to ensure they’re collecting and preserving all the data so that they can ingest it, process it, and cull it down before promoting for attorney review. They may also be working with in-house IT to ensure that in-house tools and/or outsourced web hosted applications are working correctly so that the attorneys don’t have any hiccups during their review. Like IT, the Litigation Support and paralegal professionals may not know the full details of case law that has been handed down that tells lawyers how to ensure they’re protecting themselves against spoliation, inadvertently producing privileged documents, or what the issues of law mean, but with the help of the attorneys, they will understand what they need to within the case law and rules to ensure compliance.

C-Suite

The C-Suite are part of the e-discovery team as well. They may not know the technology as well as IT and Litigation Support and may not know the Rules and case law as well as the attorneys, but they understand what it takes to run a successful business. Having the investments in the right technology to put down a defensible and auditable Legal Hold, appropriately collect and preserve documents, and invest in advanced technology that can cull through data faster that reduces the overall time in reviewing documents, and all the while ensuring IT has what they need to “protect the castle” against cyber criminals is a massive undertaking. Their role in working with the attorneys and leaders within IT and Litigation Support is critical for the entire team to be successful.

Attorneys

Naturally, all the work that the IT Team and Litigation Support are doing are in support of the attorneys.  It should go without saying, but it is the attorneys who are responsible for upholding the law and defending their clients in the most ethical, strategic, and logical way possible. Most importantly, the attorneys must follow the Rule of Law. To make this happen, lawyers must be able to understand the issues of law involved in each matter and apply the law to the facts. To apply the facts successfully though, the attorneys must be able to get to the most responsive facts to prove their points. Therein lies the role of IT and Litigation Support. The attorneys may not want to understand “how the beans are roasted”, but it is the responsibility under Rule 1 of the ABA Model Rules of Responsibility to do their due diligence on the technology to competently represent their client. It is critical so that they can instruct the other team members what must go right in order to win their cases with the help of technology. Plus, under Rule 5.1, they must appropriately supervise IT, Litigation Support, and the Service Providers. Together with the C-Suite, the attorneys know what it takes to run the business of law. After all, they are the reason why the doors stay open in a law firm and protect corporations from closing their doors!

Service Providers

I’ve written about how to choose the right service provider before (here and here), but I will take a moment to underscore a couple of key points. First, when a law firm or legal department chooses a service provider, they should be choosing a partner and not a vendor. I liken a vendor to the guy selling me the hot dogs at Kauffman Stadium while I’m watching the Royals play ball. An e-discovery service provider should ultimately be an extension of your team, and therefore, have the same goals, principles, and mission as the lawyers, IT, Litigation Support, and the C-Suite. Leveraging a service provider can be critical for their expertise in anything from forensics to review lawyers. There’s so much value that can be derived in working with a true partner. Chosen well, the relationship with an e-discovery service provider should provide harmony, not dissonance with the law firm or legal department.

2. Know the Rules of the Game

Did you know that there are 240 pages to the official MLB Rules of Baseball? Contained therein, you will find how to play the game as well as the definitions of penalties and violations. In fact, a Chapter 6 is all about illegal actions! For the team to play the game correctly, there must be a mastery in the Rules as well as the player’s performance. Being able to judge the speed, velocity, and direction of a ball coming your way over 100 MPH is just part of the battle.

The same can be said for e-discovery. For instance, lawyers must understand the Federal Rules of Civil Procedure, the Federal Rules of Evidence, the ABA Model Rules of Ethics (and the appropriate states’ versions of the same), and a mountain of case law about both e-discovery to ensure things go right. For the e-discovery team to litigate a case correctly, there must be a mastery in Rules as well as the attorney’s performance in drafting and arguing motions. Being able to pen the most persuasive brief the legal system has ever seen is only part of the battle. Ultimately, it is the attorneys who will be letting everyone else on the e-discovery team know what they need to know.

3. Hard Work Yields Results

In baseball, there are Playbooks that detail out how the game is to be played so that it is repeatable enough for them to win. It takes an inordinate amount of hard work to understand and craft out the strategies that to go into this Playbook. To be sure, the talent of the baseball player is never enough. The baseball team needs to create strategies, document the same, and then execute those strategies with the talents of the players working together as a team.

The same can be said for e-discovery. Everyone from the C-Suite, IT, Litigation Support, Attorneys – and the Service Providers – must all work together to create an E-Discovery Playbook that documents exactly how a Legal Hold is put into place, how compliance is enforced, how that data is forensically collected and preserved, how it is processed, ways in which ECA can be performed in an appropriate way in which data is culled down, how that data is then promoted for review, how searches are to be created, the kind of technology that will be used to efficiently search for the data, and how that data is produced in various different forms. The talent of IT alone, Litigation Support alone, the Attorneys alone, the C-Suite alone, and the Service Providers alone is never enough. The E-Discovery team needs to create strategies, document the same, and then execute those strategies with the talents of everyone working together!

Wrapping Up

The game of baseball can look easy when we’re sitting in the stands or in the comfort of your house. And, that is a good thing! It means that every person on the team (the Owner, Manager, Coaches, and all of the ball players) knows what the goal of the game is because they created a strategy to win, and as a team, everyone works together to execute. When each of these things goes right, it looks easy. The same can be said about e-Discovery. When everyone is working together, they understand the rules of e-discovery, and what it takes to win, it should look equally as flawless. With this in mind, get out there and “play ball”!

Letter from Mary Mack to the ACEDS Community

To our ACEDS Community:

I have some bittersweet news. You may have seen a note from Steve Fredette, CEO of BARBRI, ACEDS’ parent company. After four years of working with you as Executive Director of ACEDS, I have made the difficult decision to step down from this role, effective October 31st, 2019.

