Justice and Law concept image

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

9/25/2019: more on searching text files with powershell
Case sensitive search for multiple strings:

Select-String -Path C:\FooFolder\txt\*.txt -pattern Art,Beauty,Law -CaseSensitive

9/26/2019: more helpful bookmarlets
Use a bookmarklet to grab all images on a web page.

9/27/2019: Excel formula to compare how similar text is two cells is
This is useful to find variations on a person’s name on a worksheet.

9/28/2019: powershell command to get a list of files in a folder
Get-ChildItem -Path C:\FooFolder

9/29/2019: Prince Moves to Sanction
In a case in which the Defendants wiped the content of cell phones, the Court issued a fine but not an adverse inference instruction.

9/30/2019: Use VPN while on public wifi
A good VPN should allow you to hide your location and true IP address.

10/1/2019: Confirming that your VPN is active
If you’ve installed a VPN app on your phone and you want to confirm that it’s activated, google “What’s my IP address?” before turning on the app and then afterwards.  If the IP address doesn’t change then the VPN is not working.

10/2/2019: Study of OCR Quality
Adobe’s Capture OCR tool finds more false negatives than it does false positives.

10/3/2019: Connecting your smartphone aboard
If you have an iPhone go to Settings . . . Cellular . . .Network Selection, and then turn off the automatic setting.  Below you should see multiple local networks to choose from.

10/4/2019: SAP ERP
SAP ERP (enterprise resource planning) is software package widely used by companies for business operations; finance; human resources; and other corporate services.

10/5/2019: Court rejects inquiry into doc review process
An inquiry by opposing counsel about a party’s document review process was rejected.

10/6/2019: Clipboardic
Nirsoft’s free utility Clipboardic will copy whatever you copy to your clipboard to a designated file.

10/7/2019: D.C. Court Finds that Low Precision Is Good Cause for Extending Discovery Schedule
A production with a precision of 16.7% was found to be good cause for the extension of discovery deadlines.

10/8/2019: Relativity Security White Paper
Relativity utilizes the MITRE ATT&CK knowledge base to keep track of the techniques used by hackers.

10/9/2019: G-Cloud
The UK’s G-Cloud programme is a digital marketplace where British government agencies can acquire cloud computing services.

10/10/2019: Replicating Entries Across Worksheets
Don’t miss that in MS Excel you can replicate entries on one worksheet across multiple worksheets by selecting the cells you want to copy, selecting the worksheets the data should be sent to, and then going to Home . . . Fill . . . Across Worksheets.

10/11/2019: Creating a Searchable Set for an Analytics Index
When creating a searchable set for an analytics index in Relativity, don’t use single choice, multiple choice, or multiple object fields.

10/13/2019: Name Normalization
In name normalization, Relativity will use segment matching to help associate email aliases with one another. Segment matching reviews emails sent on the same date with the same body to see if email addresses in the header fields can be joined.

10/14/2019: Running Name Normalization in Structured Analytics
Name normalization in structured analytics in Relativity can identify as many as 2900 email aliases in as little as four minutes.

10/15/2019: PowerPoint Slides Lock Up
If your PowerPoint slides lock up, make sure you’re not in kiosk mode.

10/16/2019: Australia’s IRAP
The Australian government’s Information Security Registered Assessors Program (IRAP) provides cyber security guidelines.  Assessors identify security deficiencies and then evaluate compliance with corrective measures.

10/17/2019: Windows File Protection
If you run the command:

sfc /scannow

. . . in the System32 folder, the utility System File Checker will perform a comprehensive search for any corrupted system files.

10/18/2019: Trial Director Problems on Windows 10
Trial Director may not launch on Win 10, but IPro has a fix for you.

10/19/2019: dir command to target folder
Drag and drop a folder on a batch file and it will generate a list of the contents.

dir command to target folder

10/20/2019: dir command
dir /s /w >files.txt – for wide format.

10/21/2019: Exiftool
ExifTool is a must have – a nice and easy little utility that helps you capture metadata.

10/22/2019: Highlighting Photo Areas with the Fragment Tool
Use PowerPoint’s fragment tool to emphasize an area in a photo.

10/23/2019: Avoiding the overwrite prompt for duplicate file names
Add echo “No” | copy/-Y

to the start of a copy batch file to avoid the overwrite prompt for dupe files in the destination folder.

10/24/2019: Set Long Text Field Size mass operation
In Relativity when using the mass op Set Long Text Field Size, you can edit the documents in a set for the text field size even if you only have read only permissions to the documents.

10/25/2019: Comparing workbooks
Activate the compare and merge workbooks tool in Excel to detect changes in multiple Excel files.

10/26/2019: What about your iPhone is foregone?
This month, the Oregon Court of Appeals in State v. Pittman, 300 Or App 147 (Ore. Ct. App. Oct. 16, 2019) ruled that the Fifth Amendment did not prevent the police from requiring a defendant to disclose the passcode to her smartphone.

10/27/2019: Simple Mass Downloader
Use the Simple Mass Downloader add-in for Chrome to bulk download files.

10/28/2019: D. Minn.: Fee-Shifting Sanctions for Failure to Reproduce Emails Buried in Initial Data Dump
“It was unreasonable for Mr. Beckmann to turn over to his client the responsibility for searching through his ESI and that abdication contributed to the discovery failures in this case.”

10/29/2019: NYS App. Div.: Social Media Tags Discoverable If They Contradict Claims
The Court’s unanimous decision stated that, “That plaintiff did not take the pictures himself is of no import. He was ‘tagged,’ thus allowing him access to them, and others were sent to his phone.”

Young woman looking on the black board with mathematical formula

There Is No One-Size-Fits-All Sample Size Appropriate for TAR Validation (Part I)

Acknowledgments: I am grateful to Mary Mack, CEDS, CISSP, for her valuable feedback on an early draft of this piece.

At some point eDiscovery practitioners seem to have tacitly agreed that sample sizes for TAR validation testing should generally be taken using a 95% confidence level (CL) and, usually, a 2% to 5% confidence interval (CI). Often people want to review the lowest defensible number of documents for validation purposes, so with absolutely no regard to the specific parameters of their data they cling to a 95% CL, 5% CI whether they’re sampling for a control set or sampling for elusion testing. If this is your approach to TAR validation, please read to the end and reconsider!

This is a major problem in the industry. Over and over, I meet brilliant, competent experts who simply don’t understand what their preferred sample size really implies. I’ve even read white papers that belie their authors’ proclaimed expertise on validation.

I’m going to give some examples that should elucidate the consequences of the erroneous assumptions so many make, but first let’s touch on a Stats 101 overview of probability theory. It’s so important to fully grasp exactly what a given CL and CI are telling you about your estimates.

Confidence Level: In plain English, a confidence level is the probability that a sample is representative of your overall population. A 95% confidence level means that, on average, 19 out of 20 samples will give you accurate estimates. Keep in mind that you should expect that 1 out of 20 samples will result in an incorrect estimate.

