Justice statue with code on monitor device in background

Beyond Competence: Technology and the Duties of Candor and Fairness in Litigation

Technology competence is an ethical requirement in more than 40 states. Beyond Rule 1 Competence, knowing technology helps lawyers comply with the duty of confidentiality and other rules of professional conduct. For litigators that includes the duties of candor and fairness.

Technology regularly meets the duty of candor in litigation

The duty of candor governs statements to the court. ABA Model Rule 3.3 Candor toward the Tribunal provides in pertinent part:

(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal.

These are some commonplace scenarios in discovery that illustrate the importance of electronically stored information (ESI), eDiscovery workflows and litigation technology:

  • Case management plan has a section for the parties’ electronic discovery statements, including ESI sources and anticipated use of technology assisted review (TAR);
  • Telephonic discovery conference is held to resolve a dispute over the production format of mobile data;
  • Motion to limit the scope of discovery based on proportionality factors such as cost and burden to collect and review voluminous ESI;
  • Motion for sanctions for spoliation of text messages and instant messages alleges insufficient legal hold notice and failure to disable auto-delete settings;
  • Expert report cites date- and timestamps from metadata for key documents;
  • Attempted clawback of unintentionally produced privileged documents hinges on the reasonableness of producing party’s review protocol and quality control measures.

Technology intersects with fairness at many eDiscovery stages

Where candor is a duty owed to the court, fairness is a duty owed to the opposing party and counsel. ABA Model Rule 3.4 Duty of Fairness intersects with eDiscovery in two subsections.

First, subsection (a) provides:

[A lawyer shall not] unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having evidentiary value.

The connection to preservation is obvious. Preservation failures, both unintentional and deliberate, consistently provide the most dramatic examples of lost discoverable data.

Spoliation can and does occur at other eDiscovery stages as well. In particular, metadata is easily altered during copying. It’s important to use defensible tools and processes during collection and processing. 

Second, subsection (d) provides:

[A lawyer shall not] in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party.

Today technology is part and parcel of complying with discovery requests.

On the left side of the Electronic Discovery Reference Model (EDRM), litigators must navigate the clients’ systems to identify and collect responsive data sources. On the right side, litigation technology is used to effectively and defensibly search, analyze and review ESI.

What litigators need to know about technology to satisfy the duties of candor and fairness

As lawyers we have an ethical duty to make honest and accurate statements to the court and reasonable efforts to comply with our clients’ discovery obligations. A pragmatic paraphrase is that we have to know what we’re talking about and what we’re doing.

Competence in these core areas of eDiscovery technology provides a solid foundation for candor and fairness in litigation:

  • ESI – main types and sources relevant to the lawyer’s practice area;
  • Metadata – what it is, how to use it and spoliation risks;
  • EDRM – at a minimum a high-level understanding of the stages and progression of the eDiscovery workflow;
  • Preservation – preservation in place vs. preservation collection, high-risk areas (e.g., auto-delete settings, BYOD, employee separation);
  • Collection – importance of forensically sound collection and risks of client self-collection;
  • eDiscovery tech tools – best practices for using review platforms, search tools and analytics;
  • Production format – basic terminology and common pitfalls.

Arguably the most significant eDiscovery trends of the last few years are exploding data volumes and proliferating data types. Litigation technology continues to develop rapidly in response. As both the problem and the solution technology is an inescapable part of discovery.

Socha's Weekly Trend Report

Socha’s Weekly Trend Report – July 27, 2020

Notes on recent trends in e-discovery, data privacy, and the use of technology to enhance the practice of law.

E-discovery

CategoriesDateEntries
E-Discovery07/24/2020Price continues to be a key factor driving whom legal clients choose to meet their e-discovery needs and legal departments continue to insource more work than ever, according to Ari Kaplan’s 6th annual E-Discovery Unfiltered: A Survey of Current Trends and Candid Perspectives report, wrote Rhys Dipshan of Legaltech news. For highlights, see the Ari Kaplan Advisors press release.
E-Discovery07/23/2020E-discovery software can be used for more than just e-discovery, as noted by Sharon Nelson of Sensei Enterprises in a post about how Maura Grossman and Gordon Cormack are deploying their TAR tools to help medical researchers find the information they need to accelerate progress in the study and treatment of COVID-19.
E-Discovery07/22/2020The Sedona Conference has published a public comment version of its Commentary on ESI Evidence & Admissibility, Second Edition. Comments should be submitted by Sept. 20.
E-Discovery07/22/2020Doug Austin of eDiscovery Daily has prepared a three-part series on discovery of “newer” types of ESI, on the Exterro website: Part 1 – social media; part 2 – mobile devices and messaging/collaboration apps; and part 3 – audio and video files, and the internet of things.
E-Discovery
Enhancing Practice
07/22/2020Valora has published a 10-page e-book on the basics of auto-classification covering what it is, file versus rich metadata, how auto-classification works, and practical ways to use it.
E-Discovery07/21/2020Doug Austin of eDiscovery Daily published a short primer on releasing legal holds, on the Ipro website.
E-Discovery07/21/2020Laura Clewley of Ricoh wrote about the challenges of trying to share content for review by sending PDFs or printing emails and offered seven topics to consider before moving in that direction.
E-Discovery07/20/2020Craig Ball has published an updated version of his “Perfect Preservation Letter”, reported Doug Austin of eDiscovery Today.

Enhancing practice

CategoriesDateEntries
Enhancing Practice07/27/2020Richard Tromans of Artificial Lawyer took a look at Gartner’s Legal Tech Hype Curve analysis for 2020, offering his thoughts on text analytics, e-discovery software, blockchain, smart contracts, chatbots, legal spend management, and predictive analytics.
Enhancing Practice07/23/2020The Surveillance Technology Overside Project published a report, Virtual Justice, that raises privacy and due process concerns about courts conducting business remotely via video and teleconferences, noted Bob Ambrogi of LawSites.
E-Discovery
Enhancing Practice
07/22/2020Valora has published a 10-page e-book on the basics of auto-classification covering what it is, file versus rich metadata, how auto-classification works, and practical ways to use it.
Enhancing Practice07/22/2020A Chicago Bar task force has proposed changes to the Rules of Professional Conduct that would permit lawyers to partner with non lawyers to provide legal tech solutions in Illinois, reported Sam Skolnik of Bloomberg Law.
Enhancing Practice07/21/2020In a Forbes article, Mark A. Cohen of Legal Mosaic discussed what recent Axiom, Deloitte, and UnitedLex announcements suggest about the future of the practice and business of law.
Enhancing Practice07/20/2020Andrea Alliston of Stikeman Elliott published an overview of document automation and how to get started with it.
Enhancing Practice07/17/2020Virtual civil bench trial went better than lawyers expected and might even be more efficient than traditional trials, reported Alaina Lancaster of Legaltech news.
Enhancing Practice07/01/2020The Australian government has rolled out an AI named Amica to help those getting divorced divide money and property and make appropriate parenting arrangements without hiring a lawyer, reported Nishit Raghuwanshi of Fossbytes Media.
Enhancing Practice07/01/2020FTI Consulting testifying expert A.J. Gravel offered insights on how experts and their attorney can best prepare for remote depositions. As one who has participated in remote depositions as an attorney and expert since the 1990s, I can vouch of the soundness of his recommendations.
Enhancing Practice06/15/2020The Pennsylvania Bar Association issued new guidance to attorneys working from home during the pandemic, Formal Opinion 2020-30. The opinion covers, among other things, an attorney’s duty of technological competence when handling sensitive client information in a home environment, reported John M. McNichols in an ABA publication.