After much deliberation, I feel it’s time. I’m so very proud of the position our ACEDS community holds in the legal technology world and the fact that our community remains a story of global growth and career success. I’m confident our positive trend will only continue.

Your support and partnership have meant everything to Kaylee and me during our ACEDS tenure. We’ve exchanged ideas and forged new paths and together we’ve created a global community that honors accomplishment and welcomes newcomers into the electronic discovery industry. I’m especially proud of the strides we at HQ in collaboration with our chapter leaders, faculty, advisors and affiliates have made in providing career-building education and resources, and the credibility and expertise our designation exemplifies around the world.

The success ACEDS enjoys today is due to professionals and leaders like you. For all of that, and for your many kindnesses you have shown me, Kaylee, the ACEDS team and our ACEDS community, we thank you.

Moving forward, Kaylee and I will work in close collaboration with Steve, the ACEDS team and community in the search for new leadership to build upon our strong position and make new strides in the eDiscovery world.

The search for my successor will begin immediately and we will make an announcement once that person is selected. If you have any questions in the meantime, please feel free to reach out to me, Kaylee or anyone else on the team.

I am not viewing this as goodbye as we all appreciate what a tight community we are. I’ve always considered our community a giant living room where at one time or another, we all change chairs. It has been the honor of my career to serve you.

Kaylee and I look forward to thanking each and every one of our #eDiscoveryRockstars at Lit Support Day at ILTA, our 4th Annual ACEDS Detroit Symposium / Midwest eDiscovery Conference – “To eDiscovery and Beyond” and RelativityFest.

Looking forward to co-creating as our next adventure beckons.

Warmest regards,

Mary

Mary Mack and Kaylee Walstad

ACEDS Organizational Announcement from Steve Fredette, BARBRI Group CEO

Dear ACEDS Partner,

I am reaching out to you today regarding some upcoming organizational changes at ACEDS. If we’ve not met, I’m Steve Fredette, CEO of the BARBRI Group, the ACEDS parent organization.

I wanted to write you personally and let you know that our exemplary Executive Director, Mary Mack, has decided to step down from her position as of October 31, 2019. In addition, Kaylee Walstad, Vice President of Client Engagement, who has been a valuable contributor and client relationship builder, not to mention a great partner for Mary, will also be departing at the same time.

I’ve had the pleasure of working with Mary for several years now and have been continually impressed with her leadership and advocacy in the legal technology field. As you know, she is an eDiscovery pioneer who has worked tirelessly to transform ACEDS into the global community of committed, like-minded eDiscovery professionals it is today. Thanks to Mary’s efforts, you, as practitioners, have an international community where the exchange of best practices, training, professional development and networking thrives. ACEDS is an established resource for connecting people, fostering community and enhancing careers. I appreciate and thank Mary for her stellar efforts and the success we collectively enjoy today.

As we move forward, I want to reiterate our commitment to serving your eDiscovery community and fostering its growth. I am pleased that we have time to put in place new leadership and manage a proper transition, all while the entire ACEDS team will continue its work and move forward in building upon Mary’s good work.

We will be conducting our search immediately and will make an announcement once new leadership comes on board. If you have any questions in the meantime, please feel free to reach out to me directly.

Thank you for your support of ACEDS and I know you’ll join me in thanking Mary and Kaylee for their dedication and service and wishing them the very best as they move on to a new chapter.

 

Sincerely,

Stephen J. Fredette

Stephen.fredette@barbri.com
214.932.0913

ACEDS Community Newsletter for the Week of July 25

BitsBytes.png

July 25, 2019 | VOL. 8 | NO. 29

Amit Pandit, Apt Search & Selection: eDiscovery Market Overview 2019
Read more

Rob Robinson, ComplexDiscovery: An Unusually Warm Summer? eDiscovery
Business Confidence Survey Results – Summer 2019
Read more

Peter J. Borella, Trustpoint.One: Foundational Ethical eDiscovery for New
York Lawyers
Read more

George Socha, BDO: Weekly Trends Report – 7/24/2019 Insights
Read more

ACEDS at Litigation Support Day ILTACON 2019 Annual Educational Conference
Learn more and register here

Sharon Nelson, Sensei Enterprises, Inc.: High Alert: Deepfake Audios Now
Impersonating Executives
Read more

Jason Moyse via Legal Evolution: Microsoft’s Legal Department just invested
in Business Design Thinking (104)
Read more

ILTACON Email Promo_ACEDS V2

ACEDS Affiliate News

David Horrigan, Relativity: What the Kevin Spacey Cases Mean for
E-Discovery and the Law
Read more

Matthew Verga, XDD: Who Does the Reviewing, Review Fundamentals Series
Part 3
Read more

Casey Sullivan, Logikcull: Corporate Spending on Law Firms Dropped 24
Percent Last Year
Read more

Mike Hamilton, Exterro: Case Law Alert: Lying Defendant Leads to E-Discovery
Sanctions
Read more

Jenny Roberts, Everlaw: Predictive Coding, English Law, and the Disclosure
Pilot Scheme
Read more

Doug Austin, CloudNine: No Proof of Intent to Deprive Means No Adverse
Inference Sanction
Read more

Ricoh Case Study: Federal Government Agency
Read more

EDiscoveryVoice_email

ACEDS Chapter News and Events

We are excited to announce new ACEDS Chapters are being formed in Vancouver, BC,
Charleston, Toronto, Tokyo, Seattle, 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.