Confidence Interval: Your confidence interval gives you a range that likely contains the true proportion of all the documents from which you’re drawing your sample. For example, 80% recall with a 5% confidence interval means that the software probably identified 75% to 85% of the responsive documents in the database. It’s important to note that in this scenario, for any given confidence level, it’s just as likely that 76% are responsive as it is that 82%—or any other number in that range—are responsive. I cannot emphasize this enough: you should not conclude that it is more likely that actual recall is 80%. With 95% confidence, it is just as likely 84% or 78%. For this reason, you should always make decisions about recall based on the lower bound of this range.

In fact, I always try to give my clients ranges, minimums, or maximums. I rarely give only the statistic, because it is virtually meaningless without a confidence interval. It’s also worth noting that the closer your proportion is to 50%, the more documents you need to review for a precise range. But that’s another article for another day.

It’s crucial to remember that we’re calculating sample size to estimate a proportion. This means that we cannot estimate recall and precision at 95% CL, 5% CI using a 95% CL, 5% CI sample of all documents in the database. (Unless more than 95% of all documents in the database are responsive—but why would we ever use TAR under those circumstances?)

Because precision and recall are proportions of only the documents designated as responsive by either the software or a human reviewer, you need to make sure you have enough responsive documents in your random sample to calculate useful estimates of these validation metrics. That’s not too onerous if 30% to 34% of your documents are responsive, but things get tricky and inefficient when only 1% to 3% of all the documents are responsive.

Consider the following examples to see how problematic these common misunderstandings can be.

Let’s imagine we’re starting with 100,000 unreviewed documents. The sampling feature of my review software gives me 383 documents for my control set using 95%, 5%. The associate on the case reviews them with perfect accuracy and identifies 123 as responsive, 260 as non-responsive.

Great! We can use our confidence interval to estimate that 27% to 37% of all documents in the database are responsive. Let’s train the TAR software and look at our recall and precision.

We find that the software categorized our control set such that we have:

92 documents categorized as responsive by both the attorney and the software 39 documents categorized as not responsive by the attorney and as responsive by the software
31 documents categorized as responsive by the attorney and as not responsive by the software 221 documents categorized as not responsive by both the attorney and the software

Remembering that recall and precision are calculated as:

Our statistics indicate 75% recall and 70% precision, so our sample size suggests we’re at 70% – 80% recall and 65% – 75% precision, right?

This is where I’ve seen a lot of very smart people go wrong.

Leaving aside questions about probability theory, which confidence interval formula to use, and mathematical proofs, our sample size and 32% rate of responsiveness does suggest around 27% to 37% of all the documents are responsive. However, since our sample size for recall is 123, not 383, we can only estimate with 95% confidence that recall is anywhere between 66% and 82%. Remember that it’s just as likely it’s really 67% as it is that it’s 79%. Are you comfortable defending the decision to produce only 2 out of every 3 responsive documents? Our precision estimate is also fairly wide at 62% to 78%.

We’d have to triple the size of the control set, and we still might not have enough responsive documents to calculate a 5% confidence interval, but we should probably be in good shape if we include at least 1425 total in the control set. While that’s quite a bit more than 383, at least it’s still a practical number. In this scenario it’s reasonable to conclude that a control set is appropriate for validation, but make sure it’s large enough and that you (or your data science consultant) are calculating the actual confidence intervals for your validation metrics.

Now let’s imagine the same scenario, but this time the associate coded with perfect accuracy and found that 8 were responsive and 375 were not responsive.

She then trained the model and we’re looking at:

6 documents categorized as responsive by both the attorney and the software 3 documents categorized as not responsive by the attorney, but categorized as responsive by the software
2 documents categorized as responsive by the attorney, but categorized as not responsive by the software 372 documents categorized as not responsive by both the attorney and the software

Now recall and precision are calculated as:

Same 75% recall and now 67% precision, but, with a 95% CL, our range is anywhere from 35% to 97% using a conservative estimate for recall, and our precision estimate is equally useless at 30% to 93%. We’d probably need around 9,500 to 38,000 documents in our control set to estimate these within our desired 5% interval!

It rarely makes sense to include so many documents in a control set, so in situations like these I note the proportion of responsive documents to help guide workflow, then count on elusion testing for validation.

If you, like others, are now wondering if we can simply calculate recall and precision based on all documents designated as responsive by humans or the software, including ones used to train the model, I have more bad news.

Of course we can plug numbers into the numerator and denominator to come up with a number. In fact, I should admit that I absolutely do that to guide workflow when I’m dealing with a very low proportion of responsive documents—but it’s not an appropriate method for validation and you should not assume you hit your target recall if this is the recall estimate you’re using. Why? Because you’re probably going to have issues with what we call an overfitted model—a common problem with machine learning. Both precision and recall are likely to be exaggerated if you calculate them on documents that were used to train the model, because the model is too specific to the examples you used for training and not generalizable to documents that have not been reviewed.

The good news is that elusion testing gives you a reasonable way to estimate recall, but you need to be just as careful with confidence intervals as you decide how many documents to include in your elusion sample. I’ll walk you through that in the second part of this piece.

 

[i] I use Clopper-Pearson intervals for the conservative ranges given here, but I prefer Wilson score intervals. The numbers will differ if you’re using the normal approximation, and there are reasons not to use that method. Please contact me if you have any interest in discussing or debating what interval to use—coffee is absolutely on me if it means meeting someone else who enjoys thinking about this in their free time.

TAR Talk Podcast

Episode One: Flying with Global Aerospace: An Inside Look at the First TAR Case
Hear how Tom Gricks, the lead attorney on the Global Aerospace case, obtained the first order authorizing the use of technology assisted review (TAR) over the objection of opposing party.

Episode Two: The Birth of TAR 2.0 (and CAL) With Dr. Jeremy Pickens
Learn about the birth of continuous active learning from Dr. Jeremy Pickens, Catalyst’s chief scientist. He details the differences between TAR 1.0 and 2.0 and how different systems work.

Episode Three: Is “Backing up the Trucks” Still a Legitimate Strategy in the TAR Era?
John Tredennick and Tom Gricks review a recent decision In Re Domestic Airline Travel Antitrust Litigation, 2018 WL 4441507 (D.D.C. Sept. 13, 2018), a multidistrict class action litigation. Was the plaintiff’s side forced to review non-relevant documents (a document dump) or was it human error?

Episode Four: Can You Do Good TAR with a Bad Algorithm?
Should proportionality arguments allow producing parties to get away with poor productions—simply because they wasted a lot of effort due to an extremely bad algorithm? Dr. Bill Dimm, founder and CEO of Hot Neuron (the maker of Clustify software) joins our hosts to discuss whether one can do “good” TAR with a bad algorithm.

Episode Five: EDRM TAR Guidelines: What’s Good and What’s Not So Good? The TAR Talk Take
After two years of work, Duke Law and EDRM recently published the TAR Guidelines. In this podcast, we give you the TAR Talk take with the good and the not so good. Join us for a fun discussion.

