ACEDS Community Newsletter for the Week of August 29

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August 29, 2019 | VOL. 8 | NO. 34

LinkedIn- Labor Day

LegalNews: Upcoming ACEDS Symposium Explores ‘e-Discovery and Beyond’
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Clare Chalkley: The Rise of the eDiscovery Professional
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The Next Era of E-Discovery is Already Here
Read more

Rob Robinson, ComplexDiscovery: Predictive Coding Technologies and
Protocols: Fall 2019 Survey
Read more

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

Chris Dale Interviews James Macgregor of Consilio on the Expansion of
Consilio’s Business
Read more

Sam Skolnik, Bloomberg Law: Utah Supreme Court Quickly Endorses Bold
Legal Services Report (1)
Read more

Crispin Passmore: On Loosening Legal Regulation in Utah Contrasted to the UK
Read more

Artificial Lawyer: Rocket Lawyer To Formally Launch ‘Stablecoin’ For Smart
Contracts By Early 2020
Read more

George Socha: Weekly Trends Report – 8/28/2019 Insights
Read more

ACEDS at PREX – 50% Discount Code for our ACEDS Community
Learn more and register here

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ACEDS Affiliate News

LDM Global Expands its Legal Support Services into Ireland
Read more

Expanded Offering Brings Powerful iCONECT Solutions to Government Sector
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 29 – South Florida – End of Summer Social Hour
Learn more and register here

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 19 – New England – E-Discovery Education Day – Legal Technology
Education & Sunset Cruise
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 – 8/28/2019 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 Socha & Mary Mack, starting Wed. Sept. 11.

Relativity Fest Oct. 20-23 – Join us this fall at Relativity Fest in Chicago where I will be speaking on three sessions:

ELECTRONIC DISCOVERY

Musings on the future of legal technology conferences – In a three-part series hosted by eDiscovery Daily Blog (part 1, part 2, and part 3), Tom O’Connor offered his throughs on the future of legal technology conferences.

News from ILTACON –

CYBERSECURITY & DATA PRIVACY

CCPA –

New York –

GDPR –

LEGAL TECHNOLOGY & DIGITAL TRANSFORMATION

Non-lawyer ownership of law firms coming to Utah? – Bob Ambrogi reported that a task force appointed by the Utah Supreme Court to study innovative approaches to increasing access to and affordability of legal services has issued a report, Narrowing the Access-to-Justice Gap by Reimagining Regulation, in which it proposes a regulatory structure that would include non-lawyer investment in and ownership of business entities that provide legal services.

E-DISCOVERY CASE LAW

Recent e-discovery decisions

8/6/2019 – U.S. District Judge Jodi Jayne denied both plaintiffs’ and defendants’ motions for spoliation sanctions. Each side alleged that the other have spoliated evidence concerning an accident between two tractor/trailers. Defendant Swift failed to preserve and was unable to produce electronic control module data, mobile communications data, and electronic driver logs. Swift, thinking it had no reason to preserve the data because plaintiff Cox caused the accident, did not preserve the data the ECM and communications data, which were overwritten automatically before Swift received plaintiffs’ spoliation letter. The Court, finding that Swift did not act with the intent to deprive plaintiffs of the use of that data in the litigation, declined to impose sanctions. Swift did place a litigation hold on the driver logs but failed to retain 1.5 hours of logs. The Court found this failure to be negligent but ruled that the negligent failure was not sufficient to support the requested sanctions. Plaintiffs Adams and Cox failed to preserve and were unable to produce ECM data from Cox’s vehicle as well as Cox’s paper driver logs. Relying on an analysis akin to that applied with respect to Swift’s failure to preserve data, the Court ruled that there was insufficient evidence to show intentional acts aimed at depriving defendants of evidence. Cox v. Swift Transportation Co. of Arizona, LLC, No. 18-CV-117-CVE-JFJ (N.D. Okla. Aug. 6, 2019).

ANNOUNCEMENTS

Date Focus Organization Title
8/13/2019 ED CloudNine CloudNine Expands, Advancing Development for All Four eDiscovery Software Products and Growing Partnerships
8/15/2019 ED Compliance Compliance Moves to Flat Fee Solution for Transactional eDiscovery
8/15/2019 ED iCONECT iCONECT Integrates CAL with Adoption of Sentio Technology
8/19/2019 ED Reveal Data Reveal Data Launches 19th Worldwide Data Center
8/19/2019 ED FTI Consulting FTI Consulting Launches RelativityOne Data Migration Services
8/19/2019 ED DISCO DISCO Named a Leader for Worldwide Ediscovery SaaS by IDC MarketScape
8/19/2019 ED Oasis

CloudNine

Oasis and CloudNine Partner to Deliver CloudNine’s Popular eDiscovery Software in the Cloud
8/21/2019 ED iCONECT Expanded Offering Brings Powerful iCONECT Solutions to Government Sector

ADDITIONAL ARTICLES

Date Focus Publisher Title Authors
8/20/2019 ED Legaltech News ‘Too Practical’? Why Some Law Schools Don’t Offer E-Discovery Education Victoria Hudgins
8/21/2019 C/DP Greenberg Traurig Preparing for Nevada, California, and New York’s New Privacy Laws Gretchen A. Ramos and Cathy C. Shyong
8/21/2019 ED Avansic Why Artificial Intelligence Isn’t That Scary Gavin W. Manes
8/27/2019 IG IG World IG World Magazine, Summer 2019 Issue
8/28/2019 ED Relativity The Case for Custom Bilingual Glossaries Mark Ettinger (Linguistic Systems, Inc.)
8/28/2019 ED eDiscovery Daily Blog Court Denies Dueling Sanctions Motions from Both Plaintiffs and Defendants: 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