July 31 – Twin Cities – 2nd Annual Super Summer eDiscovery Party
Learn more and register here

August 1 – DC – DC Harbor Cruise
Learn more and register here

August 7 – Ohio – Chapter Launch and Networking Social
Learn more and register here

August 7 – Chicago – Information Governance Q&A and Concurrent CEDS
Exam Study Group
Learn more and register here

August 21 – Chicago – Rail Stop Rendezvous: Arlington Heights *Save
the Date*
Learn more

September 12 – Dallas – Back to School: Lessons on the EDRM
Learn more and register here

September 12 – Ohio – eDiscovery in Ohio – An Education Event for
Litigators and Support Professionals
Learn more and register here

September 26 & 27 – Detroit – 4th Annual ACEDS Detroit Symposium –
Midwest eDiscovery Conference
Learn more and register here

October 2 – UK – Disclosure Pilot – 10 Months in
Learn more and register here

November 6 – Chicago – Q&A and Concurrent CEDS Exam Study Group
*Save the Date*
Learn more

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Weekly Trends Report – 7/24/2019 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

ABOVE THE FOLD

Join Mary Mack and me for a new ACEDS webinar series, Monthly Insights with George & Mary, starting Wed. Aug. 7

Relativity Fest Oct. 20-23 – Join us this fall at Relativity Fest in Chicago where I will be speaking on three sessions:  LIE291972 – Is It Time to Rethink the EDRM?; PD311742 – A Call to Action: Building an e-Discovery Pro Bono Platform and Network; and PR311751 – Let’s Take This Online: Managing Mobile Data in Relativity Short Message Discovery.

ELECTRONIC DISCOVERY

Office 365 video series – Tom O’Connor of the Gulf Legal Tech Center and Rachi Messing of Microsoft are putting on a video series on the e-discovery features in Office 365. Each episode is a little under ½ hour long. Episodes so far, including the newest, Part 8, are:

More on the challenges of emojis – Samantha Murphy Kelly of CNN wrote an article about the increasing appearance of emojis in court cases and the challenges they pose to judges, citing numbers from Santa Clara University law professor Eric Goldman (33 reported cases with emojis as evidence in 2017, 53 in 2018, and 50 in the first half of 2019). While there are more than 2,823 emojis set by the Unicode Consortium, courts have not yet developed guidelines on how they should be approached.

Ethical e-discovery – In an ACEDS post, Peter Borella of Trustpoint discussed how lawyers retained in matters involving e-discovery meet their ethical obligations under the New York Rules of Professional Conduct.

CYBERSECURITY & DATA PRIVACY

CCPA –

New York Privacy Act presumed dead – On July 17 Alysa Zeltzer Hutnik and Lauren Myers of Kelley Drye reported that New York’s efforts to pass the New York Privacy Act, SB5642, have failed, leaving the CCPA as the only comprehensive privacy state statute. The next day, Kramer Levin published an Alert discussing the bill and stating that its future is unclear.

New York SHIELD Act awaits governor’s signature – In the same Alert, Kramer Levin noted that New York’s Stop Hacks and Improve Electronic Data Security Handling (SHIELD) Act, which updates New York’s data breach laws, passed the state senate and assembly and awaits the governor’s signature.

ePrivacy Regulation update – Melinda McLellan and Kyle Fath of BakerHostetler wrote that the Council of the European Union’s ePrivacy Regulation likely will not be implemented before late 2021, and discussed key concepts of the regulation up for debate and the subject of amendments. Adoption of the regulation, introduced in 2017 and originally slated to go into effect with the GDPR, may be delayed even further due to changes in oversight of the Council. According to the New York State Senate site, the bill is in committee, having been referred to Consumer Protection on May 9.

COPPA Rule comments sought – As Alysa Zeltzer Hutnik and Lauren Myers of Kelley Drye reported, the FTC announced on July 17 that it is seeking comment on the effectiveness of amendments the FTC made to the Children’s Online Privacy Protection Rule (COPPA Rule) in 2013 and whether additional changes are needed. The COPPA rule went into effect in 2000 to implement the Children’s Online Privacy Protection Act. The public comment period is open for 90 days after notice is published in the Federal Register.

OIPC (Ontario) annual privacy report – Ontario’s Information and Privacy Commissioner has released his 2018 Annual Report: Privacy and Accountability for a Digital Ontario. The 44-page report recommends initiatives to enhance access to information and protection of privacy in Ontario, including a call to modernize Ontario’s privacy laws to address risks posed by smart city technologies. For a summary, see the post written by Ruth Promislow and Katherine Rusk of Bennett Jones.

Data security management in China – Xinlan Liu of Perkins Coie prepared an overview of the draft Measures for Data Security Management published for public comment in May by the Office of the Central Cyberspace Affairs of China (official Chinese version and unofficial English translation). These measures, along with other recent draft measures (including the Measures for Network Security Review, the Regulations for the Network Protection of Children’s Personal Information and the Measures for Safety Assessment on Cross-Border Transfer of Personal Information) would be the supporting documents of the Network Security Law.

Can anonymized data truly be anonymous? – Alex Hern of The Guardian reported that according to a recent study, successfully anonymizing data is practically impossible for any complex dataset. Researchers Luc Rocher, Julien M. Hendrickx, and Yves-Alexandre de Montjoye from Université catholique de Louvain and Imperial College London wrote, in the abstract to their Nature Communications article Estimating the success of re-identifications in incomplete datasets using generative models, that “Using our model, we find that 99.98% of Americans would be correctly re-identified in any dataset using 15 demographic attributes. Our results suggest that even heavily sampled anonymized datasets are unlikely to satisfy the modern standards for anonymization set forth by GDPR and seriously challenge the technical and legal adequacy of the de-identification release-and-forget model.”