Episode Six: The Latest TAR Poll Results
Rob Robinson of ComplexDiscovery just released the results from the Spring 2019 Predictive Coding Technologies and Protocols Survey. In this episode, we look backwards and forwards and give you the TAR Talk Take.

Episode Seven: TAR Talk featuring Honorable Judge Andrew Peck (ret.)
We talk with Judge Peck, one of the leading judges moving TAR law forward.

Episode Eight: Validation: How Do We Know TAR Worked?
Tom and John take a shot at this tricky topic.

Episode Nine: Fear of Missing Out?
Herb Roitblat recently released a paper called FOMO (Fear of Missing Out), which provided a mathematical analysis of relevance recall for TAR projects. The EDRM claimed that the “analysis has the potential to be a game changer” for legal search and review. Is it? Tune in for the TAR Talk take on Herb’s paper and his analysis. Information Scientist Bill Dimm will be joining us to talk about the math.

Episode Ten: The Battle Between TAR 1.0 and TAR 2.0
The battle between TAR 1.0 and TAR 2.0 rears its ugly head. When is TAR 1.0 the best approach and when is TAR 2.0 better? You may be surprised at our views on this. Tune in for the TAR Talk Take with Tom and John.

Episode Eleven: The Open Source Revolution
The Open Source Revolution: Could it lead to a standard product for TAR engines available to anyone for free?  Join Tom and John for a TAR Talk look at how the open source revolution is now reaching the legal profession.

Visit the TAR Talk homepage here: TARTalk.org

Fall Colors

The Colors of Confidence? eDiscovery Business Confidence Survey Results – Fall 2019

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 sixteen times with 1,771 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.

Fall 2019 Survey Results

The fall 2019 survey response period was initiated on September 29, 2019, and continued until the registration of 150 responses (October 17, 2019). Thanks to the continued strong support of the leadership and marketing team at the Association of Certified E-Discovery Specialists (ACEDS), this quarter’s survey experienced strong seasonal response rates within a short survey window and presents a strong picture of the current confidence levels of participants and practitioners in the eDiscovery ecosystem.

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 fall of 2019.

Business Confidence Questions (Required)

n = 150 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 – 36.0% (Up from Summer 2019)
  • Law Firm – 30.7% (Up from Summer 2019)
  • Corporation – 14.0% (Down from Summer 2019)
  • Consultancy – 12.0% (Down from Summer 2019)
  • Governmental Entity – 4.0% (Down from Summer 2019)
  • Other – 2.7% (Up from Summer 2019)
  • Media/Research Organization – 0.7% (Down from Summer 2019)

Survey Respondents by Organizational Segment

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 – 48.7% (Down from Summer 2019)
  • Normal – 48.0% (Up from Summer 2019)
  • Bad – 3.3% (Down from Summer 2019)

Current Business Climate Overview

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 – 38.7% (Down from Summer 2019)
  • Same – 57.3% (Up from Summer 2019)
  • Worse – 4.0% (Same as Summer 2019)

Business Climate Overview + Six Months

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 – 39.3% (Down from Summer 2019)
  • Same – 52.7% (Up from Summer 2019)
  • Lower – 8.0% (Up from Summer 2019)

Revenue Overview + Six Months

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 – 33.3% (Up from Summer 2019)
  • Same – 56.7% (Down from Summer 2019)
  • Lower – 10.0% (Down from Summer 2019)

 Profits Overview + Six Months

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 – 24.0% (Down from Summer 2019)
  • Increasing Types of Data – 21.3% (Up from Summer 2019)
  • Increasing Volumes of Data – 19.3% (Down from Summer 2019)
  • Lack of Personnel – 13.3% (Up from Summer 2019)
  • Data Security – 13.3% (Up from Summer 2019)
  • Inadequate Technology – 8.7% (Up from Summer 2019)

Issues Impacting eDiscovery Business Performance

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) – 89.3% (Down from Summer 2019)
  • Europe (UK) – 4.0% (Same as Summer 2019)
  • Europe (Non-UK) – 2.7% (Up from Summer 2019)
  • North America (Canada) – 2.0% (Down from Summer 2019)
  • Middle East/Africa – 1.3% (Up from Summer 2019)
  • Asia/Asia Pacific – 0.7% (Up from Summer 2019)
  • Central/South America – 0.0% (Down from Summer 2019)

Survey Respondents by Geographic Region

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

  • Legal/Litigation Support – 79.3% (Down from Summer 2019)
  • Business/Business Support (All Other Business Functions) – 14.7% (Down from Summer 2019)
  • IT/Product Development – 6.0% (Up from Summer 2019)

Survey Respondents by Primary Function

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

  • Operational Management – 35.3% (Down from Summer 2019)
  • Tactical Execution – 34.7% (Down from Summer 2019)
  • Executive Leadership – 30.0% (Up from Summer 2019)

Survey Respondents by Level of Support

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=141 Respondents

  • Increasing – 17.0% (Down from Summer 2019)
  • Unfluctuating – 25.5% (Up from Summer 2019)
  • Decreasing – 5.7% (Down from Summer 2019)
  • Do Not Know – 51.8% (Down from Summer 2019)

eDiscovery Business Metric Trajectory_ Days Sales Outstanding

11. How would you characterize the trajectory of your organization’s Monthly Recurring Revenue (MRR) during the last quarter?
n=141 Respondents

  • Increasing – 24.8% (Down from Summer 2019)
  • Unfluctuating – 27.7% (Up from Summer 2019)
  • Decreasing – 5.0% (Down from Summer 2019)
  • Do Not Know – 42.6% (Down from Summer 2019)

 eDiscovery Business Metric Trajectory_ Monthly Recurring Revenue

12. Which of the following statements best describes the distribution of your organization’s revenue across your customer base during the last quarter?
n=140 Respondents

  • Increasing – 25.0% (Down from Summer 2019)
  • Unfluctuating – 25.7% (Up from Summer 2019)
  • Decreasing – 3.6% (Down from Summer 2019)
  • Do Not Know – 45.7% (Up from Summer 2019)

eDiscovery Business Metric Trajectory_ Distribution of Revenue Across Customer Base

 Past Survey Results

Source: ComplexDiscovery

Typewriter Image

Weekly Trends Report – 10/16/2019 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

Relativity Fest Oct. 20-23 – Join us this month at Relativity Fest in Chicago where my colleagues and I will be speaking on four sessions:

The Master’s Conference Oct. 28-29 – Join us October 28-29 at the offices of Sidley Austin LLP, Washington, D.C. for the Master’s Conference. On Oct. 28 at 4:15 pm, Trent Livingston of ESI Analyst, Tracy Drynan of Cleary Gottlieb Steen & Hamilton, Greg Freemyer of SullivanStrickler LLC, and I will participate in a panel discussion on “Emerging Data Sources: Connecting the Dots on Disparate Data”.