Privacy

CategoriesDateEntries
Privacy07/23/2020The European Data Protection Board released an information note on Binding Corporate Rules applicable to groups of undertakings or enterprises that have the UK ICO as their competent supervisory authority, reported Yung Shin Van Der Sype, Paul Greaves, and Wim Nauwelaerts of Alston & Bird.
Privacy07/22/2020Regulator reactions in the immediate aftermath of Schrems II have included a statement and updated guidance from the UK Information Commissioner’s Office, a call from German data protection commissioner Maja Smoltczy for Berlin-based companies to return EU data currently stored in the U.S. back to the EU, and a statement from the European Data Protection Supervisor that it will continue to strive for a coherent approach among supervisory authorities regarding international transfers, reported Hunton Andrews Kurth.
Privacy07/21/2020According to a survey by Akamai, companies have been struggling to comply with CCPA at least in part because they have been slow to automate their processes, reported Rhys Dipshan of Legaltech news. More results of the survey were discussed by Veronica Combs of TechRepublic.
Privacy07/21/2020Recent survey data from Akamai found that trust and communication amongst businesses and consumers have increased by almost 60% as a result of privacy regulations, wrote Akamai’s Steve Winterfeld.
Privacy07/21/2020The California Privacy Rights Act of 2020 has qualified for California’s Nov. 2020 ballot, reported Shannon Yavorsky and Nicholas Farnsworth of Orrick. In their article they lay out the timeline for this legislation, which they describe as “CCPA 2.0”.
Privacy07/20/2020The European Data Protection Board published a statement on the outcome of the Schrems II judgment, acknowledging that the Privacy Shield no longer is available as a data transfer mechanism, calling for EU and US authorities to create a replacement legal framework, and providing insights into how companies should approach standard contractual clauses moving forward, reported Wim Nauwelaerts and Paul Greaves of Alston & Bird.

Additional articles

CategoriesDateEntries
E-Discovery07/23/2020Need to Channel Surf? Check Out the eDiscovery Channel!: eDiscovery Trends
Source: eDiscovery Today
Author: Doug Austin
E-Discovery07/23/20204 Data Management Trends Shaping Corporate Litigation
Source: Relativity
Author: Jim Neath (Morae)
E-Discovery07/23/2020Life After COVID 19: E-Discovery Considerations for Attorneys and Clients
Source: JD Supra
Author: Starling Underwood (Kilpatrick Townsend & Stockton)
E-Discovery07/21/2020Stellar Women in e-Discovery: Allyship with Altlaw
Source: Relativity
Author: Mary Rechtoris
E-Discovery07/20/2020Court Orders Plaintiffs to Correct Production Deficiencies and Tie Replacement to Previous Production: eDiscovery Case Law
Source: eDiscovery Today
Author: Doug Austin

Upcoming events

CategoriesTypesDatesTimesEntries
E-DiscoveryWebinar07/28/20201 pm ETA Proposed TAR Framework
Organization: ACEDS
Speakers: James C. Francis IV, Christine Payne (Redgrave), Michelle Six (Kirkland & Ellis), Suzanne Clark (eDiscovery CoCounsel), Chad Roberts (eDiscovery CoCounsel), Mike Quartararo (ACEDS)
E-DiscoveryWebinar07/28/20201 pm ETWhen to Use Conditional Coding
Organization: Nuix
Speakers: Emily Tice
E-DiscoveryWebinar07/28/20201 pm ETRedefining the Art & Science of Manual Review
Organization: EDRM
Speakers: Ian Campbell (iCONECT), Mike Fedorowski )iCONECT), Josh Gilliland (Bow Tie Law)
E-Discovery
Enhancing Practice
Webinar07/29/202011 am ETLooking Ahead: Lessons Learned for Investigations
Organization: Control Risks
Speakers: Michele Wiener, Michael Zimmern
Enhancing PracticeWebinar07/29/202012:30 pm AEDTWinds of change: Why barriers to legal transformation are falling away (for good?)
Organization: Neota Logic
Speakers: Madeline Oldfield, Tuna Kutsal (Herbert Smith Freehills)
Enhancing PracticeWebinar07/29/20201 pm ETEthical Considerations and Use of AI to Identify Personal Health Information
Organization: EDRM
Speakers: Mallory Acheson, Lucie Cohen (Nelson Mullins)
E-DiscoveryWebinar07/29/20201 pm ETThe Evolving Court Requirements for E-Discovery Defensibility in Today’s Big Data Age
Organization: ACEDS
Speakers: Jennifer Feldman (DLA Piper), Ronald J. Hedges (Dentons), Mike Hamilton (Exterro)
E-Discovery
Enhancing Practice
Webinar07/29/20201 pm ETSlack for Legal Teams
Organization: Hanzo
Speakers: Brad Harris (Hanzo), Mark Pike (Slack), Ellen Blanchard (TMobile), Megham Brosnahan
E-DiscoveryWebinar07/29/20201 pm ETWhat’s New in Document Review: Best Practices for Conducting Effective, Secure Remote Reviews
Organization: Consilio
E-DiscoveryWebinar07/29/20201 pm ETGone Viral: Social Media in eDiscovery
Organization: XDD
PrivacyWebinar07/29/20202 pm ETPrivacy Shield fails to be Safe Harbor!
Organization: The Masters Conference
Speakers: Michael Simon, Tom Matzen (Matzen Consulting Group), Wayne Matus (SafeGuardGDPR), Debbie Reynolds
E-DiscoveryWebinar07/30/20201 pm ETE-Discovery Projects Thrive in the New Project for Web
Organization: ACEDS
Speakers: Nancy Pearce (Microsoft), Shawn Kim (Microsoft), Mike Quartararo (ACEDS)
Enhancing PracticeWebinar07/30/20202 pm ETMusings with Marc & Mary – “Adapting to the “New Normal”
Organization: EDRM
Speakers: Marc Zamsky (Compliance Discovery Solutions), Mary Mack (EDRM), Ryan Darby (Schiff Hardin)
Cybersecurity
E-Discovery
Privacy
Webinar08/04/20201 pm ETMasterclass: The Current and Future State of the Legal Technology Job Market
Organization: EDRM
Speakers: Jared Coseglia (TRU), Mary Mack (EDRM), Kaylee Walstad (EDRM)
Enhancing PracticeWebinar08/04/20201 pm ETFundamentals of Artificial Intelligence and Issues of Bias
Organization: ACEDS Detroit Chapter
Speakers: Maura R. Grossman (University of Waterloo)
Information GovernanceWebinar08/04/20201 pm ETThe Future of Data Retention: Employee Validation
Organization: Sapient
Speakers: Rick Wilson (Sherpa Software), Chris Bednar (Bain & Company)
E-DiscoveryWebinar08/04/20202 pm BSTThe Expanding Scope of the E-Discovery Professional
Organization: ACEDS
Speakers: Greg Wildisen (Panoram), Jonathan Maas (The Maas Consulting Group), James P. Mittenthal (Aon Cyber Solutions), Stuart Davidson (Exterro)
E-DiscoveryWebinar08/05/20201 pm ETACEDS Roundtable Series: Transitions, Transformations, and Triumphs in 2020
Organization: ACEDS
Speakers: Tom O’Connor (Gulf Coast Legal Technology Center), Dera Nevin (The Blackstone Group), Kenya Parrish-Dixon (TechCentrics), James Bickley (Ankura Consulting), Alvin Lindsay (Hogan Lovells)
E-DiscoveryWebinar08/05/20201 pm ETThe Key to a GSD In-House Team: Powerfully Simple Technology
Organization: ACEDS
Speakers: Robert Hilson, Todd Eastman (Logikcull)
PrivacyWebinar08/05/20201 pm ETPrivacy Law Update: GDPR, CCPA, CCPA 2.0, and Proposed State and Federal Legislation
Organization: Husch Blackwell
Speaker: David M. Stauss
E-DiscoveryWebinar08/05/20202 pm ETLessons Learned: Data Retention and Responding to Data Privacy Breaches
Organization: Law.com
Speakers: Natalie Salunke (RVU), Timiko Cranwell (Budweiser Brewing Group UK&I), Robert Fowler (Exterro), James Sherer (Baker & Hostetler)
Enhancing PracticeWebinar08/07/20201 pm ETEmerging Technologies and AI Impacts on Wage and Hour Compliance
Organization: Littler
Speakers: Natalie A. Pierce, Claire B. Deason
E-DiscoveryWebinar08/10/20201 pm ETThe COVID-19 Bankruptcy Boom: Preparing for Restructuring Discovery
Organization: Legility
Speakers: Christine Payne (Redgrave), Jason DeJonker (Bryan Cave Leighton Paisner), David Wesch (Legility), Eric Schultenover (Legility)
E-DiscoveryWebinar08/12/20201 pm ETResponding to Litigation Data Requests: Creating a Comprehensive Global Strategy
Organization: Exterro
Speakers: Paul Salazar (Siemens AG), David Yerich (UnitedHealth Group), David Cohen (Reed Smith ), Bryant Isbell(Baker McKenzie)
E-DiscoveryWebinar08/13/20201 pm ETDriving Efficiencies in Litigation Spend: Best Practices for Corporations
Organization: EDRM
Speakers: Tim Nendorf (OpenText), Patrick Kelley (Thomson Reuters), Mary Mack (EDRM)
E-DiscoveryWebinar08/13/20201 pm ETChecklist for Choosing an eDiscovery Solution
Organization: ACEDS
Speakers: Maura R. Grossman (University of Waterloo), Carolyn Anger (Anger & Associates), Jim Gill (Ipro)
E-DiscoveryWebinar08/18/20201 pm ETEffectively Conduct Corporate Investigations With eDiscovery
Organization: ACEDS
Speakers: Derrick Donnelly (BlackBag), Shahaf Rozanski (Cellebrite)
E-DiscoveryWebinar08/18/20202 pm ETNew Techniques for Finding Relevant Data Faster
Organization: EDRM
Speakers: Tara Jones (Verizon Media), Brett Tarr (Ernst & Young), Tiana Van Dyk (Epiq), Michael Hamilton (Exterro)
E-DiscoveryWebinar08/19/20201 pm ETACEDS Roundtable Series: Transitions, Transformations, and Triumphs in 2020
Organization: ACEDS
Speakers: Rachi Messing (Microsoft), Jeff Jacobson (Drinker Biddle & Reath), Julie Brown (Vorys, Sater, Seymour and Pease), Sonya Judkins (Sprint)
E-DiscoveryWebinar08/19/20201 pm ETOn the Case? eDiscovery Case Law Update for the First Half of 2020
Organization: HaystackID
Speakers: Doug Austin (eDiscovery Today), Ashish Prasad (HaystackID), Vazantha Meyers (HaystackID), Todd Haley (HaystackID), Seth Schechtman (HaystackID)
E-DiscoveryWebinar08/25/20201 pm ETSpecial Masters in Litigation
Organization: EDRM
Speakers: Maura Grossman (University of Waterloo), Hon. Ira Warshawsky (Meyer Suozzi), Hon. Frank Maas (JAMS), Hon. Kristen L. Mix (U.S. District Court, District of Colorado)
E-DiscoveryWebinar09/09/20201 pm ET5 E-Discovery Technology Trends to Watch and When to Buy
Organization: ACEDS
Speakers: Alayne Russom (Thrivent), Christa Haskins (BD), Mike Hamilton (Exterro)
Vancouver_ Chapter_Press Release