NIST mobile device security publication – The National Institute of Standards and Technology (NIST) has published a draft version of Mobile Device Security Corporate-Owned Personally-Enabled (COPE), a 351-page practice guide that focuses on the challenge of securing mobile devices within an enterprise. The document is organized into three volumes:

  • Volume A: Executive Summary
  • Volume B: Approach, Architecture, and Security Characteristics – consisting of a summary; section on how to use the guide, approach, architecture, security characteristic analysis, and future build considerations; and eight glossaries
  • Volume C: How-to Guides – consisting of an introduction, nine product installation guides, and three appendices

LEGAL TECHNOLOGY & DIGITAL TRANSFORMATION

CLOC survey results – CLOC has published a 26-page report with results and analysis of its 2019 State of the Industry survey. CLOC looked at information about corporate legal departments gathered from over 200 companies of various sizes in over 30 industries and 18 countries. The report covers legal expenditures, legal department headcount, technology and innovation, and law firm evaluations. Dan Clark of Legaltech News and Richard Tromans of Artificial Lawyer both reported on the results.

AI regulation – Sharon Nelson of Sensei Enterprises noted that the Law Library of Congress released a report, Regulation of Artificial Intelligence in Selected Jurisdictions, that looks at AI regulation and policy in jurisdictions around the world.

More activity on the contract front – From Richard Tromans of Artificial Lawyer:

New brief analysis tools – Bob Ambrogi of LawSites called attention in articles on his site and Above the Law to two new brief-analysis tools, Quick Check from Thomson Reuters, which Bob also looked at here, and Bloomberg Law’s forthcoming Brief Analyzer, which Bob discussed in an earlier post.

LawFest 2019 presentations – Slides and videos from LawFest 2019, held in New Zealand last March, are available on line:

ANNOUNCEMENTS

Date Focus Organization Title
5/16/2019 ED Relativity T.E.N. Announces Winners of the 2019 ISE Central Awards
7/18/2019 ED

C/DP

LandStar LandStar Inc. Announces Expansion of Multiplatform Data Privacy and Security Archiving & eDiscovery Solution in Multiple Markets
7/18/2019 LT/DT Thomson Reuters Thomson Reuters Acquires HighQ
7/18/2019 LT/DT CLOC CLOC Announces the Results of 2nd Annual State of the Industry Survey
7/22/2019 C/DP Proofpoint Proofpoint Drives People-centric Innovation with Two Industry-Firsts: Enhanced URL Isolation Based on User Risk Profiles and New Training Customization
7/23/2019 ED CloudNine NEW RELEASE ANNOUNCEMENT: CloudNine Concordance® Desktop 1.07
7/23/2019 LT/DT Simmons & Simmons Simmons & Simmons acquires legal engineering firm, Wavelength

ADDITIONAL ARTICLES

Date Focus Publisher Title Authors
7/15/2019 LT/DT Legaltech News Despite Analytics Being in the ‘Early Stages,’ Legal Research Execs See Bright Future Zach Warren
7/16/2019 LT/DT Legaltech News Legal Tech Bets on Compliance, Risk Management to Weather Next Recession Victoria Hudgins
7/16/2019 LT/DT Artificial Lawyer Legal Tech + NewLaw Consolidation, Investment Continues Into 2019 Richard Tromans
7/17/2019 C/DP Jackson Lewis Illinois’ Attorney General Wants to Know About Data Breaches Joseph Lazzarotti
7/17/2019 LT/DT Artificial Lawyer Legal AI Co. ContractPodAi Bags $55m Investment in Major Funding Round. (+ Then Icertis bags $115m…!) Richard Tromans
7/18/2019 C/DP Relativity Uncivil Procedure Podcast Episode 8: GDPR Brendan Ryan
7/18/2019 C/DP Robinson+Cole Cities Consider Banning the Use of Facial Recognition Technology Kathryn Rattigan
7/18/2019 LT/DT Illinois Supreme Court Commission on Professionalism Re-regulating Lawyers for the 21st Century ayne Reardon
7/19/2019 ED Complex Discovery An Unusually Warm Summer? eDiscovery Business Confidence Survey Results – Summer 2019 Rob Robinson
7/22/2019 C/DP Holland & Knight BIPA Update: Class Actions on the Rise in Illinois Courts Richard Winter, Rachel Agius, and William Farley
7/22/2019 LT/DT Forbes The Legal Industry is Starting to Collaborate — Why Now and Why It Matters Mark Cohen
7/23/2019 ED Law.com How E-Discovery Trends Are Reshaping E-Discovery Teams Nishad Shevde
7/23/2019 LT/DT Relativity A Roll-up of Cost Recovery Resources Sam Bock
7/24/2019 ED Complex Discovery The Issue That Currently Concerns eDiscovery Professionals The Most: Budgetary Constraints (Summer 2019) Rob Robinson
7/24/2019 ED eDiscovery Daily Blog No Proof of Intent to Deprive Means No Adverse Inference Sanction: eDiscovery Case Law Doug Austin