8/29/2018-9/20/2019 EVENTS

Start End TZ Type Location Host Title
8/29/19 1:00 PM 8/29/19 2:00 PM ET Webinar ACEDS Automate the Review Process and Increase Efficiency with Everlaw
9/2/2019 9/3/2019 AEST Conference Sydney, Australia CLOC CLOC2019 Sydney Institute
9/3/2019 9/5/2019 CT Conference Austin, TX Mitratech Interact 2019
9/3/19 12:00 PM 9/3/19 1:30 PM ET Webinar High Performance Counsel HPC #ThinkTank: State of the Legal Industry
9/4/19 12:00 PM 9/4/19 1:00 PM ET Webinar Manatt Preparing for the Open and Hidden Litigation Risks of the CCPA
9/5/19 8:00 AM 9/5/19 5:00 PM SAST Conference Johannesburg, South Africa ALM Corporate Counsel Forum Africa 2019
9/5/19 8:00 AM 9/5/19 5:15 PM BST Conference London, UK The Masters Conference Disclosure Is Always Changing When It Comes To Privacy, Cybersecurity, And Artificial Intelligence.
9/5/19 1:00 PM 9/5/19 2:00 PM ET Webinar ACEDS How Automating Early Case Assessment Saves Legal Teams Time & Money
9/5/19 2:00 PM ET Webinar ARMA How to Balance Information Access Demands and Risk Management Throughout the Information Lifecyle
9/9/19 8:45 AM 9/13/19 12:45 PM CEST Conference Trier, Germany ERA Summer Course on European Data Protection Law
9/10/19 1:00 PM 9/10/19 2:00 PM ET Webinar MER Smart Office 365 Strategies for Information Governance
9/10/19 1:00 PM 9/10/19 2:00 PM ET Webinar Lexbe How to Solve the Challenges of Reviewing Large Email Sets
9/10/19 2:00 PM ET Webinar DATAVERSITY Getting Started with Data Stewardship
9/10/19 2:00 PM 9/10/19 2:30 PM ET Podcast ACEDS Musings with Marc & Mary: Part One
9/10/19 2:00 PM 9/10/19 2:30 PM ET Webinar Redgrave The eDiscovery Playbook: Modernizing Your Litigation Response Plan
9/10/19 6:00 PM 9/10/19 8:00 PM CT Meeting Austin, TX ACEDS ACEDS Central Texas Chapter Networking Event
9/11/19 8:30 AM 9/11/19 6:00 PM ET Conference New York, NY The Cowen Group SOLID East, New York
9/11/19 11:00 AM 9/11/19 12:00 PM BST Webinar ACEDS Leveraging Automation to Manage Cross-Border Legal Holds
9/11/19 1:00 PM 9/11/19 2:00 PM ET Webinar ACEDS Monthly Insights with George Socha and Mary Mack
9/12/19 8:30 AM 9/13/19 2:30 PM CEST Conference Surrey, UK ALM Corporate Counsel Forum Europe
9/12/19 9:30 AM 9/12/19 3:00 PM ET Conference Columbus, OH ACEDS ACEDS Ohio Chapter: eDiscovery in Ohio – An Education Event for Litigators and Support Professionals
9/12/19 4:30 PM 9/12/19 6:30 PM CT Meeting Dallas, TX ACEDS ACEDS Dallas Chapter: Back to School – Lessons on the EDRM
9/15/19 9:00 AM 9/17/19 9:00 PM PT Conference Huntington Beach, CA Nuix Nuix User Exchange
9/17/19 8:00 AM 9/19/19 3:30 PM CT Conference Chicago, IL Zapproved PREX 2019:  Actionable Strategies for In-House Ediscovery
9/18/19 9/19/19 CEST Conference Munich, Germany IAPP IAPP Data Protection Intensive: Deutschland 2019
9/18/19 8:30 AM 9/19/19 1:00 PM ET Conference Montreal, Canada The Sedona Conference 2019 Midyear Meeting of Working Group 11
9/18/19 11:30 AM 9/18/19 12:15 PM ET Webinar Concept Searching Digital Waste and Dumpster Diving – Driving Down the Costs
9/18/19 1:00 PM 9/18/19 2:00 PM ET Webinar ACEDS A New Approach for a Faster Document Review Workflow
9/19/19 8:00 AM 9/19/19 5:15 PM BST Conference London, UK The Masters Conference Disclosure Is Always Changing When It Comes To Privacy, Cybersecurity, And Artificial Intelligence.
9/19/19 8:30 AM 9/19/19 4:30 PM BST Conference London, UK Hogan Lovells All-Day Workshop: Privacy and Cybersecurity KnowledgeShare
9/19/19 11:30 AM 9/19/19 9:00 PM ET Conference Boston, MA ACEDS ACEDS New England Chapter: E-Discovery Education Day – Legal Technology Education & Sunset Cruise
9/19/19 2:00 PM ET Webinar DATAVERSITY Stay Non-Invasive in Your Data Governance Approach

SEE PAST WEEKLY TREND REPORTS HERE

The Next Era of E-Discovery is Already Here

I recently read Rob Robinson‘s terrific post on the four stages of the eDiscovery market since 2002. Not surprisingly, I really liked Rob’s analysis. It should also not be surprising (since I have known Rob for so long and always enjoy reading his musings) that he has equally inspired me to opine myself on the evolution of our industry. With permission from Rob, here is my take on the evolution of the industry, and the four stages he discussed. In particular, I will argue that Rob’s fourth stage, the “Next Era of eDiscovery,” is already here.

The first era noted in the article was “The Concordance Era: 2002-2009.” I was fortunate enough to start working for LexisNexis in 2006 when the company rolled out its Litigation Services business unit, which showcased the acquisitions of LAW PreDiscovery, Concordance, and the CaseSoft suite of products was inked. I was in the first class of new hires. We were led by Kevin Stehr, and because of his leadership, the business unit at that time had a strong mission, vision, and purpose. LexisNexis was the first company to show how data could be threaded together from processing to production. The combination of great products for its time, an outstanding team of professionals, and the newly amended Federal Rules that reflected the emerging world of ESI, made it an amazing time in the industry. Nearly every firm we spoke with wanted “on premise” software with “thick clients” because hardly any law firm wanted their data to travel outside of their “four walls.” What struck me most was the need for eDiscovery education.

What I quickly realized was that the market was looking for a holistic solution, and not just a piece of software. When LexisNexis started putting various software tools and research solutions together in a package called “TotalLitigator (some of you may remember that well),” the market responded favorably. Why? Because there was a desire around 2009 to fuse research tools and litigation software in a way that would reduce a law firm’s overall costs. It was also around this time that two very notable things occurred: Westlaw followed suit with its acquisitions of LiveNote and CaseLogistix, and the first of law firm consultants began looking to drive down LexisNexis and Westlaw research and litigation software costs.

Around 2012, the pendulum in the market began transitioning from an immature market to one in which there was not only more data flowing in every matter, but most law firm leadership decided that the lawyers should focus more of their time and money on practicing law rather than trying to be an eDiscovery vendor. Instantiating a dedicated environment, either in-house or through a private data center, was (and still is) a very costly venture. It is not just the hardware, it’s not just the software, but it is having the right blend of IT and Litigation Support resources to help run an environment appropriately. Because of the influx of data volumes, there was a shift to replace in-house tools like Concordance, and ship everything to eDiscovery providers who would submit bills to the law firms and then have it passed through to their corporate clients.

The next phase in eDiscovery was really the rise of eDiscovery Managed Services.  I caught the wave at just the right time again and joined Iris Data Services as one of their eDiscovery Managed Services Sales Engineers. Few would argue with my point that Iris disrupted the entire eDiscovery vendor market with both IaaS and SaaS eDiscovery offerings. The very thought that a firm or corporate legal department could have its own multi-tenant, private, and secure SaaS based eDiscovery environment at a fixed monthly fee was unheard of. There were eDiscovery service provider CEO’s I knew of that would repeat the phrase, “Nobody ever got fired for hiring Iris.” Everyone in the market wanted to know what Iris was doing and how they were pulling off “managed services.” We grew from just about a dozen clients before I joined, to nearly 60 by the time we were acquired by Epiq.

Iris fundamentally shifted the thinking in the market of transactional services by creating a business and partnership approach to managing the influx of data, unpredictable vendor costs, variable costs associated with project manager hours, and utter lack of transparency surrounding costs. Combined with the education to law firms that they could ethically recover their costs in an eDiscovery Managed Services partnership for, it was literally a win-win for everyone: the firm, the corporate legal department, and Iris.