ACEDS Expands Presence, Launching Chapter in Vancouver, British Columbia

July 24, 2020 – EAGAN, Minn. – The Association of Certified E-Discovery Specialists (ACEDS), the world’s leading e-discovery training and certification professional association and part of The BARBRI Group, continues to expand its international presence with the launch of a new chapter in Vancouver, British Columbia, Canada. This is the Association’s second chapter to launch in Canada.

The ACEDS Vancouver Chapter, which will serve legal professionals throughout British Columbia, will establish an environment where members can collaborate on and discuss professional development, training and certification as well as issues in the legal industry impacting e-discovery professionals in Canada and the global legal community. Many Vancouver chapter members are Certified E-Discovery Specialists (CEDS) or are aspiring to earn their CEDS or the E-Discovery Executive (eDEx) certificate.

Among its activities, the chapter will organize networking opportunities, professional development events and training sessions, while also participating in local and global conferences and events working closely with other legal industry membership organizations. The chapter welcomes e-discovery, information governance, data privacy and other data management professionals in the Vancouver area, including law students, new graduates, young legal professionals, and seasoned legal professionals, and will assist aspiring CEDS in earning their certifications.

“After the launch of our Toronto chapter earlier this year, there was a tremendous response from the legal technology community in Canada to establish additional chapters in other regions of the country,” said Maribel Rivera, senior director of community relations at ACEDS. “We have a new board, a majority of which are certified e-discovery specialists, committed to the success of the Vancouver chapter. We are here to assist them—as well as all other chapters—to achieve their goals. The Vancouver board will utilize ACEDS’ global strategy and tools to apply them in the method best suited to the local community while fulfilling our mission.”

The Vancouver Chapter will be led by:
• Ann Halkett, CEDS, President
• Veronica MacInnis, Vice President
• Lisa Evenson, CEDS, Secretary
• Peter Sanford, Treasurer
• Fern Boese, CEDS, Director of Membership
• Monique Sever, Director of Marketing
• Yvonne Van Vliet, CEDS, Director at Large

“Vancouver is a leading world city that can now add a centre of e-discovery education excellence with the Vancouver chapter of ACEDS – the world standard for e-discovery training and certification,” Halkett said. “What better way to show your employer that you are serious about your future than to join the chapter. Knowledge is power and education is the source of that power.”

“In a field such as e-discovery the most important thing one can do for their career and self is to stay connected and continuously educate themselves in best practices and new innovations,” added MacInnis. “Vancouver already has a wonderful e-discovery community and now we will add to this our very own ACEDS Chapter, which will help all of us grow, learn and connect.”

To learn more about the Vancouver chapter, subscribe to receive news and updates from ACEDS, or contact the association at chapters@aceds.org.

About ACEDS
The Association of Certified E-Discovery Specialists (ACEDS), part of leading legal education provider The BARBRI Group, is a global member-based association for professionals who work in e-discovery, information governance, compliance and the broader legal community. ACEDS provides training and certification in e-discovery and related disciplines to corporate legal departments, law firms, the government, service providers and institutions of higher learning. Our CEDS certification is recognized around the world and used to verify skills and competence in electronic discovery for organizations and individuals through training, certification and ongoing education. The CEDS credential is held by practitioners at the largest Fortune 500 companies, Am Law 200 firms and government agencies. ACEDS has 23 chapters, with locations in most major U.S. cities, the UK, Ireland, Canada, the Netherlands and South Africa (with Australia and South America chapters coming soon). Our goal is to help professionals and organizations reduce the costs and risks associated with e-discovery while helping to improve and verify their skills and advance their careers and overall technology competence in e-discovery and related fields. http://www.aceds.org/

FOR IMMEDIATE RELEASE
Contact:
Cindy Parks
913.526.6912
cindy@parkscommunications.com

eDiscovery Considerations with Business Use of Zoom

eDiscovery Considerations with Business Use of Zoom

As companies nationwide shifted from in person to remote working overnight, there has been a concurrent increase in the use of video conferencing tools to collaborate internally and interact with clients. There are many different video conferencing tools currently experiencing a huge uptick in usage including Microsoft Teams, Cisco WebEx, Skype, and the focus of this article, Zoom.

The number of daily meeting participants in Zoom jumped from 10 million in January to 300 million in April, a nearly 3000% increase in three months. It is evident from these numbers that Zoom usage has increased exponentially as companies have had to shift to a new way of working. As with any electronic data, any new source of data a company is using must be carefully considered in terms of retention policies and potential legal obligations.