 UPCOMING EVENTS

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

7/25/2018-8/23/2019 EVENTS

Start End TZ Type Location Host Title
7/25/19 7:00 AM 7/25/19 6:00 PM IST Conference Hyderabad, India Events 4 Sure Legal / IP ConfEx & Law Tech Exhibition
7/25/19 7:30 AM 7/27/19 12:30 PM MT Conference Santa Fe, NM ALI-CLE Current Developments in Employment Law 2019
7/25/19 8:30 AM 7/26/19 4:00 PM CEST Conference Berlin, Germany ABA ABA Cross-Border Institute: The Intersection of Global Discovery, Privacy and Data Security
7/25/19 8/1/19 CT Conference Austin, TX SANS DFIR Summit & Training 2019
7/25/19 11:30 AM 7/25/19 1:15 PM PT Meeting Los Angeles, CA ACC hACCess: CCPA: How to Anticipate and Defend Litigation Under California’s New Privacy Law
7/25/19 12:00 PM 7/26/19 1:30 PM ET Webinar ABA Biometric Identifiers and Technology: Privacy and Security
7/25/19 1:00 PM 7/25/19 2:00 PM ET Webinar OLP The Dark Web
7/25/19 1:00 PM 7/25/19 2:00 PM ET Webinar MER File Analysis: Finding the Value in Records Management and Beyond
7/25/19 1:00 PM 7/25/19 2:00 PM ET Webinar ACEDS Improve Review Outcomes with Predictive Coding on Everlaw
7/25/19 2:00 PM ET Webinar DATAVERSITY Metadata Management: from Technical Architecture & Business Techniques
7/31/19 8:00 AM ET Webinar The Sedona Conference Webinar: The Sedona Conference Commentary and Principles on Jurisdictional Conflicts over Transfers of Personal Data Across Borders, Public Comment Version
7/31/19 9:30 AM 7/31/19 12:00 PM CT Meeting IAPP Converging Governance for Privacy and Third-Party Risk
7/31/19 11:00 AM 7/31/19 12:00 PM ET Webinar ILTA That Information Leak is Coming from Inside the Organization. What are You Doing About it?
7/31/19 12:00 PM ET Webinar ComplexDiscovery How Corporate eDiscovery Programs Improve Efficiencies and Reduce Cost
7/31/19 1:00 PM ET Webinar CloudNine Key eDiscovery Case Law Review for First Half of 2019
7/31/19 4:00 PM 7/31/19 7:00 PM CT Party ACEDS ACEDS Twin Cities Chapter, WiE, & MALSP: 2nd Annual Super Summer eDiscovery Party
8/1/19 10:00 AM ET Webinar Exterro The Convergence of E-Discovery & Privacy: Why Legal Leaders Must Take Notice
8/1/19 11:00 AM 8/1/19 12:00 PM ET Webinar ILTA Cybersecurity and the Partner: Roles, Requirements and Reporting
8/1/19 1:00 PM 8/1/19 2:30 PM ET Webinar Strafford FRCP 45 Third-Party Subpoenas: Using or Objecting to Subpoenas to Obtain Testimony and Evidence
8/1/19 7:00 PM 8/1/19 9:00 PM ET Meeting Washington, DC ACEDS ACEDS DC Chapter: DC Harbor Cruise
8/6/19 1:00 PM ET Meeting Active Navigation Ranking and Remediating Sensitive Data/Records to Minimize Risk Impact
8/6/19 3:00 PM 8/13/19 7:00 PM PT Conference San Francisco, CA ABA ABA Annual Meeting
8/7/19 5:00 PM 8/7/19 7:00 PM CT Meeting Chicago, IL ACEDS ACEDS Chicago Chapter: Information Governance Q&A and Concurrent CEDS Exam Study Group
8/7/19 6:00 PM 8/7/19 9:30 PM ET Meeting Boston, MA ACEDS ACEDS New England Chapter: Boston Harbor Sunset Cruise
8/8/19 1:00 PM 8/8/19 2:00 PM ET Webinar Today’s General Counsel Spotlight on Early Case Assessment & AI: How to Champion Your Firm’s Audio and Video Files
8/8/19 2:00 PM ET Webinar Sidley Litigation Exposure in the New Era of the California Consumer Privacy Act
8/13/19 11:00 AM 8/13/19 12:00 PM ET Webinar Lepide How to Implement a Data Centric Audit and Protection Strategy – Part 1
8/13/19 1:00 PM ET Webinar Exterro Re-Purposing E-Discovery Processes to Meet Privacy Requirements
8/13/19 2:00 PM ET Webinar DATAVERSITY Data Management versus Data Strategy
8/14/19 1:00 PM ET Webinar Exterro The Results are In…Top E-Discovery & Records Request Challenges for Government
8/15/19 2:00 PM ET Webinar DATAVERSITY Data Governance versus Information Governance
8/18/19 8:00 AM 8/118/19 5:30 p ET Conference Orlando, FL The Masters Conference IT IS Time To Learn How Blockchain, Artificial Intelligence, Cybersecurity And More Will Be Your Magic Kiss To Wake You Up To The 21st Century.
8/18/19 12:00 PM 8/22/19 5:00 PM ET Conference Orlando, FL ILTA ILTACON 2019
8/20/19 12:00 PM 8/20/19 1:00 PM CT Meeting Dallas Area Paralegal Association DAPA General Memebership Meeting
8/21/19 CT Meeting Arlington Heights, IL ACEDS *Save the Date* ACEDS Chicago Chapter: Rail Stop Rendezvous: Arlington Heights
8/22/19 2:00 PM ET Webinar DATAVERSITY Data Quality Best Practices

 

Statue of justice

Foundational Ethical eDiscovery for New York Lawyers

The pervasiveness of technology in our everyday lives is unmistakable.  The next time you walk down a city street, go out for coffee or spend time at a family gathering, take a moment, and reflect upon the number of people on their mobile devices – it is astonishing!  At this moment, you may be asking yourself, how is this relevant to ethical eDiscovery – so let me explain.

In litigation there may be electronically stored information (“ESI”) that needs to be preserved, collected, processed and reviewed (collectively “eDiscovery”).  ESI can take the form of emails, servers, hard drives, mobile devices, such as cell phones, among others.

So, if a lawyer finds themselves retained for a matter that involves eDiscovery, how do they meet their ethical obligations under the New York Rules of Professional Conduct (hereinafter “Rules”).1  Well let us start with the Rules.