After Epiq acquired Iris (and then DTI acquired Epiq thereafter), the market started shifting yet again. This time, there was an utter proliferation of vendors saying they were “doing” managed services and could offer up something “just like” Iris. Everyone said they could do SaaS. Managed Services became – for the most part – just a price play. The third phase seemed like the expansion of other players in the market looking to one-up the market leader with snazzy user interfaces, promoting their flavor of “AI” and “advanced analytics,” and creative price plays. Many VC backed eDiscovery software companies have been going to market promising to be the “Dropbox for Lawyers.” This began around the same time that Relativity dropped the announcement of RelativityOne and combined, this was a seismic shift in a maturing market. Where once there was an utter reluctance towards “the cloud,” there was now acceptance brewing like my expensive coffee.

To me, the Next Era in eDiscovery is already here. It is focused in on the corporate legal department. Companies like OpenText, Microsoft, and the Big 4 are all finding ways to help corporate legal departments take back control over their most prized possession – data. E-Discovery is no longer a mystical and disparate part of the corporate data’s lifecycle, but rather an extension of the desire to manage enterprise information so that by the time litigation does ensue, there is no longer any question about where the data is, who has the data, and the types of data. Corporate legal departments want to know they can search, collect, actively crawl, preserve, process, and sift through information without having to jump through massive software hoops. The uptick in hiring amazing Legal Operations professionals inside of corporate legal departments has helped control corporate legal department costs, and most importantly, they’re seeking transparency in fees by both law firms and vendors alike. It is the reason why matter management software has seen such a massive increase. It is equally the reason why a new generation of review-lawyer firms are cropping up which are focused on vastly increasing efficiencies, and reducing the overall review cost with help of advanced technologies such as TAR 2.0 and Continuous Active (or Machine) Learning.

The market is sophisticated now. This Next Era in eDiscovery is about creating holistic and comprehensive solutions that are primarily focused on solving the real problems that corporations need to solve to be successful. The Enterprise Cloud providers such as AWS, Azure, and Google Cloud Platform are well accepted by most law firms and corporate legal teams. We have come an enormously long way since the days of Concordance and Summation. It is the reason why the Federal Rules were amended in 2015. The market is now in a place where the next LexisNexis/Iris Data Services will be companies that can solve corporate legal department’s challenges tied to data by leveraging not just an integrated software offering, but real professional services and consultants who, “know a thing or two because they’ve seen a thing or two,” as Farmer’s Insurance says. The real winners in this Next Era will be the ones who truly understand how to secure, manage, search, cull, process, and produce information.

Think of it this way: the problems that we need to solve for today, with the real influx of data volumes that exist (not the artificially promoted scare tactics by sales and marketing teams) are how we handle much bigger issues such as:

  • do we know what data types each custodian has;
  • do we know where each custodian is storing data;
  • do we know how to collect all the various types of data;
  • do we know how to appropriately hold and preserve this data;
  • do we have an eDiscovery team that includes IT, Litigation Support, paralegals, attorneys, C-Suite executives – and Professional Services firms that offer eDiscovery software and services – that are meeting to ensure that there are mapped out procedures, protocols, and workflows around the data;
  • are we mapping out the data to reduce costs in crawling the multiple data sources per custodian; and
  • are we creating a compressive solution that uses professional services and software technology to manage, secure, search, crawl, and later process all of the information in a way that creates a holistic approach to manage corporate data.

The Next Era for eDiscovery is not another gimmicky eDiscovery software provider with slick marketing jargon, but rather it is time for corporations to take the lead on controlling, storing, and searching data and mostly securing the enterprise data. We are now in the Information Era, and the race is on to see what company will be the market leader in successfully partnering with corporations to create meaningful workflows and processes in a way that will help them exceed their critical success factors.

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

7/31/2019: Supreme Court of Minnesota: Data Collection Establishes Personal Jurisdiction
Supreme Court of Minnesota finds data collection by Ford helps establish personal jurisdiction in an air bag product liability case. Bandemer v. Ford Motor Co., No. A17-1182, 2019 Minn. LEXIS 427 (Minn. July 31, 2019)

8/1/2019: Printliminator
Printliminator is a bookmarklet you can use to remove areas of a web page to be excluded from a print version.

8/2/2019: 10th Cir.: Screenshot Displaying Metadata Not Authenticated
A screenshot showing metadata on a score report sworn to as being true and correct by a pro se plaintiff was held not be authenticated.

8/3/2019: Clustering Error in Relativity
In order for a clustering operation to be run, an analytics index must have queries enabled.

8/4/2019: S.D.N.Y.: Cryptocurrency Purchases Not Necessarily Cash Transactions
“. . . Plaintiffs plausibly allege, cryptocurrency does not imbue its holder with a legal right to any government-issued currency, acquisitions of cryptocurrency could not be classified as a cash-like transaction.”

8/5/2019: More on Elusion Testing in Relativity
After viewing the results of an Elusion test in Relativity, a choice must be made to either complete the project or resume the project.  If the results are not acceptable the model will be unlocked and documents coded after the elusion test was run will be submitted to the model.

8/6/2019: Double-checking Responsive Coding in Relativity with Cluster Visualization
You can visualize clusters and apply a responsiveness field as a condition to help find inconsistencies in document coding.

8/7/2019: Double-checking Responsive Coding in Relativity with Cluster Visualization – Part 2
View nearby clusters in a cluster visualization, with a responsive field condition set, and investigate dark shaded circles on the outer perimeter to find docs coded incorrectly.

8/8/2019:  FedRAMP Guidelines for Cloud Service Providers
CDS is one of the few e-discovery vendors to be FedRAMP authorized.

8/9/2019: Document Review and Relativity Analytics

  1. Clustering to help with time sensitive document reviews.
  2. Categorization to find hot documents in opposing productions.
  3. Find Similar Documents to locate priv docs
  4. Keyword expansion to find unknown relevant terms

8/10/2019: COMP command to compare files
You can use the Windows command COMP to compare two different files.

8/11/2019: How to Use Clustering to Expedite Document Review
Create batch sets based on clusters.

8/12/2019: Free Upgrade to Windows 10
Download the media creation tool to install an upgrade from Windows 10 from Windows 7 or 8.

8/13/2019: VBA code to copy unique values to separate worksheets
VBA code you can use to create a new worksheet in Excel for each unique value in the first column of the first worksheet.

8/14/2019: Inking and Typing Personalization in Windows 10
Words added to the spelling dictionary in Windows 10 are saved in a file in the AppData folder.

8/15/2019: Utility to Copy Highlighted Text to Comments
When highlighted text is added to comments in Adobe Acrobat it can be exported.

8/16/2019: Rule 37(b) Sanctions Issued for Fishing Expeditions at Depositions in Defamation Suit Against Cyber Security Provider
Magistrate Judge Maureen Kelly of the W.D. Pa. threatened to terminate the pro hac vice admission of an attorney for abusive litigation practices.

8/17/2019: Using VBA Code to Export Highlighted Text of a Particular Color
The code changes the color of the letters of the highlighted text, which can then be selected using the Find tool.

8/18/2019: Standard Form 86 and PII
SF-86 is used to collect background information on employees considered for positions which concern national security.

8/19/2019: Demonstration of How to Find Redactions in PDF Files Using the Adobe Acrobat Preflight Tool
You can either browse the internal structure of a PDF or analyze page objections to find where redactions have been made in a PDF. https://youtu.be/tLNKVNYm6IE

8/20/2019: PDF Vole
Free utility to review the internal structure of a PDF.