The use of Zoom as a business communication tool was likely implemented quickly and without enough time to consider all the potential eDiscovery implications. Consider Zoom as a new source of electronic data, like mobile phones, or Slack, or social media. It is important to understand what kind of data is being created and how that data should be handled. Additionally, because Zoom allows individual users to record meetings, the location of the data can also become very important. The bottom line is that Zoom is creating discoverable data. The goal of this article is to advise on the potential eDiscovery issues that could arise if a comprehensive and clear policy around the use of Zoom is not created and implemented now. 

Zoom Meetings that Are Not Recorded

Most companies can clearly see data containment issues if video is being preserved. But what if a Zoom meeting is not recorded? It is important to understand what types of records are being created when the meetings are not recorded to understand how it could impact discovery obligations in the future. Any time that a zoom meeting occurs, Zoom retains a record of that meeting. As a basic user, you can view under the Meetings tab, a record of every Zoom meeting that you have scheduled or attended. The information contained on that tab includes the date, time, meeting ID, and title of the meeting. This area also allows the individual user to delete a meeting from their history. From a discovery and collection perspective, this information would be both hard to collect and not substantively very useful.

Administrators and owners of the account, however, have much deeper visibility into their organization’s usage of the platform. An administrator can view monthly reports on every Zoom meeting that has occurred, regardless of whether the meeting was recorded. Under the Reports tab, and then under Usage Reports, the Administrator can view and export daily usage reports that identify the number of new users, meetings, participants, and total of meeting minutes for each day. They can also drill down further for reports on their Active hosts and export a meeting report for any 30-day period of all the meetings that an organization has conducted over Zoom.

On this report is some particularly valuable information including the topic of the meeting, meeting ID, the user who set up the meeting, the email of that user, department, group, creation of the meeting time, start and end time of the meeting, duration of the meeting, the name and email addresses of the attendees, join time and leave time for each participant, along with duration. Administrators are also able to export reports about inactive users, upcoming events, meeting registration or poll reports, and an overview of the cloud recording storage capacity. These reports can be retrieved for the previous twelve months limited by a 30-day search range. The reports are exported as CSVs. The only way for an administrator or owner to delete the usage activity is to delete the user. Deleting a user will permanently remove the user, including their meetings and recordings from Zoom. 

Although the information that is retained for non-recorded meetings is not as expansive as a recorded meeting would be, there are many situations in which the failure to retain this data could run counter to preservation obligations. Federal and most local rules of civil procedure allow discovery regarding any non-privileged information relevant and proportional to the needs of the case. Depending on the litigation, a spreadsheet outlining that certain people were attending certain meetings on certain dates could be relevant. Companies need to be cognizant of the way this information is being maintained, saved, and collected to ensure they can comply with discovery obligations later. 

Zoom Meetings that Are Recorded

Zoom also allows for the recording of meetings, either locally to the computer or to the cloud. When a meeting is recorded, the following files are created: MP4 video file; M4A audio file; and a txt file of any chats that occurred during the meeting. Zoom also offers the ability to transcribe the meetings so you have a text record of what was said during the meeting. If you enable the audio transcript option under Cloud Recording, Zoom will automatically transcribe the audio of the meeting and include a separate .vtt text file. In addition to the data preserved for any meeting outlined above, these are additional data sources created by the Zoom meetings that are recorded. Zoom will retain the cloud recordings, including the files listed above, until the storage capacity of the account is exceeded. Administrators can access and preserve any cloud stored meetings. These meetings are located under the Account Management, Recording Management area of the Administrator profile. However, the administrator can only access the recordings that have been stored to the cloud.

Depending on the account settings, as determined by the administrator or owner of the account, individual users or participants are also able to locally store recorded copies of their meetings. This means that anyone who attends a meeting can keep a permanent copy of the meeting’s audio, video, and chat. From a discovery perspective, this is a data mapping nightmare. If you have a company with 50 people who are using Zoom on a daily basis to conduct business, and each one of those people is recording all their meetings locally, there are now 50 locations that could contain discoverable data. Picture the costs associated with collecting 50 different people’s local zoom recordings folder from their work or personal computer?

Companies should be proactively thinking about what types of meetings need to be recorded and providing constructive guidance to their employees. There are industries where there is a legal obligation to record transactions such as banking and publicly traded companies. There are industries where recording communications with clients can turn into an ethical morass, such as law firms or in-house counsel at a corporation. Obviously, there is no one size fits all approach to the duty to record or not. Another area to consider is whether you have employees that despite retention and compliance policies are still creating unauthorized recordings. If your company gets sued, and those recordings fall under the relevance and proportionality rules, how are you going to locate and preserve that information?

The major question that should be considered and outlined clearly in policies is the types of meetings that should be recorded. The second is when or if you should delete these recordings. If you hold a Zoom meeting where senior leadership is discussing the termination of an employee that could potentially turn litigious, are you under an obligation to record that because there is a reasonable anticipation of litigation and the duty to preserve applies? There is no clear-cut answer to that question as these cases have not yet been litigated. However, companies should be carefully considering how, when, and why they deploy the recording function.

From an eDiscovery perspective, the Zoom recordings create an expensive proposition. Consider the example outlined above, if you have 50 relevant recordings and they are all located on each person’s individual computer, the company must then go and collect and process all of these files into a platform so they can review. Video and audio files typically are very large file sizes which makes the hosting of this data expensive. Complicating matters further, if a user does not opt for a transcript of the meeting, the video and audio files require significant customization to be searchable. How will a company know if a specific meeting is subject to a legal hold if you can’t text search the content of that meeting?

Best Practices and Considerations

Next, we want to outline some best practices and considerations surrounding the use of Zoom in a business context. Companies should, if they have not already, be drafting and implementing policies regarding the usage of Zoom. These policies should encompass when and how Zoom should be used, when the meetings should be recorded, and where the recordings should be stored. Companies should also be authorizing the Zoom administrators to create system wide permission settings to ensure that the data they retain is contained in one central repository. Employees should not be able to save locally, rather a universal save to the cloud requirement should be enforced. An administrator can enforce company-wide objectives for all users that require how and when they record and where that recording is stored. As administrators can also delete recordings on the cloud, they should be provided with clear instruction of what should be saved and what can be deleted. This way companies can easily identify and collect potentially discoverable information.

Administrators should be cognizant of the timelines for deletion previously outlined, and ensure they download any available reports or recordings monthly. They should also be aware of the storage capacity in Zoom so potentially relevant data is not accidentally lost. It would also be beneficial for companies to create an audit log for meetings that occur and ensure that employees update continuously. The audit log would contain the date, time, attendees, and what was discussed. Adding transcription to recorded meetings will also make the information far more searchable and functionally useable in the future.

As we have outlined, there are many business decisions that must be developed around the use of Zoom to collaborate. Companies should be proactively providing guidance to their workforce around the use of these types of applications. We can provide further guidance on best practices.

Compliance theme with woman working on a laptop

The Impact of Technology Certifications on Your Career

ACEDS Advisory Board Chair, Ari Kaplan, spoke with Tom O’Connor, a nationally-recognized consultant, speaker, and writer in the field of computerized litigation support systems, who is also a member of the global advisory board for ACEDS, and discussed why professionals seek certifications, the challenges associated with obtaining one, their impact on one’s career, and how they are evolving.

Listen to the full interview here

Calculating Machine

A Growing Concern? Budgetary Constraints and the Business of eDiscovery

Editor’s Note: The results of the recent Summer 2020 eDiscovery Business Confidence Survey present the continuing impact of COVID constraints on the business of eDiscovery. However, for these pandemic-driven results and their potential impact on the business of eDiscovery to be fully understood, they should be viewed through the contextual lens of the results of all nineteen surveys that have been administered to eDiscovery professionals since the inception of the eDiscovery Business Confidence Survey in early 2016.