BDO knows CCPA – BDO’s California Consumer Privacy Act resource page enables privacy executives to stay abreast of the impending regulation and learn about overarching privacy and governance considerations in one convenient location.

ELECTRONIC DISCOVERY

New Michigan civil discovery rules to go into effect Jan 1 – As Zach Warren of Legaltech News reported, on Jan. 1, 2020, updated civil discovery rules will go into effect in Michigan. Information about the changes – the biggest in 30 years – are at https://www.michbar.org/civildiscovery, a website set up by the State Bar of Michigan. The site includes useful links to, among other things, the Michigan Supreme Court order detailed the changes; a 104-page Civil Discovery Guidebook prepared by the Bar, the Detroit Chapter of ACEDS, and attorneys at Dickinson Wright and Warner Norcross + Judd; and a 4-page overview prepared by Daniel Quick of Dickinson Wright.

CYBERSECURITY & DATA PRIVACY

Council of EU Member States released draft ePrivacy Regulation – Kristof Van Quathem of Covington reported that the Council of EU Member States has released a new draft version of the ePrivacy Regulation (“EPR”).

California privacy ballot initiative – Perkins Coie reported that a new California ballot initiative, the California Privacy Rights and Enforcement Act of 2020, has been introduced. If it were to go into effect, starting Jan. 1, 2021, it would make the CCPA significantly stricter.

Draft CCPA regulations – The California Attorney General has published draft CCPA regulations, discussed in the following articles:

Other CCPA –

LEGAL TECHNOLOGY & DIGITAL TRANSFORMATION

More movement toward nonlawyer ownership of legal practices – Bob Ambrogi of LawSites reported that an Arizona task force has called for fundamental changes in the regulation of legal services including eliminating the ban on nonlawyer ownership of legal practices. These recommendations are similar to those recently approved by the Utah Supreme Court as well as ones called for by a California task force.

E-DISCOVERY CASE LAW

Recent e-discovery decisions

9/4/2019 – U.S. Magistrate Judge Gwynne Birzer denied plaintiff’s motion seeking contempt and sanctions orders. Plaintiff had served a subpoena on a third party seeking files, some of which the third party had in electronic form and some of which were in paper form. The subpoena asked for records to be produced in “electronic format” but did not specify what format should be used. The third party produced files in PDF format. Plaintiff argued that the third party failed to produce certain ESI in native form with associated metadata and therefore should be sanctioned. The overall analysis is more complex, but the essence of the Court’s ruling was that if plaintiff had wanted ESI produced in native form with associated metadata, plaintiff should have said so in her subpoena; instead, she left election of the production format to the third party whose choice of PDF might not be what plaintiff now wants but nonetheless was a reasonable choice for the third party to make. Smith v. TFI Family Services, Inc., No. 17-02235-JWB-GEB (D. Kan. Sep. 4, 2019).

ANNOUNCEMENTS

Date Focus Organization Title
10/15/2019 FTI Consulting

Relativity

FTI Consulting and Relativity Release General Counsel Survey and Report on Risk, Technology and the Evolution of the Legal Industry
10/16/2019 LT/DT

 

Merlin Legal Open Source Foundation Merlin Legal Open Source Foundation Launches

ADDITIONAL ARTICLES

Date Focus Publisher Title Authors
10/10/2019 ED Legaltech News The Most Important Resource for E-Discovery’s Global Expansion Isn’t Technology Rhys Dipshan
10/16/2019 ED eDiscovery Daily Blog Court Denies Plaintiff’s Request to Hold Non-Party in Contempt for Failing to Produce Native Files: eDiscovery Case Law Doug Austin

 

10/16/2019 ED Relativity 3 Perceived Barriers to Relativity App Development (And Why They Shouldn’t Stop You) Sam Bock

 UPCOMING EVENTS

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

10/17/2018-11/15/2019 EVENTS

Start End TZ Type Location Host Title
10/17/19 11:00 AM 10/17/19 12:00 PM ET Webinar Epiq Leveraging Office 365 for GDPR/CCPA Compliance
10/17/19 1:00 PM 10/17/19 2:00 PM ET Webinar ACEDS Enhancing Document Review Workflows (Privilege too!) with H5 Matter Analytics Email Threading
10/17/19 2:00 PM ET Webinar DATAVERSITY Build Your Own Data Governance Tools
10/17/19 3:30 PM 10/17/19 3:30 PM ET Webinar ACEDS TAR Talk: The Open Source Revolution
10/20/19 10/23/19 Conference Nashville, TN ARMA ARMA Conference 2019
10/20/19 10/23/19 Conference Chicago, IL Relativity Relativity Fest
10/21/19 9:00 AM CT Streamed Relativity Relativity Fest 2019 Keynote
10/21/19 1:00 PM 10/21/19 2:00 PM ET Webinar Husch Blackwell New York’s SHIELD Act: “Reasonable” Safeguards on Private Information
10/23/19 12:00 PM 10/23/19 1:00 PM ET Webinar Faegre Baker Daniels Navigating the Data Map: Rules, Tools and Why They Matter
10/23/19 2:00 PM 10/23/19 2:30 PM ET Webinar ABA Today’s Legal Document Management Technology
10/24/19 8:30 AM 10/25/19 1:00 PM CT Conference St. Louis, MO The Sedona Conference The Sedona Conference Working Group 1 Annual Meeting 2019
10/24/19 1:00 PM 10/24/19 2:00 PM ET Webinar ACEDS How Automating eDisclosure with Audio, Video & Native Document Translations Saves Time and Money
10/24/19 2:00 PM ET Webinar DATAVERSITY Data Modeling Best Practices – Business and Technical Approaches
10/24/19 4:00 PM 10/24/19 5:00 PM ET Webinar ACEDS How Automating eDisclosure with Audio, Video & Native Document Translations Saves Time and Money
10/24/19 5:30 PM PT Meeting ACEDS ACEDS Portland Chapter: October Social & Cocktail Reception
10/27/19 5:30 PM 10/30/19 12:30 PM MT Conference Phoenix, AZ ACC 2019 ACC Annual Meeting
10/28/19 8:00 AM 10/29/19 5:00 PM ET Conference Washington, DC The Masters Conference The Master’s Conference 13th Annual Washington, DC Event
10/28/19 8:00 AM 10/29/19 5:23 PM ET Conference Washington, DC The Masters Conference The Masters Conference 13th East Coast Event
10/29/19 1:00 PM 10/29/19 2:00 PM ET Webinar Today’s General Counsel Shielding Your Organization from Data Privacy Nightmares
10/29/19 2:00 PM 10/29/19 2:30 PM ET Podcast ACEDS Musings with Marc & Mary: Part Three
10/30/19 11/1/19 Conference Dublin, Ireland ITechLaw 2019 European Conference
10/30/19 10:00 AM ET Webinar HaystackID Why Technology Matters: A Look at Current Trends and Top eDiscovery Technologies
10/30/19 11:30 AM 10/30/19 12:15 PM ET Webinar Concept Searching Trusted Staff and Partners? Think Again About Data Breaches
10/30/19 12:00 PM 10/30/19 1:00 PM ET Webinar Orrick Orrick’s Privacy Law Webinar Series Part 5: Last-Minute CCPA Amendments: Changes to California’s New Privacy Law Ahead of the Effective Date
10/30/19 1:00 PM 10/30/19 2:00 PM ET Webinar ACEDS Practical Uses of Brainspace
10/30/19 1:00 PM 10/30/19 2:00 PM ET Webinar XDD Experience XDD’s Proprietary Mobile Discovery Solution
10/31/19 6:00 AM 10/31/19 7:00 AM ET Webinar Ankura Global Data Privacy Webinar – India Data Protection Bill and GDPR
10/31/19 2:00 PM ET Webinar Hanzo Emojis and the law: Real-world eDiscovery challenges of enterprise collaboration
11/4/19 7:00 AM 11/4/19 4:00 PM ET Conference New York, NY Information Management MDM & Data Governance New York
11/4/19 12:00 PM 11/6/19 12:45 PM PT Conference La Jolla, CA ALM Strategic Technology Forum US
11/5/19 8:30 AM 11/5/19 5:00 PM PT Conference Vancouver, Canada ADB Insights ABD Insights BC Legal Innovation Forum
11/5/19 9:00 AM 11/5 5;15 p BST Conference London, UK Thomson Reuters Events Legal & Technology Procurement Conference 2019
11/6/19 5:00 PM 11/6/19 7:00 PM CT Meeting Chicago, IL ACEDS *Save the Date* ACEDS Chicago Chapter: Q&A (topic TBD) and Concurrent CEDS Exam Study Group
11/7/19 8:30 AM 11/7/19 6:00 PM GMT Conference London, UK The Cowen Group SOLID London
11/7/19 1:00 PM 11/7/19 2:00 PM GMT Webinar ACEDS Manage DSAR Challenges through Workflow Optimisation and Automation
11/11/19 3:00 PM 11/14/19 12:00 PM PT Conference Las Vegas, NV Opentext Enfuse 2019
11/12/19 11/12/19 BST Conference London, UK AIIM AIIM Forum Europe
11/12/19 2:00 PM ET Webinar DATAVERSITY Metadata Strategies
11/13/19 11/14/19 CT Conference Dallas, TX Today’s General Counsel The Exchange Data Privacy and Cybersecurity Forum
11/13/19 12:00 PM 11/13/19 1:00 PM ET Webinar ACC Latest Developments in Cybersecurity
11/13/19 12:00 PM 11/13/19 1:00 PM PT Meeting San Diego, CA Women in eDiscovery San Diego Chapter Meeting – eDiscovery for Paralegals