8/21/2019: Formula to autocomplete entry matching two values in reference range

Formula to autocomplete entry matching two values in reference range

8/22/2019: Excel formula to find last column with data
Use the LOOKUP formula to find the first cell in a range on a particular row that does not have data entered.   It’s necessary to enter the both the first column and the last possible column that may contain data – in this example column E.   =LOOKUP(2,1/ (B7:E7<>””),ROW(A:A))

8/23/2019: Data Deduplication on Windows Servers
The deduplication process on Windows servers works by breaking files into chunks and identifying which of those chunks are unique. In optimization original ‘file streams’ are replaced with reparse points that indicate which file chunks should be used.

8/24/2019: Python fnmatch script to find files of a particular type

Python fnmatch script to find files of a particular type

8/25/2019: Acrobat Java Script to Find Pages Marked for Redaction
The script unfortunately only gives a total page count.

8/26/2019: California Law on Data Breaches
California law requires businesses and states agencies to notify individuals when their unencrypted data was in fact acquired by an unauthorized person, or if it is reasonable to believe that such a person has accessed the data.

8/27/2019: Access to Madoff Database Denied
“Trustee should not have to bear the cost associated with the Defendants’ ever changing and ever growing discovery requests to review 30 million electronic documents in the BLMIS Database or 13,000 boxes of hard copy documents without some evidence to show that BLMIS made some trades for the benefit of the IA customers before 1992.”  Sec. Investor Prot. Corp. v. Bernard L. Madoff Inv. Secs. LLC, Adv. Pro. No. 08-01789 (SMB), 2019 Bankr. LEXIS 2701 at *34-35 (Bankr. S.D.N.Y. Aug. 26, 2019)

ACEDS Community Newsletter for the Week of August 23

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August 23, 2019 | VOL. 8 | NO. 33

Amy Juers Interviewed by Mary Mack Re: Stepping Down from WiE and Edge
Going Global
Watch now

Rob Robinson, ComplexDiscovery: Four Eras of eDiscovery? One Approach
to Framing Market Growth
Read more

Kaylee Walstad: Live Streams from ILTACON 2019 Lit Support Day
Watch now

Bob Ambrogi, LawSites: #ILTACON19: Post-Mortem Notes, Musings and
Observations
Read more

Lee Swales: Electronic Evidence – a Necessity in Almost Every Legal Dispute
Read more

Robert Chesney and Danielle Keats Citron: Deep Fakes – A Looming Challenge
for Privacy, Democracy, and National Security
Read more

The Sedona Conference’s Prolific August
Read more

White House Directive on Electronic Records
Read more

ACEDS at PREX – 50% Discount Code for our ACEDS Community
Learn more and register here

George Socha’s Weekly Trends on Vacation: You couldn’t have read EVERY post
Read more

ILTACON Prize Winners _ August 2019

ACEDS Affiliate News

Mike Hamilton, Exterro: Text Messages MUST Be Accounted for in E-Discovery
Read more

Casey Sullivan, Logikcull: The End of Hosting Fees: Why Logikcull Is Getting Rid
of Per-GB Hosting
Read more

Doug Austin, CloudNine: eDiscovery Buyers Guide Where You Can Actually See
Videos of the Products
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 29 – South Florida – End of Summer Social Hour
Learn more and register here

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 19 – New England – E-Discovery Education Day – Legal Technology
Education & Sunset Cruise
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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ACEDS Community Newsletter for the Week of August 15

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August 15, 2019 | VOL. 8 | NO. 32

Daniel Gold, ACEDS Kansas City Chapter President: Ethics Violations and the Rise
of eDiscovery Technology
Read more

Bob Ambrogi, LawSites: The Most Effective Tech Tools for Lawyers?
Read more

George Socha, BDO: Weekly Trends Report – 8/13/2019 Insights
Read more

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

ACEDS ILTA Cocktail Reception
Learn more and register here

Masters Conference Lawyer Invitational at ILTA
Read more

Hamilton, UF: Levin College of Law Announces Searchable Florida E-Discovery
Case Law Database
Read more

ACEDS at PREX – 50% Discount Code for our ACEDS Community
Learn more and register here

ILTACON Email Promo_ACEDS V2

ACEDS Affiliate News

Compliance Moves to Flat Fee Solution for Transactional eDiscovery
Read more

Helen Geib, QDiscovery, an XDD Company: Seven Steps to Build a Highly
Collaborative Team
Read more

Matthew Verga, XDD: The Sedona Conference on BYOD – Mobile Devices Update,
Part 5
Read more

Veritone: All You Need to Know About New York State’s New E-Discovery Law
Read more

Doug Austin, CloudNine: ILTACON 2019 Preview Edition: eDiscovery Trends
Read more

Relativity Stellar Women in e-Discovery: Joanne Chua-Robertson [Podcast]
Read more

Adam Kuhn, OpenText: LegalTech Is No Longer Optional
Read more

Sonia Cuff, Microsoft: “Introverts Are Shy” and Other Myths
Read more

Daniel Diana, Logikcull: The “State” of Public Records Law: A 50 State Survey
Read more

Jeffrey Wolff, ZyLAB: E-Discovery Podcast Interview on The Paralegal Voice
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.

August 15 – Los Angeles – Everyday Analytics – Choosing the Right Tool to
Accelerate Traditional Review
Learn more and register here

August 29 – South Florida – End of Summer Social Hour
Learn more and register here

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 19 – New England – E-Discovery Education Day – Legal Technology
Education & Sunset Cruise
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 – 8/13/2019 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

ABOVE THE FOLD

Join Mary Mack and me for a new ACEDS webinar series, Monthly Insights with George & Mary, starting Wed. Sept. 11.

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

Subpoenaing wearable technology data – In an ABA article, Meghan A. Rigney of Wiedner & McAuliffe offered advice on subpoenaing wearable technology data, in particular FitBit and Apple data.

CYBERSECURITY & DATA PRIVACY

Cyber insurance coverage – Sharon Nelson of Sensei Enterprises noted that Lloyd’s of London has called for insurance policies to be explicit about cyber coverage. In Market Bulletin Ref. Y5258, Llyod’s stated that “Lloyd’s view is that it is in the best interests of customers, brokers and syndicates for all policies to be clear on whether coverage is provided for losses caused by a cyber event. This clarity should be provided by either excluding coverage or by providing affirmative coverage in the (re)insurance policy.” (Emphasis in original.)

NAIC Data Security Model Law – Joseph J. Lazzarotti of Jackson Lewis discussed the National Association of Insurance Commissioners’ Insurance Data Security Model Law and its implications. Adopted by the NAIC in 2017, the Model Law in intended to provide a benchmark for any cybersecurity program.

Delaware insurance data security law – As reported by Riker Danzig, Delaware’s governor has signed the Insurance Data Security Act (House Bill 174), which is based on the NAIC Model Law.

New Hampshire insurance data security law – As reported in a Hunton Andrews Kurth post, New Hampshire’s governor has signed that state’s Insurance Data Security Law (SC 194). The law, effective Jan 1, 2020, requires insurers licensed in the state to put into place data security programs and report cybersecurity events.