Budgetary Constraints: A Current Concern for eDiscovery Professionals

The eDiscovery Business Confidence Survey is a nonscientific 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, the survey has been administered nineteen times with 2,189 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. The latest survey was administered in the summer of 2020 and had 100 respondents in roles that included tactical execution (40%), operational management (30%), and executive leadership (30%). Industry segments represented in the survey included software and service providers (31%), law firms (28%), consultancies (22%), corporations (12%), governmental entities (4%), media and research professionals (1%), and others (2%). One of the questions in the quarterly survey asks participants to select from a listing of six choices the issue they view as potentially having the most impact on their eDiscovery business during the next six months. The issues presented include:
  • Budgetary Constraints
  • Data Security
  • Inadequate Technology
  • Increasing Types of Data
  • Increasing Volumes of Data
  • Lack of Personnel
While not all-inclusive, the listing of issues provides a realistic overview of potential areas that appear to have a direct and ongoing impact on the business of eDiscovery. Based on the aggregate results of past surveys, the following findings and charted overviews of responses to the question of issues impacting business may be helpful in understanding the collective mindset of many industry experts regarding these issues and their impact on the business of eDiscovery.

Six Key Findings in the Summer of 2020

  • In the summer of 2020, 56% of respondents viewed budgetary constraints as potentially having the greatest business impact on their business in the next six months. This percentage is the highest of all concerns represented in the survey and also is the highest rating for any business performance concern since the inception of the survey. This is also the eleventh time in nineteen surveys that the issue of budgetary constraints has been the top concern or tied for the top concern by survey respondents. (Charts 1,2, and 3)
  • The percentage of respondents that viewed increasing types of data as a top business concern increased strongly in the last quarter from 8.1% in the spring of 2020 to 14% in the summer of 2020. This is a solid rebound from spring 2020 which had the lowest rating in the category since the inception of the survey. (Chart 4)
  • Increasing data volumes continue to be a consistent concern for eDiscovery professionals with 14% of summer survey respondents viewing data volume challenges as potentially having a substantial impact on business in the next six months. However, the level of respondent concern in this area is the lowest since the inception of the survey. (Chart 5)
  • The percentage of respondents viewing the impact of data security as a top business issue decreased slightly from the last quarter and is now viewed as the top concern by 7% of survey respondents. The level of respondent concern in this area is also the lowest since the inception of the survey. (Chart 6)
  • The impact of a lack of personnel on eDiscovery business performance decreased during the last quarter and is the top concern for only 6% of survey respondents. (Chart 7)
  • In the summer of 2020, the impact of inadequate technology as the top business issue decreased by 2.2% from the last quarter and is now viewed as the top concern by only 3% of survey respondents. This is the lowest rating of any business performance impact concern in the summer 2020 survey. It is also is the seventeenth time in nineteen surveys that the impact of inadequate technology has been rated as the lowest area of business performance concern by survey respondents. (Chart 8)

Considering Nineteen Quarters of Results from 2016 to 2020

From a top issue perspective, the following potential issues and the number of quarterly times they have been considered the top concern by survey respondents is shared to create context as to the cyclical concerns of eDiscovery professionals.
  • Budgetary Constraints: The top concern eleven times in nineteen quarters (3x Winter*, 3x Spring, 3x Summer, 2x Fall).
  • Increasing Volumes of Data: The top concern six times in nineteen quarters (2x Winter*, 2x Spring, 1x Summer, 1x Fall).
  • Increasing Types of Data: The top concern three times in nineteen quarters (1x Winter, 1x Summer, 1x Fall).
  • Data Security: Never ranked as the top concern.
  • Lack of Personnel: Never ranked as the top concern.
  • Inadequate Technology: Never ranked as the top concern.
* Top concern tie between Budgetary Constraints and Increasing Volumes of Data in the Winter of 2017.

Survey Charts

(Charts Can Be Expanded for Detailed Viewing)
Chart 1: An Aggregate Overview of Issues Impacting eDiscovery Business Performance 1 – Issues Impacting eDiscovery Business Performance – Summer 2020

 
Chart 2: An Overview of Issues Impacting eDiscovery Business Performance in the Summer of 2020 2 – Issues Impacting eDiscovery Business Performance – Summer 2020

 
Chart 3: An Overview of the Percentage of Respondents Viewing Budgetary Constraints as the Top Issue Impacting eDiscovery Business 3 – Impact of Budgetary Constraints on eDiscovery Business – Summer 2020

 
Chart 4: An Overview of the Percentage of Respondents Viewing Increasing Types of Data as the Top Issue Impacting eDiscovery Business 4 – Impact of Increasing Types of Data on eDiscovery Business – Summer 2020

 
Chart 5: An Overview of the Percentage of Respondents Viewing Increasing Volumes of Data as the Top Issue Impacting eDiscovery Business 5 – Impact of Increasing Volumes of Data on eDiscovery Business – Summer 2020

 
Chart 6: An Overview of the Percentage of Respondents Viewing Data Security as the Top Issue Impacting eDiscovery Business 6 – Impact of Data Security on eDiscovery Business – Summer 2020

 
Chart 7: An Overview of the Percentage of Respondents Viewing Lack of Personnel as the Top Issue Impacting eDiscovery Business 7 – Impact of Lack of Personnel on eDiscovery Business – Summer 2020

 
Chart 8: An Overview of the Percentage of Respondents Viewing Inadequate Technology as the Top Issue Impacting eDiscovery Business 8 – Impact of Inadequate Technology on eDiscovery Business – Summer 2020

 

Running Listing of Survey Results


Chart 9: Survey Participant Overview 9 – Survey Respondents (Individual and Aggregate Overview) – Summer 2020
Additional Reading Source: ComplexDiscovery
Socha's Weekly Trend Report

Socha’s Weekly Trend Report – July 20, 2020

Notes on recent trends in e-discovery, data privacy, and the use of technology to enhance the practice of law.

Announcements

CategoriesDateEntries
Announcements
E-Discovery
07/16/2020Xact Data Discovery (XDD) announced the launch of its new XDD-360 Technology Suite.
Announcements
Enhancing Practice
07/15/2020NetDocuments announced the introduction of NetKnowledge powered by BA Insight, designed to make all content stored in NetDocuments part of a customer’s enterprise search.
Announcements
E-Discovery
07/14/2020Morae Global Corporation and The Stephen James Partnership announced they have teamed up to provide e-discovery and document review in the UK legal market.
Announcements
E-Discovery
07/14/2020Exterro announced that its Slack integration had been approves as a Slack App and the company had been included in the Slack E-Discovery Partner ecosystem.
Announcements
E-Discovery
07/14/2020Xact Data Discovery (XDD) announced the acquisition of LightSpeed Legal, an eDiscovery services company based in Washington, DC.
Announcements
Enhancing Practice
07/13/2020Deloitte announced the launch of its Legal Business Services practice in the U.S., a suite of legal management consulting and technologically-enabled legal managed services for corporate legal departments designed to accelerate the transformation of the business of law.
See also The Talent in Deloitte’s New Legal Business Practice Has ALSP Roots, Frank Ready, Legaltech news.
Announcements
E-Discovery
07/13/2020Aureus Tech Systems announced it has integrated its e-discovery platform with Microsoft Azure and Azure AI.