Ethics

In evaluating the Rules, it is important to note a few things first.  Only the black letter Rules are binding upon lawyers – the Comments accompanying the Rules are not binding upon lawyers and serve as a guide to interpreting the Rules – the Preamble and Scope of the Rules are also non-binding upon lawyers and serve as a guide to interpreting the Rules.2

The most salient black letter Rule as it relates to ethical eDiscovery is Rule 1.1, “Competence.”  In relevant part it states, “(a) [a] lawyer should provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. (b) A lawyer shall not handle a legal matter that the lawyer knows or should know that the lawyer is not competent to handle, without associating with a lawyer who competent to handle it.3” Comment [8], which accompanies this Rule states, “[t]o maintain the requisite knowledge and skill, a lawyer should … (ii) keep abreast of the benefits and risks associated with the technology the lawyer uses to provide services to clients or to store or transit confidential information.” (emphasis added).

In 2014, the New York State Bar Association issued an ethical opinion that discussed the interplay between technology and the Rules – specifically, ESI in the cloud under Rule 1.6 Confidentiality of Information and Rule 1.1 Competence.4  And in 2013, another ethical opinion discussed Rule 1.1 Competency as it relates to social media and preservation of evidence.5 Both opinions providing support for the importance of competency as it relates to eDiscovery.

Accordingly, lawyers should to familiarize themselves with technology and maintain a level of technological competence to adequately advise clients on eDiscovery.  Moreover and as a helpful tip, knowing the right questions to ask of your client, vendors and opposing counsel, may be the best way to maintain competence.6

Where a lawyer lacks the requisite competency to handle eDiscovery there are three options to ethically handle the matter – (1) adequately informing themselves about eDiscovery to meet the standards of an competent lawyer7; (2) associate with a lawyer who possess the requisite eDiscovery competence8 or (3) associate with a nonlawyer9 who possesses the requisite eDiscovery competence.10 Alternatively, the lawyer should decline the representation.

Where a lawyer does associate with a nonlawyer to meet the standards of a competent lawyer, the lawyer must adequately supervise the nonlawyer to ensure the actions of nonlawyers comport with the Rules.11 Failure to adequately supervise can lead to disciplinary action.12

State and Federal Rules

In addition to the Rules, lawyers should be cognizant of the New York State and Federal Rules, which establish competency in the eDiscovery context.

The Uniform Civil Rules for the New York Supreme Court and the Commercial Division of the New York Supreme Court, with respect to the preliminary conference, require lawyers to be sufficiently versed in matters relating to their clients’ technological systems to discuss competently all issues relating to electronic discovery.13 Consequently, lack of discovery competency can result in sanctions.14

The Federal Rules of Civil Procedure, Rule 26(f)(c)(3), with respect to the discovery plan, requires lawyers to state the views and proposals on issues about disclosure, discovery or preservation of ESI, including production format.  And under Rule 26(g)(1), the lawyer of record must sign to certify that the disclosure and discovery comports with the Rule itself; failure to do so can result in sanctions under Rule 26(g)(3).

Accordingly, for a lawyer to comply with the Court Rules, they must be sufficiently well-versed in eDiscovery.

Legal Malpractice and Disciplinary Action

When looking at the Rules it is important to delineate between legal malpractice and a disciplinary action.

To state of cause of action for legal malpractice requires that the (1) lawyer failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and (2) lawyer’s breach of the duty proximately caused the plaintiff actual and ascertainable damages.15  Consequently, a violation of a disciplinary rule without more, is insufficient to support a legal malpractice cause of action.16  And a violation of the Rules does not form the basis for a legal malpractice cause of action, but some of the conduct constituting a violation of the Rules, may also constitute evidence of malpractice.17

The Rules provide a framework for the ethical practice of law.18  Moreover, the Rules state the minimum level of conduct below which no lawyer can fall without being subject to disciplinary action.19   And the failure to comply with an obligation or prohibition imposed by a Rule is a basis for invoking the disciplinary process.20

Practical TIP

In closing, I wanted to provide helpful tips to assist lawyers in meeting their ethical obligations under the Rules.

A lawyer and litigation support professional should start communicating upon commencement of the matter. They should discuss the merits of the matter and come up with an eDiscovery strategy to meet case goals.21

Transparent and clear communications are the keys to a successful eDiscovery engagement – communications should include:

  • Discovery deadlines
  • ESI protocols
    1. How and what format should the ESI be collected
    2. What format should the ESI be produced
    3. What metadata fields should we agree to produce
    4. What metadata fields should we avoid committing to produce
  • Is a forensic consultant needed
  • Document Review
    1. What is the best method to review documents given the nature of the matter, budget and time constraints
      1. linear review or technology assisted review (TAR)
      2. use of analytics – email threading and near deduplication

 

1. The Rules, also known as, disciplinary rules.

2. See New York Rules of Professional Conduct (N.Y. Rule) Preamble; Scope [13]; Roy Simon & Nicole Hyland, Simon’s New York Rules of Professional Conduct Annotated, 2017 ed. 2 (2017).

3. Unlike ABA Model Rule 1.1, its progeny the N.Y. Rule 1.1(a) uses the word “should” instead of “shall”. Accordingly, the language does not mandate competent representation, but rather, competence is merely aspirational. The rationale for the “should” language is twofold – (1) every lawyer makes mistakes and a lawyer should not be subject to professional discipline for an isolated instance of incompetence; and (2) incompetence is largely policed by legal malpractice suits. Simon & Hyland, supra, at 62 – 63.  However, N.Y. Rule 1.1 (b) “puts teeth in the duty of competence by essentially prohibiting incompetent representation.” Simon, Roy, Artificial Intelligence, Real Ethics, New York State Bar Association Journal, April 2018, par. 5.