SEE PAST WEEKLY TREND REPORTS

businessman writing on paper in office

My First 10 Days . . . An Open Letter to the ACEDS Membership

Dear ACEDS Community,

Ten days in and it has been a whirlwind of meetings and phone calls as I begin to immerse myself in this exciting new role.

I’m not sure everyone knows that the ACEDS community includes individuals from around the globe. Currently, we have 1360 CEDS certified members, nearly 2500 active members, and over 30 affiliate and affinity partners in 20 countries. We have local chapters in 17 major US cities, the UK, Ireland, Benelux and South Africa, with additional chapters coming online soon.

I’m also not entirely sure that many can appreciate the volume of energy, the enormity and breadth of the challenges, and the dedication one must commit to ACEDS in order for the association to function. It is appropriate, then, for me to first tip my hat to Mary Mack and her lieutenant, Kaylee Walstad, for guiding ACEDS through a period of growth and building an association that I am proud to be part of — even if I’m somewhat intimated by the sheer awesomeness with which they ran it. Mary has been a friend and mentor, and I have learned from her that you can approach new challenges from a position of fear and intimidation, or from a position of love. Her outlook, grace, the way she interacts with others, her regard for the common good, and her devotion to the collective enlightenment of others are encouraging and inspiring. So, thank you Mary and Kaylee. I wish you well and I am grateful for all you’ve done for me personally and for ACEDS. I look forward to working with you in the future.

Now, if you’ve ever taken on a new and complex challenge, you know that drinking from a fire hose is not easy. Fortunately, I am methodical and patient. In the past week, I have received hundreds if not a thousand messages, likes, posts, congratulatory calls and emails. I’m overwhelmed by the kindness from and engagement of all of you in our community, and wish I could respond to everyone in person. To all of you, please know how appreciative I am of your support and good wishes and how much it means to me. Your notes and communications just reinforce how special the e-discovery community really is.

Among those communications, I’ve also received some not-so-subtle suggestions on what ACEDS should (and should not) be doing; I’ve heard expectations from some and recommendations from others. The global passion for e-discovery and for ACEDS clearly runs deep and is meaningful.

And although it’s a busy time for me, I want to assure each and every member of the community that I am interested in hearing from you, and I am listening. It is only together, with a common mission, that we advance and mature the e-discovery community, and ACEDS exists to serve the community.

I am beginning to identify and more clearly see our priorities. My goal over the coming months is to listen carefully and execute precisely. My first priority is ensuring the strength and the support of the ACEDS management team. I’ve always felt that not enough credit is given or appreciation is felt for the people who toil daily behind the scenes to keep the lights on. Each of the individuals who work to execute on the ACEDS mission are here to serve the e-discovery community. Our number one goal is to continue delivering relevant, high-quality content and the best-in-class e-discovery training and certification credential across the industry.

I am also committed to diversity and inclusion across our global community. I personally believe that we are better and stronger as a community and professional association when more people from diverse and varied backgrounds, cultures, orientations—frankly, from every corner of the planet—have a voice and access to the resources they need to succeed in their careers.

In the coming weeks and months, I will try to meet with as many members as possible and talk with each chapter, partner and affiliate. This is as much your organization as mine, and as the leader I want to ensure your voices are heard. Some things will work; others may not. I believe that people, more often than not, simply want to know they are being heard. I hope to provide that opportunity.

I will endeavor to schedule meetings with each of the ACEDS Affiliate Partners who have supported the association over the years to thank them. These partners are leading the charge in innovation, and they help provide our members with the training and education they need to keep up with change. I want to learn more about what our Partners are doing, what changes they see as the industry continues to evolve, and how ACEDS can help.

In the meantime, I am overwhelmed by the warmth, enthusiasm and dedication of every single person I have had a chance to talk to, and this simply reinforces my interest in and desire to lead such an amazing and meaningful organization.

Please do not hesitate to reach out to me at mquartararo@aceds.org.

And join us at Relativity Fest on Monday, October 21st for a cocktail hour to celebrate the past and the future of ACEDS.