E-discovery

CategoriesDateEntries
E-Discovery07/17/2020After looking at 444 decisions where parties moved for sanctions, Kelly Twigger and her colleagues at eDiscovery Assistant shared a key observation: Many parties bringing these motions are wasting time and money and court resources on motions that are guaranteed to fail.
Announcements
E-Discovery
07/16/2020Xact Data Discovery (XDD) announced the launch of its new XDD-360 Technology Suite.
Announcements
E-Discovery
07/14/2020Morae Global Corporation and The Stephen James Partnership announced they have teamed up to provide e-discovery and document review in the UK legal market.
Announcements
E-Discovery
07/14/2020Exterro announced that its Slack integration had been approves as a Slack App and the company had been included in the Slack E-Discovery Partner ecosystem.
Announcements
E-Discovery
07/14/2020Xact Data Discovery (XDD) announced the acquisition of LightSpeed Legal, an eDiscovery services company based in Washington, DC.
Announcements
E-Discovery
07/13/2020Aureus Tech Systems announced it has integrated its e-discovery platform with Microsoft Azure and Azure AI.
E-Discovery07/07/2020In a Law260 article, Jessica Brown and Collin James Vierra of Gibson Dunn addressed how companies using channel-based platforms such as Slack can manage the use of those platforms and the data to be well-positioned for when those platforms become subject to discovery.
E-Discovery
Enhancing Practice
07/06/2020In an ACEDS Blog post, Helen Geib of Hoover Hull Turner gave an overview explanation of lawyers’ duty of competence in three areas: legal practice tech tools, data security, and e-discovery.

Enhancing practice

CategoriesDateEntries
Announcements
Enhancing Practice
07/15/2020NetDocuments announced the introduction of NetKnowledge powered by BA Insight, designed to make all content stored in NetDocuments part of a customer’s enterprise search.
Enhancing Practice07/14/2020Telecoms giant Vodafone has begun providing access to “legal services” for its 500,000 business customers through a partnership with Sparqa Legal, a web-based platform, reported Richard Tromans of Artificial Lawyer. Vodafone’s business customers sign up to the Sparqa Legal platform and receive credit toward customisable legal contracts and documents.
Announcements
Enhancing Practice
07/13/2020Deloitte announced the launch of its Legal Business Services practice in the U.S., a suite of legal management consulting and technologically-enabled legal managed services for corporate legal departments designed to accelerate the transformation of the business of law.
See also The Talent in Deloitte’s New Legal Business Practice Has ALSP Roots, Frank Ready, Legaltech news.
Enhancing Practice07/13/2020In an Above the Law article, Bob Ambrogi discussed four ways in which law librarians play an essential role when it comes to helping lawyers make effective use of technology: as gatekeepers, guides, ethicists, and interpreters.
Enhancing Practice07/13/2020Six international law firms have begun developing a protocol to help deliver a globally consistent approach to the use of online case management platforms for conducting disputes, reported Caroline Hill of Legal IT Insider.
Enhancing Practice07/13/2020Some law firm partners fear AI is damaging junior lawyers’ skills, reported Hannah Roberts of Legal Week.
Enhancing Practice07/07/2020Chris Plauschinn of Ricoh ranked the level of security of six popular messaging platforms, from least secure to most: text messages, email, Facebook Messenger, WhatsApp, Telegram, and Signal.
E-Discovery
Enhancing Practice
07/06/2020In an ACEDS Blog post, Helen Geib of Hoover Hull Turner gave an overview explanation of lawyers’ duty of competence in three areas: legal practice tech tools, data security, and e-discovery.

Privacy

CategoriesDateEntries
Privacy07/17/2020The first wave of CCPA litigation has begun, reported Alysa Zeltzer Hutnik, Paul A. Rosenthal, Tara Marciano, and William Pierotti of Kelley Drye.
Privacy07/16/2020On July 16, 2020, in Schrems II, the Court of Justice of the European Union ruled that the EU-US Privacy Shield program was invalid but at least for now at least partially upheld the use of standard contractual clauses. Quite a few law firms have commented on this. Here is a sampling:
Privacy07/16/2020The California AG has begun CCPA enforcement, reported Jeewon Serrato, Andreas Kaltsounis, and Stanton Burke of BakerHostetler.
Privacy07/14/2020The California Attorney General’s office sent its first set of CCPA enforcement letters on July 1, reported Malia Rogers and David Stauss of Husch Blackwell.
Privacy07/14/2020Hunton Andrews Kurth’s Centre for Information Policy Leadership has prepared a paper, Data Subject Rights under the GDPR in a Global Data Driven and Connected World, that looks at how data subject rights should be applied.

Additional articles

CategoriesDateEntries
Additional Article
E-Discovery
07/14/2020EDRM Headline News
Source: EDRM
Authors: Mary Mack and Kaylee Walstad
Additional Article
E-Discovery
07/14/2020Stellar Women in e-Discovery: Susan Wortzman
Source: Relativity
Author: Mary Rechtoris
Tempo - One

A Change in Tempo? eDiscovery Operational Metrics in the Summer of 2020

The Kinetics of Three eDiscovery Business Metrics in the Summer of 2020

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 includes the following three optional questions focused on the business operational metrics of days sales outstanding (DSO), monthly recurring revenue (MRR), and revenue distribution across customer bases.

  • How would you characterize the trajectory of your organization’s Days Sales Outstanding (DSO) during the last quarter? DSO represents the average number of days it takes credit sales to be converted into cash, or when a company’s account receivables can be collected.
  • How would you characterize the trajectory of your organization’s Monthly Recurring Revenue (MRR) during the last quarter? MRR is income that a company can reliably anticipate every 30 days. Revenue from one-time purchases billed at the time of purchase is not included in MRR.
  • Which of the following statements best describes the distribution of your organization’s revenue across your customer base during the last quarter? Distribution is the reduction of revenue concentration across the customer base. The customer base is the group of customers who repeatedly purchase the products or services of a business.
Survey participants were presented with four potential answers to the optional business operational metric questions and asked to select one. The choices were as follows:
  • Increasing
  • Unfluctuating
  • Decreasing
  • Do Not Know
The three optional questions regarding business operational metrics were introduced into the quarterly eDiscovery Business Confidence Survey during the winter 2019 survey and to date, almost 900 individual responses to these optional questions have been received over the course of seven surveys. The aggregate results of the answers to the business operational metric questions are shared in the following observations and charted overviews. They provide an interesting vector view of the trajectories of these important measurements and the results may also be helpful to business and legal professionals as they consider the current conditions and trends in the business of data and legal discovery.