4. New York State Bar Association, Ethics Opinion 1020; see Simon, Artificial Intelligence, supra, pars. 11-13 (discussing technology as it relates to N.Y. Rule 1.6, confidential information).

5. New York County Lawyers’ Association, Ethics Opinion 745.

6. See Kristen Weil & Ronald Hedges, Ethical E-Discovery and New Technologies, New York Law Journal, March 2017.

7. See Y. Rule Comment 1.1 [4] – [5], [8].

8. See N.Y. Rule 1.1 (b); N.Y. Rule Comment 1.1 [6].

9. Examples of nonlawyer eDiscovery professionals include, project managers, litigation support, eDiscovery vendors, forensic engineers, among others.

10. See Y. Rule 5.3.

11. See Y. Rule Comment 5.3 [1] – [2].

12. See Matter of Jeffrey M. Jayson, 3 A.D.3d 80, 81-2, 772 N.Y.S.2d 769, 770-71 (N.Y. App. Div. 2003)

13. See 22 NYCRR 202.12(b); 22 NYCRR 202.70(g)(1)(b).

14. See Ocwen Loan Servicing v. Ohio Pub. Emps. Ret. Sys., 2015 NY Slip Op. 51775(U) (N.Y. Sup. Ct. Dec. 7, 2015) (Plaintiff sought spoliation sanctions pursuant to CPLR 3216, claiming that Defendant failed to preserve relevant electronically stored information. The Court granted Plaintiff’s motion insofar as Plaintiff requests an adverse inference instruction and further ordered Defendant pay the lawyers’ fees and costs incurred by Plaintiff in preparing the sanctions motion).

15. See Felix v. Klee & Woolf, LLP, 138 A.D.3d 920, 921, 30 N.Y.S.3d 220, 223 (N.Y. App. Div. 2016).

16. See Fletcher v. Boies, Schiller & Flexner LLP, 140 A.D.3d 587, 588, 35 N.Y.S.3d 28 (N.Y. App. Div. 2016).

17. See Swift v. Choe, 242 A.D.2d 188, 194, 674 N.Y.S.2d 17, 21 (N.Y. App. Div. 1998); N.Y. Rule Preamble; Scope [12].

18. Y. Rule Preamble; Scope [8].

19. Y. Rule Preamble; Scope [6].

20. Y. Rule Preamble; Scope [11].

21. A good starting point is the EDRM Project Management Framework. See edrm.net/frameworks-and-standards/edrm-model/project-management/

An Unusually Warm Summer? eDiscovery Business Confidence Survey Results – Summer 2019

This is the fifteenth quarterly eDiscovery Business Confidence Survey conducted by ComplexDiscovery. More than 1,621 individual responses have been received from legal, business, and technology professionals across the eDiscovery ecosystem since the inception of the survey and 173 respondents shared their opinions as part of the summer 2019 survey.

The eDiscovery Business Confidence Survey

The eDiscovery Business Confidence Survey is a non-scientific quarterly survey designed to provide insight into the business confidence level of individuals working in the eDiscovery ecosystem. The survey consists of nine core multiple-choice questions focused on factors related to the creation, delivery, and consumption of eDiscovery products and services. Additionally, the survey contains three optional questions focused on the business operational metrics of days sales outstanding (DSO), monthly recurring revenue (MRR), and revenue distribution across customer bases.

Initiated in January 2016, to date the survey has been administered fifteen times with 1,621 individual responses. The survey is open to legal, business, and information technology professionals operating in the eDiscovery ecosystem and individuals are invited to participate primarily via direct email invitations.

Summer 2019 Survey Results

The summer 2019 survey response period was initiated on July 1, 2019, and continued until registration of 173 responses (July 17, 2019). Thanks to the strong support of the leadership and marketing team at the Association of Certified E-Discovery Specialists (ACEDS), this quarter’s survey experienced the highest number of responders in a summer survey and the second-highest number of responders in any survey since the inception of the survey in January of 2016.

While individual answers to the survey are confidential, the aggregate and unfiltered results are published to highlight the business confidence of participants regarding economic factors impacting the creation, delivery, and consumption of eDiscovery products and services during the summer of 2019.

Business Confidence Questions (Required)

n=173 Respondents

1. Which of the following segments best describes your business in eDiscovery?
Part of the eDiscovery ecosystem where your organization resides.

  • Software and/or Services Provider – 31.8% (Up from Spring 2019)
  • Law Firm – 30.6% (Up from Spring 2019)
  • Corporation – 15.6% (Down from Spring 2019)
  • Consultancy – 12.7% (Down from Spring 2019)
  • Governmental Entity – 5.8% (Down from Spring 2019)
  • Other – 2.3% (Down from Spring 2019)
  • Media/Research Organization – 1.2% (Up from Spring 2019)

2. How would you rate the current general business conditions for eDiscovery in your segment?
Subjective feeling of business performance when compared with business expectations.

  • Good – 50.9% (Up from Spring 2019)
  • Normal – 41.6% (Down from Spring 2019)
  • Bad – 7.5% (Up from Spring 2019)

3. How do you think the business conditions will be in your segment six months from now?
Subjective feeling of business performance when compared with business expectations.

  • Better – 39.9% (Down from Spring 2019)
  • Same – 56.1% (Up from Spring 2019)
  • Worse – 4.0% (Up from Spring 2019)

4. How would you guess revenue in your segment of the eDiscovery ecosystem will be six months from now?
Revenue is income generated from eDiscovery-related business activities.

  • Higher – 41.6% (Down from Spring 2019)
  • Same – 51.4% (Up from Spring 2019)
  • Lower – 6.9% (Up from Spring 2019)

5. How would you guess profits in your segment of the eDiscovery ecosystem will be six months from now?
Profit is the amount of income remaining after accounting for all expenses, debts, additional revenue streams, and operating costs.