 

Mike Quartararo's Signature

Michael Quartararo, CEDS
President – ACEDS and Professional Development

Typewriter Image

Weekly Trends Report – 10/9/2019 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

Relativity Fest Oct. 20-23 – Join us this month at Relativity Fest in Chicago where my colleagues and I will be speaking on four sessions:

The Master’s Conference Oct. 28-29 – Join us October 28-29 at the offices of Sidley Austin LLP, Washington, D.C. for the Master’s Conference. On Oct. 28 at 4:15 pm, Trent Livingston of ESI Analyst, Tracy Drynan of Cleary Gottlieb Steen & Hamilton, Greg Freemyer of SullivanStrickler LLC, and I will participate in a panel discussion on “Emerging Data Sources: Connecting the Dots on Disparate Data”.

BDO knows CCPA – BDO’s California Consumer Privacy Act resource page enables privacy executives to stay abreast of the impending regulation and learn about overarching privacy and governance considerations in one convenient location.

ELECTRONIC DISCOVERY

Mike Quartararo and Ari Kaplan join ACEDS – As noted by Bob Ambrogi of LawSites, Stephen Fredette, the Chairman and CEO of BARBRI, announced that on Oct. 1 Mike Quartararo joined the organization as President of ACEDS and Professional Development and that Ari Kaplan will consult with the company to help build a new ACEDS Global Advisory Board and act as Chairperson for that group.

Third-party subpoenas and the duty to preserve – U.S. District Judge J. Michelle Childs and Ethan Bercot (Nelson Mullins) prepared an article published by the American Bar Association discussing third-party subpoenas and the duty to preserve. Their conclusion: companies generally have a duty to preserve data responsive to a third-party subpoena; and if the company determines that (a) the subpoena should not cause it to reasonably anticipate becoming a party in litigation and (b) there are not other independent obligations to preserve the data at issue, then the company likely will be able to limit the costs and disruptions involved in responding.

Missouri updated its e-discovery rules – Rachel Harris of Thompson Coburn wrote that the Missouri governor signed into law Senate Bill 223 which amended that state’s discovery rules to, among other things, attempt to bring the state’s e-discovery rules more in line with the Federal Rules of Civil Procedure.

Complex commercial litigation described – In e-discovery circles we frequently talk about “complex commercial litigation” but how many of us have a solid understanding of what that means? Ryan Frei and Ashley Peterson of McGuireWoods have prepared a primer that covers the basics and more.

The CLOUD Act – Attention is starting to focus on the Clarifying Lawful Overseas Use of Data Act (the CLOUD Act):

30(b)(6) dos and don’ts – Tom O’Connor has prepared a set of six posts on the dos and don’ts of 30(b)(6) depositions:

CYBERSECURITY & DATA PRIVACY

NIST released Privacy Framework preliminary draft – Covington reported that the U.S. Department of Commerce’s National Institute of Standards and Technology has released a preliminary draft of the “NIST Privacy Framework: A Tool for Improving Privacy through Enterprise Risk Management”. NIST will be taking public comments through Oct. 24.

Maine and Nevada privacy laws – Sean Klammer of Porter Wright prepared an overview of Nevada’s privacy law, which became effective on Oct. 1, and Maine’s new Broadband Internet Access Service Customer Privacy act, which is scheduled to take effect on July 1, 2020.

CCPA –

GDPR –

INFORMATION GOVERNANCE

2019 ILTA Legal Tech Survey Executive Summary released – Sharon Nelson of Sensei Enterprises  reported that the International Legal Technology Association has released an executive summary of its 2019 Technology Survey, which looks at what law firms are doing with technology. The full survey, to be released later this month, will be available to ILTA members for $500.

LEGAL TECHNOLOGY & DIGITAL TRANSFORMATION

Michigan 37th state to adopt ethical duty of competence for lawyers – Bob Ambrogi of LawSites reported that the Michigan Supreme Court issued an order adopting a variation of Model Rule 1.1, Comment 8, of the American Bar Association’s Model Rules of Professional Conduct – making it the 37th state of adopt the ethical duty of competence for lawyers. The amendment takes effect on Jan. 1, 2020.

E-DISCOVERY CASE LAW

Recent e-discovery decisions

8/22/2019 – U.S. District Judge Edward Davilla denied a motion to modify a special master’s order authorizing forensic imaging of devices belonging to 10 of more than 90 named plaintiffs and an associated protocol. Plaintiffs moved to have the protocol modified so that defendant’s discovery of devices would be limited to the extraction of “limited diagnostic data” instead of full forensic imaging, asserting that allowing full forensic imaging would constitute an invasion of privacy. First, the Court found that plaintiffs “have a legally protected privacy interest in their devices, that their expectation of privacy in their phones is reasonable, and that the threatened invasion is serious.” The Court determined that while full forensic imaging is a significant invasion of plaintiffs’ privacy, the “robust protections” in place adequately protected that privacy; those protections, too numerous to relate here, warrant reading.  Next, the Court found that defendant has a compelling need to obtain the discovery. Only by obtaining full forensic images of plaintiffs’ devices would defendant be able to test the performance of those devices, performance that is integral to plaintiffs’ claims. The Court rejected as unpersuasive plaintiffs’ argument that a less intrusive approach, extraction of limited diagnostic data, would be sufficient. In Re: Apple Inc., No. 5:18-md-02827-EJD (N.D. Cal. Aug. 22, 2019).

ANNOUNCEMENTS

Date Focus Organization Title
9/18/2019 C/DP Integreon Integreon Launches New Cyber Incident Response (CIR) Service to Identify and Extract Sensitive Data for Breach Notification
10/1/2019 ED Veritone San Francisco Giants Choose Veritone For AI-Powered, Rapid Media Discovery And Workflows To Further Fan Engagement

ADDITIONAL ARTICLES

Date Focus Publisher Title Authors
9/12/2019 C/DP Sidley Where Does Privacy Go From Here: California, EU and Indian Data Privacy Laws and Global Compliance Programs Alan Charles Raul, William RM Long, Vishnu Shankar, and Sheri Porath Rockwell
9/17/2019 ED Legaltech News Inventus Launches Zenith, Bringing E-Discovery Experience to Small Matters Victoria Hudgins
9/25/2019 C/DP Bloomberg Law National Security Experience a Growing Draw for Big Law (Corrected) Elizabeth Olson
10/1/2019 C/DP Insurance Journal Cyber Tops All Other Risk Concerns for Businesses of All Sizes
10/3/2019 ED Relativity 10 Ways to Make the Most of the 10th Annual Relativity Fest McKenna Brown
10/3/2019 ED Legaltech News 5 Best E-Discovery Practices in Opioid Litigation Samantha Green (Epiq)
10/7/2019 ED Envista Forensics Are There Really Flaws in Cell Phone Location Evidence? Larry Daniel, Spencer McInvaille, and Eric Grabski
10/8/2019 ED eDiscovery Daily Blog Court Denies Plaintiff’s Request to Avoid Forensic Imaging of Devices in Apple Performance Case: eDiscovery Case Law Doug Austin
10/8/2019 LT/DT LawSites In NYC? Oct. 15 NYU Panel Will Consider the Impact of Innovation in Law Bob Ambrogi
10/8/2019 ED Legal IT insider What we learnt about the Disclosure Pilot 10 months in Vince Neicho (Integreon)
10/8/2019 ED Above the Law The SEC Joins The Cutting-Edge eDiscovery World Joe Patrice
10/9/2019 ED Relativity Illustrating the Diverse Value of Professional Certifications McKenna Brown