Key Observations in the Summer of 2020

General
  • In the summer of 2020, 91 eDiscovery Business Confidence Survey participants chose to answer at least one of the optional business operational metric survey questions in the quarterly survey. This represents a strong number of participants given the summer survey was limited to 100 total responders to balance against the recent proliferation of new industry surveys and communications initiated during the current pandemic.
  • In the summer of 2020, 91% of eDiscovery Business Confidence Survey participants chose to answer at least one of the optional business operational metric questions in the quarterly survey. This is an increase in percentage from the 87.2% of participants answering the optional business operational metric questions in the spring of 2020 survey.
  • In the summer 2020 survey, between 28.9% and 39.6% of the respondents (depending on the question) did not know whether DSO, MRR, or distribution of customer revenue-based measures were increasing, unfluctuating, or decreasing.
Days Sales Outstanding (Chart 1)
  • Exactly 20.9% of survey respondents reported DSO as increasing in the summer of 2020. This is an increase from 19.3% reporting DSO as increasing in the spring of 2020. This is also the highest percentage of respondents reporting DSO as increasing since the introduction of operational metric questions into the business confidence survey.
  • There was an increase (1.1%) in the summer 2020 percentage (23.1%) of respondents reporting DSO as unfluctuating when compared to spring 2020 reporting (22%). This is the third-lowest percentage of respondents reporting DSO as unfluctuating since the introduction of operational metric questions into the business confidence survey, with the lowest being the 22% reported in the spring 2020 survey.
  • 16.5% of survey respondents reported DSO as decreasing in the summer of 2020. This is a slight increase from reporting in the spring of 2020 when 15.3% of respondents noted decreasing DSO.
Monthly Recurring Revenue (Chart 2)
  • There was a strong increase (11.4%) in the summer 2020 percentage (26.7%) of respondents reporting increasing MRR when compared to spring 2020 reporting (15.3%). This represents a strong quarter over quarter growth from the spring of 2020 when the lowest percentage of respondents reporting MRR as increasing since the introduction of operational metric questions into the business confidence survey occurred.
  • There was a solid decrease (6.4%) in the summer 2020 percentage (18.9%) of respondents reporting MRR as unfluctuating when compared to spring 2020 reporting (25.3%)
  • Just under 26% (25.6%) of survey respondents reported Monthly Recurring Revenue (MRR) as decreasing in the summer of 2020. This is a slight decrease from the 26% reporting MRR as decreasing in the spring of 2020 and is the second-highest percentage of respondents reporting MRR as decreasing since the introduction of business operational metric questions to the eDiscovery Business Confidence Survey in the winter of 2019.
Distribution of Revenue Across Customer Base (Chart 3)
  • The percentage of survey respondents reporting an increasing distribution of revenue across their customer base increased (4.2%) between the spring of 2020 (16%) and the summer of 2020 (20.2%). This is also the second-lowest percentage of respondents reporting increasing distribution of revenue across their customer base since the introduction of operational metric questions into the business confidence survey.
  • There was a decrease (3%) in the summer 2020 percentage (27%) of respondents reporting the distribution of revenue across their customer base as unfluctuating when compared to spring 2020 reporting (30%). This is also the second-highest percentage of respondents reporting unfluctuating distribution of revenue across their customer base since the introduction of operational metric questions into the business confidence survey.
  • There was also a slight decrease (0.7%) in the percentage of survey respondents reporting a decrease in revenue distribution across their customer base, with 18% reporting a decreasing distribution of revenue in the summer of 2020. This is also the second-highest percentage of respondents reporting decreasing distribution of revenue across their customer base since the introduction of operational metric questions into the business confidence survey.
Survey Charts (Charts Can Be Expanded for Detailed Viewing)
Chart 1: An Aggregate Overview of Days Sales Outstanding (DSO) Trajectory 1-Days-Sales-Outstanding-Summer-2020

Chart 2: An Aggregate Overview of Monthly Recurring Revenue (MRR) Trajectory 2-Monthly-Recurring-Revenue-Summer-2020

Chart 3: An Aggregate Overview of Distribution of Revenue Across Customer Base 3-Customer-Distribution-Summer-2020

Running Listing of eDiscovery Business Confidence Survey Results

Additional Reading Source: ComplexDiscovery
sharing smart location on a smart phone

The Data Most People Don’t Know Exists

Technology has transformed our world, mostly for the better. We can take a road trip without a map in hand, get groceries delivered to our homes and keep track of our physical activity level in real time. But the tradeoff is that the devices we rely on are constantly collecting data about us — including some types of information that we never even think about.

In legal matters, all this collected information has great potential value, as attorneys can use it to establish guilt or innocence in legal matters. Let’s look closer at a few of the different types of data that we may not realize is being retained by our devices:

iPhone data collection

A number of different smartphone apps — Google Maps and Waze, for example — require access to users’ locations in order to be useful. Though some of these apps do continue to track users when they’re not in use, they often offer users an easy way to adjust that if they prefer. However, iPhones also track users using a separate feature that’s set to “on” by default. It’s the reason your phone always magically seems to know what time zone you’re in. (If you want to switch the feature off, you can go to Settings → Privacy → Location Services → System Services.)

One way in which iPhones are unique is that they provide information we need before we even realize we need it. It’s a convenience when my phone tells me the estimated drive time to work as I get into my car in the morning. And how many of us have realized, with great relief, that we can use the Find My feature to locate a missing device? Both of these features use location data, which, in a legal matter, could potentially be used as evidence to help establish either guilt or innocence.

Forensics professionals can extract a phone’s location history and use the data and metadata to place its user at a specific place at a certain time — either providing an alibi or disproving one. Some of this data, by the way, can be viewed with your phone’s System Services menu (tap on Significant Locations for a list of frequently visited places).

Android phones and Google

Android phone users aren’t immune to having their location data secretly collected — it’s just that the data is collected in a slightly different way. Because Android phones require users to create a Gmail account, any information the phones collect goes back to Google. Google also records the activity of people who use Google Maps and the company’s Chrome browser, tying the information to those Gmail accounts. CNBC estimates that there are around 1.5 billion active Gmail accounts in the world — about 40 percent of the total number of email users worldwide.

Google collects about 50 categories of user data in total. A few examples:

  • Web searches and browser history
  • YouTube viewing history
  • Previous locations
  • Credit card numbers and shopping information
  • Health activity provided by connected fitness devices
  • Audio recordings of voice commands used with smart speakers

If you’re interested in seeing the activity that your Android device has stored, go to Settings → Google → Google Account → Data & Personalization → Activity & Timeline → My Activity.

Data on the internet

In addition to the data we leave on our personal devices, we share data on the internet — sometimes intentionally — for instance, on websites that require visitors to agree to some kind of privacy policy — and sometimes not. Take a look back through your Facebook or Twitter timeline and you might be surprised at what you’ve shared with friends or even the public without realizing it. Both of those social media platforms have a 30-day deletion policy, meaning that a deleted user account and all its information are preserved for 30 days before being removed.

Social media content can be tremendously useful in legal matters, but those managing the electronic discovery process must take steps to preserve any relevant information before the 30-day window passes. If too much time passes and the data is removed, a court request or a subpoena might be required to get access to it, assuming that it’s even attainable. However, the action of deleting data could be used in court to help establish knowledge of guilt, leading to a court victory by itself in some circumstances. To have your best chance at using social media data during litigation, try to be aware of the privacy policies of websites where the data could exist.

Advice for attorneys

Forensics professionals are the undisputed experts in tracking down and using data in a legally defensible way, so turn to them with any questions involving digital evidence in legal matters. If you’re an attorney working on a case in the discovery phase, here are four general guidelines to keep in mind:

  1. If it’s connected to the internet, it can be forensically collected: All of us have some amount of personal data on our phones and in the cloud. Even home devices like video doorbells or gaming consoles can contain information about user activity that might be relevant in a legal matter. Don’t automatically assume that this data isn’t retrievable. Make sure to ask a forensics professional about what data sources might be most relevant to your case and what evidence they might contain.
  1. Urgency is key: Just because certain data is available now doesn’t mean it always will be as easily accessible. As soon as you become aware of digital evidence of any kind, be sure to issue a legal hold so that it can’t be deleted. Depending on a device’s settings, data is usually retained for a certain amount of time, then gradually overwritten. A user might choose for their device to auto-delete text messages after 30 days, or even a shorter time period. Some messaging apps allow for irrevocable deletion, so even if a legal team discovers that text messages older than 30 days contain relevant information, they might be out of luck.
  1. Technology is constantly improving: Smartphones didn’t exist until 2007, and fitness trackers are only about 10 years old. Now both are ubiquitous. Fitness devices, in particular, track the location, activity level and health stats of users, providing potentially valuable information in legal matters — a tool that seemed inconceivable 15 years ago. Digital forensics is an evolving field, providing additional capabilities and options with each passing year. So, just because something seems impossible now doesn’t mean it will always be that way.
  1. The professionals know best: Computers and cellphones might be the primary places where data is stored, but they’re not the only sources of relevant material. Forensic investigators are going to be your best source of information about other potentially rich sources that might be out there. They also understand how to collect data in a way that captures any accompanying metadata and, crucially, maintains the integrity of the information so it can be used in a legal matter. Even experts in other areas of technology might not understand the best practices for evidence preservation, potentially making it unusable if a legal matter were to arise.

Because so much of our personal information is in some digital form, it’s essential in any legal matter to comb through all potential data sources to make sure the full story is being told. Sometimes, the data you didn’t know you had is exactly what you need to corroborate your side of the story.