CCPA –

GDPR –

Chinese draft guidelines on cross-border transfer of PI – Myles Seto and Sean Wang of Deacons reported that the Cyberspace Administration of China released for public comment a draft version of Measures for Security Assessment of Cross-border Transfer of Personal Information.

Egypt draft data protection law – Youssef Sallam of Al Tamimi & Company wrote that the Egyptian Cabinet of Ministers recently approved a draft data protection law, akin to the GDPR, which is being reviewed by the Parliament of Egypt.

LEGAL TECHNOLOGY & DIGITAL TRANSFORMATION

The current state of play in legal innovation – Jae Um of Baker McKenzie prepared a piece, published in Legal Evolution, examining the current state of play in legal innovative. Returning to a post she put up a year ago, Jae Um looked back at legal innovation over the past decade and finds hope for the future, especially if we are able to be a bit more patient and take a longer view.

E-DISCOVERY CASE LAW

Recent e-discovery decisions

7/10/2019 – Appellate Judges Smith, McKee and Fisher affirmed in part and reversed in part a District Court denial of a motion for default judgment with respect to deleted and unrecoverable emails and remanded the case for a new trial. The appellate court determined that the district court appropriately (1) concluded that the appellee acted in bad faith when it destroyed emails, (2) concluded that spoliation prejudiced the appellant, (3) and opted for the lesser sanction of a permissive adverse inference instruction instead of a default judgment. The appellate court found, however, that the district court erred in excluding expert testimony regarding the appellee’s spoliation, and error that could have affected the outcome of the case as it deprived the jury of testimony that would have been highly probative of whether the jury should adopt the permissive adverse inference. GN Netcom v. Plantronics, No. 18-1287 (3rd Cir. July 10, 2019).

7/11/2019 – U.S. Magistrate Judge Stephan Vidmar denied plaintiffs’ motion for spoliation sanctions for defendants’ failure to preserve and produce photos and excluded testimony or argument at trial concerning the photos. A fire allegedly destroyed 2,647 tons of hay, leaving only smoldering embers. Defendants’ farm manager did not see the fire but claimed to have taken photos, stored only on his cell phone, of the embers. Defendants never produced the photos to plaintiffs and by the time plaintiffs sued apparently the farm manager no longer possessed the photos; defendants’ first notice that plaintiffs intended to sue was the suit itself. Plaintiffs moved for sanctions base on the loss or destruction of the photos, arguing that defendants should have been put on notice of litigation by the fire itself and should have preserved the photos. The Court first determined that because the photos were ESI, FRCP 37(e) foreclosed reliance on the Court’s inherent authority to impose spoliation sanctions. The Court next ruled discovery of the alleged fire was not by itself sufficient to put defendants on notice and hence no duty to preserve the photos had been triggered. The Court then ruled that plaintiffs failed to show that defendants intentionally deprived them of the photos. Finally, the Court ruled that ruled that neither defendants nor plaintiffs would be allowed to mention the photos at trial as the probative value of testimony concerning them is low and potential prejudice powerful. Philmar Dairy, LLC v. Armstrong Farms, No. 18-cv-0530SMV/KRS (D.N.M. July 11, 2019).

ANNOUNCEMENTS

Date Focus Organization Title
5/3/2019 ED UF Law UF Law Launches Florida E-Discovery Case Law Database
8/8/2019 ED iCONECT iCONECT Secures Strategic Capital Funding Helping Lawyers tell ‘Their Winning Story’

ADDITIONAL ARTICLES

Date Focus Publisher Title Authors
8/8/2019 ED

C/DP

Legaltech News With New Funding, iCONECT Looks to Expand Into Data Privacy Compliance Victoria Hudgins
8/9/2019 ED Above the Law Legal Tech: Capital Infusion At Software Company iCONECT Means… Mike Quartararo (eDPM Advisory Services)
8/9/2019 LT/DT Legaltech News How Law Schools’ Online Classes Are Supporting Rise of ‘Virtual Law’ Frank Ready
8/9/2019 ED LinkedIn Can Keywords Still Be Used as a Culling Tool in eDiscovery? Davide Migali (LDM Global)
8/9/2019 C/DP Proskauer Personal Email Management Service Settles FTC Charges over Allegedly Deceptive Statements to Consumers over Its Access and Use of Subscribers’ Email Accounts Jeffrey Neuburger
8/9/2019 C/DP Proskauer Finding Article III Standing, Ninth Circuit Declines to Do an About-Face in Illinois Biometric Privacy Class Action against Facebook Jeffrey Neuburger
8/12/2019 ED Exterro Case Law Alert: Plaintiffs’ Motion for E-Discovery Sanction Goes Up in Smoke Mike Hamilton
8/13/2019 ED LawSites In Advance of #ILTACON19, CloudNine Rolls Out Upgrades Of Its E-Discovery Technology Bob Ambrogi

UPCOMING EVENTS

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

8/14/2018-9/13/2019 EVENTS

Start End TZ Type Location Host Title
8/14/19 1:00 PM 8/14/19 2:00 PM ET Webinar ACEDS Fight PII Challenges with a One-Two Punch: H5 Matter Analytics + Milyli’s Blackout
8/14/19 1:00 PM ET Webinar Exterro The Results are In…Top E-Discovery & Records Request Challenges for Government
8/15/19 12:00 PM CT Meeting Minneapolis, MN MALSP August 2019 MALSP Meeting – Understanding eDiscovery in the Cloud
8/15/19 8:00 AM ET Webinar Nuix Say Hello to Nuix Discover
8/15/19 1:00 PM 8/15/19 2:00 PM ET Webinar ACEDS Benchmarking Discovery Cost Recovery: Highlights From Logikcull’s 2019 Billing Survey
8/15/19 1:00 PM ET Webinar ABA What Is Getting Lawyers Into Trouble?: Trends in Disciplinary and Malpractice Actions
8/15/19 2:00 PM 8/15/19 3:00 PM ET Webinar Lexbe Integrated Foreign Language Document Review
8/15/19 2:00 PM ET Webinar DATAVERSITY Data Governance versus Information Governance
8/18/19 8:00 AM 8/18/19 5:30 PM 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
8/21/19 11:00 AM ET Webinar EDRM In-Place ECA Clearly Understand Your E-Discovery Burden Before Collecting Data
8/21/19 11:00 AM ET Webinar Cellebrite Digging for Digital Evidence in Human Trafficking
8/22/19 2:00 PM ET Webinar DATAVERSITY Data Quality Best Practices
8/27/19 1:00 PM 8/27/19 1:30 PM ET Webinar CCBJ Brainspace: The Industry’s Most Intuitive Investigative Analytics Platform
8/27/19 1:00 PM 8/27/19 2:00 PM ET Webinar MER It Takes More Than a Tool: 3 Critical, Yet Simple Practices for Successful Content Analysis and Cleanup
8/28/19 11:00 AM ET Webinar Cellebrite Digital Data: New Innovations in the use of Video as an Evidence Source
8/28/19 1:00 PM 8/28/19 2:00 PM ET Webinar ACEDS ESI in Criminal Investigations and Proceedings: An Overview
8/28/19 1:00 PM ET Webinar XDD A Supercomputer in Every Pocket: Mobile Devices in eDiscovery, 2019 Edition
9/2/2019 9/3/2019 AEST Conference Sydney, Australia CLOC CLOC2019 Sydney Institute
9/3/2019 9/5/2019 CT Conference Austin, TX Mitratech Interact 2019
9/3/19 12:00 PM 9/3/19 1:30 PM ET Webinar High Performance Counsel HPC #ThinkTank: State of the Legal Industry
9/4/19 12:00 PM 9/4/19 1:00 PM ET Webinar Manatt Preparing for the Open and Hidden Litigation Risks of the CCPA
9/5/19 8:00 AM 9/5/19 5:00 PM SAST Conference Johannesburg, South Africa ALM Corporate Counsel Forum Africa 2019
9/5/19 8:00 AM 9/5/19 5:15 PM BST Conference London, UK The Masters Conference Disclosure Is Always Changing When It Comes To Privacy, Cybersecurity, And Artificial Intelligence.
9/5/19 1:00 PM 9/5/19 2:00 PM ET Webinar ACEDS How Automating Early Case Assessment Saves Legal Teams Time & Money
9/9/19 8:45 AM 9/13/19 12:45 PM CEST Conference Trier, Germany ERA Summer Course on European Data Protection Law
9/10/19 1:00 PM 9/10/19 2:00 PM ET Webinar MER Smart Office 365 Strategies for Information Governance
9/10/19 2:00 PM ET Webinar DATAVERSITY Getting Started with Data Stewardship
9/11/19 8:30 AM 9/11/19 6:00 PM ET Conference New York, NY The Cowen Group SOLID East, New York
9/12/19 8:30 AM 9/13/19 2:30 PM CEST Conference Surrey, UK ALM Corporate Counsel Forum Europe