 UPCOMING EVENTS

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

10/10/2018-11/8/2019 EVENTS

Start End TZ Type Location Host Title
10/10/19 1:00 PM 10/10/19 2:00 PM ET Webinar ACEDS DSARs – Operational Burden and Resource Hungry!
10/10/19 1:00 PM 10/10/19 2:00 PM ET Webinar MER A Global Privacy Review
10/10/19 1:00 PM 10/10/19 2:00 PM ET Webinar MER A Global Privacy Review
10/10/19 1:30 PM ET Webinar ABA Construction & Data Privacy Regional CLE Program
10/11/19 BST Conference London, UK Artificial Lawyer Legal Innovators
10/13/19 10/15/19 PT Conference Westlake Village, CA Consero Corporate Litigation Forum
10/14/19 5:00 PM 10/16/18 5:00 PM PT Meeting Lake Tahoe, NV EDI The 5th GICLI Annual Meeting
10/15/19 10/17/19 ET Conference Herndon, VA OSDFCon 10th Annual Open Source Digital Forensics Conference
10/15/19 1:00 PM 10/15/19 2:00 PM ET Webinar ACEDS Navigating eDiscovery Vendors
10/15/19 6:30 PM 10/15/19 9:00 PM ET Conference New York, NY NYU Law NYU Law and Tech: Impact of Innovation
10/16/19 9:00 AM 10/16/19 6:00 PM BST Conference London, UK Legal Geek Legal Geek Conference
10/16/19 1:00 PM 10/16/19 2:00 PM ET Webinar ACEDS A Practical Guide to Leveraging Technology-Assisted Review in Litigation
10/16/19 1:00 PM 10/16/19 2:00 PM ET Webinar Lexbe Mastering the Document Intensive Case: A Blueprint for the Boutique Firm
10/16/19 2:00 PM ET Webinar Law.com Find that Needle in a Haystack with Advanced eDiscovery Search Techniques Before and During Review
10/16/19 3:00 PM 10/16/19 4:00 PM ET Webinar Holland & Knight Cybersecurity Risks for the Autonomous Transportation Sector
10/16/19 4:00 PM 10/18/19 1:45 PM ET Conference Incline Village, NV EDI EDI Leadership Summit
10/16/19 4:00 PM 10/18/19 2:00 PM PT Conference Lake Tahoe, NV EDI The 9th Annual EDI Leadership Summit
10/17/19 1:00 PM 10/17/19 2:00 PM ET Webinar ACEDS Enhancing Document Review Workflows (Privilege too!) with H5 Matter Analytics Email Threading
10/17/19 2:00 PM ET Webinar DATAVERSITY Build Your Own Data Governance Tools
10/17/19 3:30 PM 10/17/19 3:30 PM ET Webinar ACEDS TAR Talk: The Open Source Revolution
10/20/19 10/23/19 Conference Nashville, TN ARMA ARMA Conference 2019
10/20/19 10/23/19 Conference Chicago, IL Relativity Relativity Fest
10/23/19 12:00 PM 10/23/19 1:00 PM ET Webinar Faegre Baker Daniels Navigating the Data Map: Rules, Tools and Why They Matter
10/23/19 2:00 PM 10/23/19 2:30 PM ET Webinar ABA Today’s Legal Document Management Technology
10/24/19 8:30 AM 10/25/19 1:00 PM CT Conference St. Louis, MO The Sedona Conference The Sedona Conference Working Group 1 Annual Meeting 2019
10/24/19 1:00 PM 10/24/19 2:00 PM ET Webinar ACEDS How Automating eDisclosure with Audio, Video & Native Document Translations Saves Time and Money
10/24/19 2:00 PM ET Webinar DATAVERSITY Data Modeling Best Practices – Business and Technical Approaches
10/24/19 4:00 PM 10/24/19 5:00 PM ET Webinar ACEDS How Automating eDisclosure with Audio, Video & Native Document Translations Saves Time and Money
10/24/19 5:30 PM PT Meeting ACEDS ACEDS Portland Chapter: October Social & Cocktail Reception
10/27/19 5:30 PM 10/30/19 12:30 PM MT Conference Phoenix, AZ ACC 2019 ACC Annual Meeting
10/28/19 8:00 AM 10/29/19 5:00 PM ET Conference Washington, DC The Masters Conference The Master’s Conference 13th Annual Washington, DC Event
10/28/19 8:00 AM 10/29/19 5:23 PM ET Conference Washington, DC The Masters Conference The Masters Conference 13th East Coast Event
10/29/19 1:00 PM 10/29/19 2:00 PM ET Webinar Today’s General Counsel Shielding Your Organization from Data Privacy Nightmares
10/29/19 2:00 PM 10/29/19 2:30 PM ET Podcast ACEDS Musings with Marc & Mary: Part Three
10/30/19 11/1/19 Conference Dublin, Ireland ITechLaw 2019 European Conference
10/30/19 11:30 AM 10/30/19 12:15 PM ET Webinar Concept Searching Trusted Staff and Partners? Think Again About Data Breaches
10/30/19 1:00 PM 10/30/19 2:00 PM ET Webinar ACEDS Practical Uses of Brainspace
10/30/19 1:00 PM 10/30/19 2:00 PM ET Webinar XDD Experience XDD’s Proprietary Mobile Discovery Solution
10/31/19 6:00 AM 10/31/19 7:00 AM ET Webinar Ankura Global Data Privacy Webinar – India Data Protection Bill and GDPR
10/31/19 2:00 PM ET Webinar Hanzo Emojis and the law: Real-world eDiscovery challenges of enterprise collaboration
11/4/19 7:00 AM 11/4/19 4:00 PM ET Conference New York, NY Information Management MDM & Data Governance New York
11/4/19 12:00 PM 11/6/19 12:45 PM PT Conference La Jolla, CA ALM Strategic Technology Forum US
11/5/19 8:30 AM 11/5/19 5:00 PM PT Conference Vancouver, Canada ADB Insights ABD Insights BC Legal Innovation Forum
11/5/19 9:00 AM 11/5 5;15 p BST Conference London, UK Thomson Reuters Events Legal & Technology Procurement Conference 2019
11/6/19 5:00 PM 11/6/19 7:00 PM CT Meeting Chicago, IL ACEDS *Save the Date* ACEDS Chicago Chapter: Q&A (topic TBD) and Concurrent CEDS Exam Study Group
11/7/19 8:30 AM 11/7/19 6:00 PM GMT Conference London, UK The Cowen Group SOLID London
11/7/19 1:00 PM 11/7/19 2:00 PM GMT Webinar ACEDS Manage DSAR Challenges through Workflow Optimisation and Automation

SEE PAST WEEKLY TREND REPORTS

ACEDS organizational announcement from Steve Fredette, BARBRI Group CEO Chapter (1)

ACEDS Fills Key Leadership Roles with eDiscovery and Legal Education Veterans

Michael Quartararo named president, ACEDS & professional development; Ari Kaplan named Chair of Global Advisory Board

EAGAN, Minn.Oct. 9, 2019 — Leading global eDiscovery education and certification provider, the Association of Certified e-Discovery Specialists (ACEDS), part of BARBRI, announced it has filled key senior leadership positions with renowned eDiscovery and legal experts.