  • Higher – 31.2% (Down from Spring 2019)
  • Same – 57.2% (Up from Spring 2019)
  • Lower – 11.6% (Up from Spring 2019)

6. Of the six items presented below, what is the issue that you feel will most impact the business of eDiscovery over the next six months?
Challenges that may directly impact the business performance of your organization.

  • Budgetary Constraints – 27.2% (Up from Spring 2019)
  • Increasing Volumes of Data – 22.5% (Down from Spring 2019)
  • Increasing Types of Data – 20.8% (Up from Spring 2019)
  • Lack of Personnel – 12.7% (Up from Spring 2019)
  • Data Security – 11.6% (Down from Spring 2019)
  • Inadequate Technology – 5.2% (Down from Spring 2019)

7. In which geographical region do you primarily conduct eDiscovery-related business?
The location from which you are basing your business assessments.

  • North America (United States) – 90.2% (Down from Spring 2019)
  • Europe (UK) – 4.0% (Up from Spring 2019)
  • North America (Canada) – 2.3% (Down from Spring 2019)
  • Europe (Non-UK) – 1.7% (Up from Spring 2019)
  • Asia/Asia Pacific – 0.6% (Down from Spring 2019)
  • Middle East/Africa – 0.6% (Down from Spring 2019)
  • Central/South America – 0.6% (Up from Spring 2019)

8. What are best describes your primary function in the conduct of your organization’s eDiscovery-related business?

  • Legal/Litigation Support – 80.3% (Up from Spring 2019)
  • Business/Business Support (All Other Business Functions) – 16.2% (Up from Spring 2019)
  • IT/Product Development – 3.5% (Down from Spring 2019)

9. What are best describes your level of support in the conduct of your organization’s eDiscovery-related business?

  • Operational Management – 37.6% (Up from Spring 2019)
  • Tactical Execution – 35.3% (Down from Spring 2019)
  • Executive Leadership – 27.2% (Up from Spring 2019)

Business Metric Trajectory Questions (Optional)

10. How would you characterize the trajectory of your organization’s Days Sales Outstanding (DSO) during the last quarter?
n=156 Respondents

  • Increasing – 18.6% (Up from Spring 2019)
  • Unfluctuating – 23.7% (Up from Spring 2019)
  • Decreasing – 5.8% (Down from Spring 2019)
  • Do Not Know – 51.9% (Down from Spring 2019)

11. How would you characterize the trajectory of your organization’s Monthly Recurring Revenue (MRR) during the last quarter?
n=156 Respondents

  • Increasing – 32.7% (Increasing from Spring 2019)
  • Unfluctuating – 16.0% (Down from Spring 2019)
  • Decreasing – 7.7% (Up from Spring 2019)
  • Do Not Know – 43.6% (Up from Spring 2019)

12. Which of the following statements best describes the distribution of your organization’s revenue across your customer base during the last quarter?
n=156 Respondents

  • Increasing – 30.8% (Up from Spring 2019)
  • Unfluctuating – 22.4% (Up from Spring 2019)
  • Decreasing – 4.5% (Down from Spring 2019)
  • Do Not Know – 42.3% (Down from Spring 2019)

 

Past Survey Results

Source: ComplexDiscovery

ACEDS Community Newsletter for the Week of July 18

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July 18, 2019 | VOL. 8 | NO. 28

Daniel Gold, ACEDS Kansas City Chapter President: How Brewing Coffee is
Just Like E-Discovery
Read more

Ciara Byrne: Don’t Call Me a Lawyer—I Am a “Legal Engineer”
Read more

Clinton Sanko, Baker Donelson: Invitation to a New eDiscovery Manifesto
Read more

George Socha, BDO: Weekly Trends Report – 7/17/2019 Insights
Read more

ACEDS at Litigation Support Day ILTACON 2019 Annual Educational Conference
Learn more and register here

Sam Skolnik, Bloomberg Law: Silicon Valley Execs May Be Drawn to Legal
Tech as Revenues Rise
Read more

Joe Uchill, Axios: Hacking the Vulnerabilities in Privacy Laws
Read more

Rob Robinson, ComplexDiscovery: Current News? The New Gartner eDiscovery
Market Guide
Read more

Dan Lear, Procertas: Post-Hire Training and Development – Part 4 of 4
Read more

CEDS_Final_Image_R4

ACEDS Affiliate News

Daniel Pelc, Relativity: What It Takes to Win the Tour de France
(And E-Discovery)
Read more

Matthew Verga, XDD: Data on the Move – Mobile Devices Update, Part 1
Read more

LDM Global: eDiscovery Analytics Tools 101: Relationship Analysis and
Conceptual Analysis
Read more

Tom O’Connor via CloudNine: How Millennials are Changing Discovery,
Part Four
Read more

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ACEDS Chapter News and Events

We are excited to announce new ACEDS Chapters are being formed in Vancouver, BC,
Charleston, Toronto, Tokyo, Seattle, 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.

August 1 – DC – DC Harbor Cruise
Learn more and register here

August 7 – Ohio – Chapter Launch and Networking Social
Learn more and register here

August 7 – Chicago – Information Governance Q&A and Concurrent CEDS
Exam Study Group
Learn more and register here

August 21 – Chicago – Rail Stop Rendezvous: Arlington Heights *Save
the Date*
Learn more

September 12 – Dallas – Defensibility and Reasonableness in the EDRM
Learn more and register here

September 26 & 27 – Detroit – 4th Annual ACEDS Detroit Symposium –
Midwest eDiscovery Conference
Learn more and register here

November 6 – Chicago – Q&A and Concurrent CEDS Exam Study Group
*Save the Date*
Learn more

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