SEE PAST WEEKLY TREND REPORTS

Pile of Books

Ethics Violations and the Rise of eDiscovery Technology

A Federal Court judge recently told me that when he asked the lawyer about the ESI (Electronically Stored Information) in his matter, the lawyer replied there wasn’t any. When the judge asked if there were going to be any e-mails that he’d be producing, the lawyer said, “yes, but that’s not ESI.”

Given the readily available technology that greatly increases security of client data, eDiscovery review technology that substantially reduces overall review time and costs by surfacing up more relevant data faster, and the general availability of free eDiscovery education and resources, the question becomes whether a lawyer may be brought up on ethics violations or potentially face malpractice charges for intentionally or negligently (by virtue of her ignorance) failing to employ the appropriate technology?

I had the opportunity to sit down over a cup of coffee with Dennis Rendleman, Ethics Counsel at the American Bar Association, Center for Professional Responsibility, in Chicago one cold afternoon this past winter. Besides having a wonderful conversation with Dennis on a broad range of issues, I tested my hypothesis out on Dennis. Ultimately, he said that if I add “maybe” and “could be” to my hypothesis, rather than “shall” or “will,” the answer “might be,” “potentially,” and “possibly,” under the right set of facts – yes!

Of course, this answer reminds me of a quote by Jeremy Bentham, the famed English philosopher, who once said: “Lawyers are the only persons in whom ignorance of the law is not punished.” And yet, if we hold litigants to the maxim of ignorantia juris non excusat, shouldn’t we, as lawyers, apply it to ourselves as well when it comes to cybersecurity and eDiscovery technology?

To answer this question, I always like to start with Rule 1.1 of the ABA Model Rules of Professional Responsibility. It states:

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

But then the question becomes how do you define competence as it relates to relevant technology? To answer this, Comment 8 is our guiding light. It states:

“To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject” (emphasis added).

In other words, irrespective of the expertise that may be required in a matter, if the lawyer is not keeping up with the “benefits and risks” associated with “relevant technology” in eDiscovery, then she may not be considered competent in that particular matter. The addition of these highly probative phrases were added in 2012. Interestingly enough, since 2012, 36 states in the country have modified their own state’s ethics rules to include the same or substantially same verbiage.

Still, when does an attorney become subject to a potential ethics violation for not understanding the “benefits and risks associations with relevant technology?” If we dig deeper, would any of the following examples potentially subject a lawyer to an ethics violation?

    • What if an attorney chooses to work out of an overpriced coffee shop with free WIFI? Could we say that her failure to use a VPN and a privacy screen on her laptop potentially exposed her client’s data because she didn’t understand the risks of using free WIFI and the equal risks “shoulder surfers” in the cafe? There’s a fascinating discussion on this topic that can be found in California’s State Ethics Board wrote Ethics Opinion 2010-179.
    • What about the lawyer who said they use the same Dropbox account to store their family photos and personal documents as his Motion for Summary Judgment and client data? The lawyer didn’t see any information governance or security issues, or even understand why attorney-client privilege may have been potentially pierced if his personal Dropbox account were to be hacked. (There’s a wonderful conversation to be had here that starts with a deeper understanding of Rule 6(c).[i])
    • Could a reasonable person not argue that a lawyer negligently or intentionally overbilled her client by failing to understand (and therefore leverage) newer eDiscovery technology that may reduce the overall review time and substantially cut costs by finding the most relevant documents faster?
    • What about an attorney who says they specifically chose not to digitize old asbestos documents because by doing so, it would make the data more easily accessible and text searchable to the other side?

Given the advancements in technology as a result of the sheer volume of data that is being created today, it is imperative that every lawyer either understand the basics of cybsersecurity and eDiscovery technology or work with another lawyer to ensure compliance within the Federal Rules of Civil Procedure (FRCP) and the Federal Rules of Evidence (FRE) (or her particular states’ analogous laws). Additionally, she can become knowledgeable through receiving the input and advice of her Litigation Support staff, CISO or IT Director, eDiscovery paralegal, and/or their trusted service providers to make the appropriate decisions from there.

Deliberately choosing to put one’s head in the sand is not a tactic that pays off in the long run. Courts have been increasingly chastising lawyers for not paying attention to “relevant technology.” In fact, a whole post can be written on every judge throughout the country who has lambasted (and sanctioned) lawyers in case law for not understanding eDiscovery. Why chance it? Take advantage of free education through ACEDS, attend free webinars, partner with your litigation support team, and your trusted service provider to ensure that ignorantia juris non excusat doesn’t translate into a potential ethics violation – or possibly worse.