Michael Quartararo, long-time ACEDS member, former law firm director, author and eDiscovery community leader joins as president, ACEDS & professional development, and leading legal industry analyst and author, Ari Kaplan has been named chair of the ACEDS Global Advisory Board.

In his new role, Quartararo will continue to build and foster the global eDiscovery community, growing and supporting the local chapters, and reinforce the reputation of the CEDS certification as the best-in-class eDiscovery certification. Additionally, he will work across BARBRI to leverage the company’s diverse suite of professional development resources to create new education solutions and certificate programs that meet the expanding needs of the ACEDS community.

Quartararo brings 20 years of legal technology and eDiscovery experience to ACEDS. For the past two years he has been consulting with law firms and corporate legal departments. Previously, he was the Director of Litigation Support for Stroock, and prior to that he led eDiscovery projects at Skadden Arps. He was instrumental in building the eDiscovery project management program at Bryan University. Quartararo is also the author of Project Management in Electronic Discovery, which merges project management principles with best practices in electronic discovery. Quartararo is a graduate of the State University of New York, a certified Project Management Professional (PMP) and a Certified E-Discovery Specialist (CEDS).

The addition of Kaplan marks a new era for the ACEDS Global Advisory Board, with a goal of growing this panel of experts to help guide the direction of and continue creating relevant solutions for the ACEDS community. Additionally, under Kaplan’s leadership, the Board will maintain its focus on ACEDS’ robust diversity and inclusion efforts.

Kaplan brings a reputation as a leading legal analyst and thought leader. Principal of Ari Kaplan Advisors, he is an attorney and an author of several books on the business of law. He is the principal researcher for several well-known and widely distributed benchmarking reports, is a frequent writer and speaker, and is the founder of Lawcountability, a business development platform for lawyers and law firms.

“I’m extremely pleased that the ACEDS leadership transition will be a smooth one,” BARBRI CEO Stephen Fredette said. “The organization has been well-served by our executive director, Mary Mack, and I look forward to Mike taking the organization to its logical next phase, leveraging the resources of BARBRI and continuing to serve our global members and community. We’re also committed to a resurgence of an active Global Advisory Board and I am confident that Ari’s leadership will be invaluable as we move forward.”

About ACEDS
The Association of Certified E-Discovery Specialists, part of leading legal education provider The BARBRI Group, is a global membership association committed to promoting and verifying e-discovery skills and competence for organizations and individuals through training and certification, and is supported by ACEDS chapters around the world. The association’s goal is to help professionals and organizations reduce the costs and risks associated with eDiscovery, and realize the advantages of performing it effectively. ACEDS awards the Certified E-Discovery Specialist (CEDS) credential, which is held by practitioners at Am Law 200 firms, government agencies, including the U.S. Securities and Exchange Commission and United Nations, and some of the largest multinational corporations in the world.

Businesswoman using smart phone,Social media concept

Ethics Rules for Using Social Media in Legal Matters

Social media is increasingly important in eDiscovery, employment investigations and jury research. Using social media in legal and HR matters raises significant ethical issues. Lawyers and other legal professionals should keep these five ethics rules in mind.

1. Familiarity with relevant social media is part of legal competence.

Competence is ethics rule number one – literally. ABA Model Rules of Professional Conduct Rule 1.1 reads:

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

All lawyers should be familiar with potential sources of relevant information in their area of practice. The areas of the law where social media evidence is most likely to be relevant are (in no particular order):

  • Employment
  • Personal injury
  • Intellectual property
  • Product liability
  • Defamation
  • Family law

In addition, technology competence for litigators requires a basic familiarity of the main types of electronically stored information. That includes social media content like messaging, posts and pictures.

2. Whatever the medium, the statement must be truthful.

Honesty is another fundamental rule. Rule 7.1 prohibits false and misleading statements about the lawyer or the lawyer’s professional services. We must be accurate, truthful and aboveboard when mining social media for information just as at all other times.

Lawyers should not make anonymous or pseudonymous social media posts when acting in a professional capacity. Partial truths also break the rule. For example, it’s misleading to leave a comment or send a connection request without disclosing the lawyer’s interest in the matter.

3. Don’t “friend” the opposing party on Facebook, and other rules about represented persons.

Rule 4.2 prohibits direct communication about a legal matter with interested persons who have their own lawyers. That includes witnesses and other third parties who are represented by counsel in addition to the opposing party.

Connection requests, private messages, follows, comments, likes and shares all qualify as communications under this rule. As a practical matter, most ethics opinions based on the represented parties rule stem from improper connection requests. The proper means of obtaining non-public social media content is through discovery, not by “friending” the opposing party. Using a company account or fake profile to send a connection request additionally runs afoul of Rule 7.1.

4. Know your state’s rules on jury research.

Lawyers also have ethical obligations towards people who aren’t represented by counsel, like potential and serving jurors.

Rule 4.3 reads, “In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested.” Unsurprisingly, judges and ethics boards alike frown on lawyers and parties interacting with jurors on social media. Friending to gain access to non-public content is definitely not allowed.

Some states are more restrictive than others on pre-trial research into potential jurors’ public social media content. My home state of Indiana permits juror research as long as the content is publicly available. By contrast, New York prohibits activity that will or might alert potential jurors that someone is looking at their information. Knowing how the different social media platforms operate is essential to comply with specific prohibitions; for example, that viewing a profile on LinkedIn can generate an auto-alert to the account owner.

5. Ethics starts at the top – but doesn’t end there.

Finally, lawyers must appropriately supervise staff and consultants. Rule 5.3 provides detailed guidance for supervision of non-lawyers employed or retained by a lawyer or law firm. The gist is that the entire legal team needs to follow the ethics rules for social media activity and communications.

On a general note, while state rules tend to follow the Model Rules cited in this post pretty closely, there are some variations in language and interpretation. Be sure and consult your own state’s rules of professional conduct and ethics opinions for further guidance.

Social media is characterized by communication and personal information. The attributes that make it a trove of useful information also create ethical pitfalls. Legal professionals should always approach social media with an ethics mindset.