 

[i] See Rule 1.6(c) that requires lawyers to “make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” Under Comment 17, it says that a “lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision.” Comment 18 says lawyers must take “reasonable precautions to prevent the information from coming into the hands of unintended recipients.” Comment 19 really sums it all up: a “lawyer must make reasonable measures to ensure the inadvertent disclosure.” Jill Rhodes, the chief information security officer for Trustmark Companies said once that the “biggest factor that makes law firms of all sizes vulnerable to a cyber-attack is insider ignorance. All it takes is to step away from your computer without locking it or working on sensitive client information while using the free WIFI at your local coffee ship where the system is “very exposed and makes law firm data vulnerable.” https://www.law360.com/articles/464016/big-law-firms-are-most-vulnerable-to-hackers-aba-panel

ACEDS Community Newsletter for the Week of August 8

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August 8, 2019 | VOL. 8 | NO. 31

David Horrigan, Relativity: ILTACON Litigation Support Day
Read more

Daniel Gold, ACEDS Kansas City Chapter President: Here’s How You Want to Be
Governing Enterprise Information
Read more

Helen Geib, QDiscovery, an XDD Company: Federal Rules of Procedure on
Production Format: Timing and Consequences
Read more

George Socha, BDO: Weekly Trends Report – 8/7/2019 Insights
Read more

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

ACEDS ILTA Cocktail Reception
Learn more and register here

Masters Conference Lawyer Invitational at ILTA
Read more

Rob Robinson, ComplexDiscovery: Guidehouse to Acquire Navigant Consulting,
Inc. for $1.1 Billion
Read more

The American Bar Association: New ABA Website Details Regulatory Landscape
for Delivery of Legal Service
Read more

Mike Quartararo, eDPM Advisory Services: Why You Need The Master’s
Conference In Your Life
Read more

ILTACON Email Promo_ACEDS V2

ACEDS Affiliate News

Helen Geib, QDiscovery, an XDD Company: Presenting the Final Stage of
eDiscovery: Presentation
Read more

Matthew Verga, XDD: A Few More Recent Cases – Mobile Devices Update, Part 3
Read more

Exterro: Market Guide for E-Discovery Solutions – A New Gartner Report
Read more

AccessData Expert on the Way Forward for Digital Forensics by Jess Phillips,
Intelligent CISO
Read more

Compliance Expands Partnership with Relativity and Launches into the Cloud
with New RelativityOne Commitment
Read more

Doug Austin, CloudNine: In Search of Cases Where Production of Databases
Has Been Ordered
Read more

Tom O’Connor and Rachi Messing, Microsoft: Office 365 – Part 9 – Summary
and Conclusion
Watch here

iCONECT Secures Strategic Capital Funding Helping Lawyers tell ‘Their
Winning Story’
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 15 – Los Angeles – Everyday Analytics – Choosing the Right Tool to
Accelerate Traditional Review
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 19 – New England – E-Discovery Education Day – Legal Technology
Education & Sunset Cruise
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 – 8/7/2019 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. Sept. 11.

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

On using supervised machine learning – Rasmus Mandøe Jensen and Christian Scott Uhlig of Pelsner examined the Danish Financial Supervisory Authority’s recently published guidelines on the use of supervised machine learning. Although the guidelines are meant for financial companies, the Pelsner attorneys’ analysis of them offers useful insights applicable to the use of TAR in litigation.

7-part e-discovery blog series – Brad Harris of Zapproved published a seven-part series on e-discovery, Driving Down the Cost of Ediscovery:

On the challenges of e-discovery training – Frank Ready of Corporate Counsel wrote about the challenges associated with training attorneys and staff about e-discovery, whether in detail or at a high level. For the article, Frank drew on discussions with Debbie Reynolds of Eimer Stahl, David Hasman of Bricker & Eckler, Joseph Tate of Cozen O’Connor, and me.

CYBERSECURITY & DATA PRIVACY

Security risks accompanying collaboration tools – Richard Walters of CensorNet warned that as law firms adopt digital collaborate tools to improve communications with their clients – as most of the top 100 law firms have done, according to a recent PwC report – the law firms should pay close attention to security risks attendant with the use of those tools.

Adding a Facebook “Like” button to a website might make you a joint controller – Daniel Felz of Alston & Bird discussed the European Court of Justice’s decision in FashionID GmbH & Co. KG v. Verbraucherzentrale NRW, in which the ECJ found that websites integrating Facebook plugins are jointly responsible for the data collected by those plugins and sent to Facebook.

CCPA –

Data privacy and security legislation in states other than California – Kendall C. Burman, Rajesh De, Mickey Leibner, Lei Shen, Joshua M. Silverstein, David A. Simon, Jeffrey P. Taft, Howard W. Waltzman, and Lisa V. Zivkovic from Mayer Brown published a piece about efforts to pass stricter data privacy and security legislation in Nevada (SB 220), New York (the SHIELD Act, SB 5575; SB 5642; and SB S224), Maine (SP 275), North Dakota, Massachusetts (S.120), New Jersey (SB 2834), and Pennsylvania (HB 1049).

State “omnibus” privacy law comparison sheet – Baker McKenzie has published a comparison chart of new or proposed state privacy laws. The chart covers bills from California’s CCPA (SB 1121) and laws from Maine (LD 945 / SP 275), Nevada (SB 220), and Pennsylvania (HB 1049).

New York strengthened data breach protections for consumers – New York’s governor signed two bills meant to strengthen protections for consumers whose private information gets compromised in data breaches, reported the Buckley law firm: the Stop Hacks and Improve Electronic Data Security Act (SHIELD Act) (A5635B); and A2374, which requires consumer credit reporting agencies to offer identify theft prevention and mitigation services in the case of breaches of the agencies’ systems.

France: CNIL updated guidelines for cookies and other trackers – Olivier Haas, Evgenia Nosareva, and Hatziri Minaudier of Jones Day reported that CNIL, the French data protection authority, has released new guidelines on the use of cookies and other tracking technologies. Except in limited circumstances, trackers may not be deployed on smartphones, computers, and any other connected devices and when they are then clear information relating to the tracker’s purpose and implementation should be provided to the user.

Germany: Internal recorded statements and notes are personal data that must be disclosed – Odia Kagan of Fox Rothschild reported that on July 26 the Higher Regional Court of Cologne Germany held that internal recorded statements, conversation notes or telephone notes constitute personal data and copies of them must be disclosed in response to data access requests.

Germany: HDPC concerned that Google voice assistant program violated GDPR – Theodore F. Claypoole and Dominic Dhil Panakal of Womble Bond Dickinson reported that the Hamburg Data Protection Commission (HDPC) has opened an administrative procedure to prohibit Google from carrying out evaluations of their voice assistant program by employees and third parties for a period of three months. They note that the HDPC believes temporary halting of Google’s voice recording evaluation process is necessary to allow sufficient time to determine whether there is effective protection of the rights and freedoms of those whose private conversations are being listening to, documented, and evaluated by third parties.

UK: GDPR certification is coming – Lisa Rix of Littler reported that later this year companies that show compliance with a particular “certification schemes” will be issued “certification” certificates, seals, or mark the companies will be able to display to demonstrate compliance. Note the quotations marks and future tense.

UK: Comments sought on ICO draft data sharing code of practice – The UK’s Information Commissioner’s Office is seeking input on the draft update to its data sharing code of practice, first published in 2011. The ICO will be taking public feedback, via survey or email, until Sept 9.

LEGAL TECHNOLOGY & DIGITAL TRANSFORMATION

Guidance for validation of AI-based algorithms – Nathaniel M. Glasser, Adam S. Forman, and Matthew Savage Aibel of Epstein Becker & Green pointed out two sets of resources for employers using or contemplating using artificial intelligence algorithms in their employee selection processes: the Uniform Guidelines On Employee Selection Procedures, in particular Section 14: Technical standards for validity studies; and the recently updated Frequently Asked Questions from the U.S. Department of Labor’s Office of Federal Contract Compliance Programs, especially its Validation of Employee Selection Procedures FAQs.

Four big legal tech themes – Richard Tromans of Artificial Lawyer has pulled together what he sees as the four key themes that help make sense of what is happening in the realm of legal tech and law firm innovation: (1) Consolidation and Platformization; (2) Continued Proliferation of Legal Tech Companies; (3) Incubator/Accelerator Growth; and (4) More Than Law – Law Firms as Tech Producers.

Law firm project management – ILTA published the results of its 2019 project management survey, which looks at law firms. ILTA last conducted this survey in 2015 and, according to the survey’s summary, the results do not appear to differ significantly.

Law firm legal technology sanity check – Bob Ambrogi of LawSite, analyzing the results of the 2019 Aderant Business of Law and Legal Technology Survey, notes that the most effective tech tools are not the ones sucking up all the oxygen in the room – AI or blockchain, for example – but rather far more prosaic technologies such as document management and time and billing.

E-DISCOVERY CASE LAW

Recent e-discovery decisions

7/16/2019 – U.S. District Judge Aida M Delgado-Colon denied defendant’s motion to dismiss but imposed as sanction an adverse inference. Defendant requested information about plaintiff’s social media accounts. Plaintiff responded that she once had an account but it was closed and she did not recall the name under which she had the account and no longer had access to the account. Plaintiff subsequently said that following the close of discovery she regained access to the account but did not initially mention this to her attorney. She later asserted that after regaining access she printed her profile and all information regarding her account. Defendant took issue with the production, arguing that it was incomplete, and seeking supplementation; plaintiff responded that she could not because in the interval she had deleted her account. The court found that plaintiff failed to comply with her FRCP 26(e) duty to supplement her Facebook-related discovery responses after she regained access to her account and when she deleted her account, warranting sanctions. The court ordered defendant to submit a proposed adverse-inference jury instruction regarding the content of plaintiff’s Facebook page and her deletion of the related account. Cordova v. Walmart Puerto Rico, Inc. et al., No. 16-2195 (ADC) (D.P.R. July 16, 2019).

ANNOUNCEMENTS

Date Focus Organization Title
8/1/2019 ED Exterro Fifth Annual E-Discovery Day to Take Place on December 4, 2019
8/1/2019 ED Legility Legility Acquires eDiscovery Company iControlESI
8/1/2019 LT/DT Linklaters Linklaters crowdsourcing ideation platform gives its people the opportunity to shape the firm’s future
8/5/2019 ED Ipro Ipro Releases New Desktop Offering Combining eDiscovery and Trial Software
8/6/2019 ED Nuix Nuix Announces Launch of Nuix Discover

ADDITIONAL ARTICLES

Date Focus Publisher Title Authors
7/23/2019 C/DP

ED

Recorded Future How Relativity Powers Up Their SIEM With Threat Intelligence Zane Pokorny
7/29/2019 C/DP Legaltech News 5 Ways Companies Can Curb Risk When Transferring Data Victoria Hudgins
7/30/2019 ED Legaltech News KLDiscovery Absorbs Two E-Discovery Providers With an Eye on Tech Expansion Victoria Hudgins
8/1/2019 ED Relativity Changing the Conversation: Cost Recovery as Risk Mitigation Daniel Pelc
8/1/2019 ED eDiscovery Daily Blog In Search of Cases Where Production of Databases Has Been Ordered: eDiscovery Case Law Doug Austin
8/2/2019 ED eDiscovery Daily Blog Court Sanctions Plaintiff for Spoliation of Facebook Account: eDiscovery Case Law Doug Austin
8/2/2019 ED Relativity A Year of SaaS in Review: Moving Beyond e-Discovery Mary Rechtoris
8/4/2019 LT/DT Legal Evolution Legal tech platforms through the years (108) Kenneth Jones (Tanenbaum Keale LLP)
8/5/2019 ED The Florida Bar Face-Off on Facebook: Judges and Lawyers as Social Media ‘Friends’ in a Post-Herssein World Ralph Artigliere, Bill Hamilton (UF Law), David Hazouri (Rafool, LLC), and Jan L. Jacobowitz (Univ. of Miami School of Law)
8/5/2019 ED New York Law Journal Third Circuit Grants New Trial To Allow E-Discovery Expert Testimony H. Christopher Boehning and Daniel J. Toal (Paul Weiss)
8/5/2019 C/DP Bryan Cave Leighton Paisner GDPR Privacy FAQs: Do Cookie Banners that Provide the Ability to Opt-Out of Analytics and Advertising Cookies Satisfy European Privacy Laws? Christian M. Auty
8/6/2019 ED

LT/DT

Relativity 4 Qualities Modern Corporations Need in Their Legal Teams Sam Bock
8/7/2019 ED Relativity ILTACON Litigation Support Day and the Future of a Profession and an Industry David Horrigan

UPCOMING EVENTS

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

8/8/2018-9/6/2019 EVENTS

Start End TZ Type Location Host Title
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 1/13/19 2:00 PM ET Webinar ACEDS CEDS Q&A
8/13/19 1:00 PM ET Webinar Exterro Re-Purposing E-Discovery Processes to Meet Privacy Requirements
8/13/19 1:00 PM ET Webinar Officer.com How Automating Evidence Redaction Saves Law Enforcement Time & Money
8/13/19 2:00 PM ET Webinar DATAVERSITY Data Management versus Data Strategy
8/14/19 1:00 PM 8/14/19 2:00 PM ET Webinar ACEDS Fight PII Challenges with a One-Two Punch: H5 Matter Analytics + Milyli’s Blackout
8/14/19 1:00 PM ET Webinar Exterro The Results are In…Top E-Discovery & Records Request Challenges for Government
8/15/19 12:00 PM CT Meeting Minneapolis, MN MALSP August 2019 MALSP Meeting – Understanding eDiscovery in the Cloud
8/15/19 1:00 PM 8/15/19 2:00 PM ET Webinar ACEDS Benchmarking Discovery Cost Recovery: Highlights From Logikcull’s 2019 Billing Survey
8/15/19 2:00 PM ET Webinar DATAVERSITY Data Governance versus Information Governance
8/18/19 8:00 AM 8/18/19 5:30 PM 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
8/27/19 1:00 PM 8/27/19 2:00 PM ET Webinar MER It Takes More Than a Tool: 3 Critical, Yet Simple Practices for Successful Content Analysis and Cleanup
8/28/19 1:00 PM 8/28/19 2:00 PM ET Webinar ACEDS ESI in Criminal Investigations and Proceedings: An Overview
8/28/19 1:00 PM ET Webinar XDD A Supercomputer in Every Pocket: Mobile Devices in eDiscovery, 2019 Edition
9/2/2019 9/3/2019 AEST Conference Sydney, Australia CLOC CLOC2019 Sydney Institute
9/3/2019 9/5/2019 CT Conference Austin, TX Mitratech Interact 2019
9/3/19 12:00 PM 9/3/19 1:30 PM ET Webinar High Performance Counsel HPC #ThinkTank: State of the Legal Industry
9/5/19 8:00 AM 9/5/19 5:00 PM SAST Conference Johannesburg, South Africa ALM Corporate Counsel Forum Africa 2019
9/5/19 8:00 AM 9/5/19 5:15 PM BST Conference London, UK The Masters Conference Disclosure Is Always Changing When It Comes To Privacy, Cybersecurity, And Artificial Intelligence.
9/5/19 1:00 PM 9/5/19 2:00 PM ET Webinar ACEDS How Automating Early Case Assessment Saves Legal Teams Time & Money

 

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