Socha's Weekly Trend Report

Socha’s Weekly Trend Report – July 13, 2020

Notes on recent trends in e-discovery, data privacy, and the use of technology to enhance the practice of law.

Announcements

CategoriesDateEntries
Announcements
E-Discovery
07/09/2020Exterro announced enhancements to its Legal GRC Platform today with the launch of Exterro Policy Management, meant to offer legal defensibility and insight into organizational efforts to comply with company policies and applicable state and federal requirements.
Announcements
E-Discovery
07/08/2020Xact Data Discovery (XDD) announced the acquisition of RVM Enterprises, expanding XDD’s presence in the New York and New Jersey corridor.
Announcements
Enhancing Practice
07/08/2020EasyRogs announced the release of a system for automatically generating finished forms and responses to discovery requests, designed specifically for California civil practice.
Announcements
E-Discovery
07/07/2020Ipro announced the acquisition of NetGovern, culminating a strategic partnership announced in January and expanding Ipro’s information archiving and governance capabilities.
Announcements
Enhancing Practice
07/07/2020DocuSign announced the acquisition of Liveoak Technologies for $38M in an all-stock transaction, to leverage Liveoak’s technology and expertise to accelerate the launch of DocuSign Notary, a remote online notarization capability.

E-discovery

CategoriesDateEntries
E-Discovery
Enhancing Practice
Privacy
07/10/2020The Blickstein Group, Corporate Counsel Business Journal, and Exterro have published their 4th Annual Study of Effective Legal Spend Management, focused this year on legal operations (implement a comprehensive strategy), data privacy processes (ensure defensibility and compliance), and e-discovery activities (do more yourself to minimize spend).
E-Discovery
Privacy
07/09/2020The Sedona Conference published the public-comment version of its Commentary on the Enforceability in U.S. Courts of Orders and Judgments Entered under GDPR, reported Doug Austin of eDiscovery Daily.
E-Discovery07/09/2020Zach Warren of Legaltech published his interview with Ron Hedges and Ken Withers, senior editors of The Sedona Conference Cooperation Proclamation: Resources for the Judiciary, Third Edition.
E-Discovery07/09/2020Phil Beckett of Alvarez & Marsal published a simple guide to e-disclosure (or e-discovery) in the UK. To get a sense of some of the differences between the UK and US systems, go to the “Disclosure Pilot Scheme” section of the article.
Announcements
E-Discovery
07/09/2020Exterro announced enhancements to its Legal GRC Platform today with the launch of Exterro Policy Management, meant to offer legal defensibility and insight into organizational efforts to comply with company policies and applicable state and federal requirements.
Announcements
E-Discovery
07/08/2020Xact Data Discovery (XDD) announced the acquisition of RVM Enterprises, expanding XDD’s presence in the New York and New Jersey corridor.
Announcements
E-Discovery
07/07/2020Ipro announced the acquisition of NetGovern, culminating a strategic partnership announced in January and expanding Ipro’s information archiving and governance capabilities.
E-Discovery
Privacy
07/07/2020Ralph Nickl and Brian Evans of Canopy published a three-part series on nine differences between data breach and litigation reviews: Part 1, Part 2, and Part 3.
E-Discovery07/07/2020Jonathan G. Hardin and Ryan Parietti of Perkins Coie published a short primer on the discoverability of virtual meetings.
E-Discovery07/07/2020For nearly as long as there has been e-discovery, companies in adjoining areas have tried to hop the fence into e-discovery’s yard. Frank Ready of Legaltech news reported on the most recent group to try to cross that barrier, contract companies.
E-Discovery
Privacy
07/06/2020In a Legaltech news article, Ryan Costello of ProSearch offered subsections for an e-discovery approach for responding to data subject access requests (DSARs).

Enhancing practice

CategoriesDateEntries
E-Discovery
Enhancing Practice
Privacy
07/10/2020The Blickstein Group, Corporate Counsel Business Journal, and Exterro have published their 4th Annual Study of Effective Legal Spend Management, focused this year on legal operations (implement a comprehensive strategy), data privacy processes (ensure defensibility and compliance), and e-discovery activities (do more yourself to minimize spend).
Enhancing Practice07/10/2020Casetext and Gravity Legal are offering free access to their products to attorneys involved in civil rights matters, reported Bob Ambrogi of LawSites. Casetext is offering free access to its Compose brief automation for Title VII motions through the remainder of the summer. Gravity Legal will offer $50,000 of free credit card processing to firms that focus primarily on civil rights.
Enhancing Practice07/09/2020Altman Weil recently published its 2020 Law Firms in Transition 87-page report, noted Casey Sullivan of Logikcull. The tone of the report is evident in the first sentence of the survey highlights section: “Law firms in general have not demonstrated the will to change their legal service delivery model to increase the value being delivered to clients.”
Enhancing Practice07/09/2020As executive director of the nonprofit Immigrants Like Us, former Big Law attorney Jonathan Petts is using the no-code product Community Lawyer to expand access to legal services for low-income immigrants, reported Amy Guthrie of Legaltech news.
Enhancing Practice07/09/2020The Washington Supreme Court’s Limited License Legal Technicians program, announced in 2012, has met its demise, reported Lyle Moran of the ABA Journal. Meant to permit licensing of nonlawyers to undertake certain legal tasks, the program was sensated by the Washington Supreme Court on June 4.
Enhancing Practice07/09/2020In the first of two Corporate Counsel articles, E. Leigh Dance (Global Counsel Leaders Circle) and Jon Pedersen (Digital Legal Exchange) summarized discussions of more than 80 global corporate legal and compliance leaders in six weeks of virtual roundtables. Part 1 focused on technology and digital advancement: digital as top of mind; the desire for higher-value work and increased efficiency; the benefits accruing from the singular focus required during the pandemic’s early days; and the need for IT and digital skills and competencies.
Enhancing Practice07/09/2020Barak Cohen, Angela R. Jones, Zachary Chalett, and Karen O. Lisko of Perkins Coie published a short primer on remote depositions and other remote testimony.
Enhancing Practice07/09/2020In an Above the Law article, Nicole Black of MyCase listed some of the ways lawyers have been exploring and adopting technology over the past few months.
Enhancing Practice07/08/2020A growing number of law firms are blurring the distinction between law firms and alternative legal service providers (ALSPs), according to Victoria Hudgins of Legaltech news, doing this by adopting cross-disciplinary technology and consultancy services unique to the ALSP market.
Announcements
Enhancing Practice
07/08/2020EasyRogs announced the release of a system for automatically generating finished forms and responses to discovery requests, designed specifically for California civil practice.
Announcements
Enhancing Practice
07/07/2020DocuSign announced the acquisition of Liveoak Technologies for $38M in an all-stock transaction, to leverage Liveoak’s technology and expertise to accelerate the launch of DocuSign Notary, a remote online notarization capability.
Enhancing Practice07/02/2020Craig Ball described how to up your Zoom game with the “weather map” technique.

Privacy

CategoriesDateEntries
E-Discovery
Enhancing Practice
Privacy
07/10/2020The Blickstein Group, Corporate Counsel Business Journal, and Exterro have published their 4th Annual Study of Effective Legal Spend Management, focused this year on legal operations (implement a comprehensive strategy), data privacy processes (ensure defensibility and compliance), and e-discovery activities (do more yourself to minimize spend).
Privacy07/10/2020New Zealand has a new Privacy Bill set to go into effect on Dec. 1, 2020, replacing its Privacy Act 1993, reported Hunton Andrews Kurth.
E-Discovery
Privacy
07/09/2020The Sedona Conference published the public-comment version of its Commentary on the Enforceability in U.S. Courts of Orders and Judgments Entered under GDPR, reported Doug Austin of eDiscovery Daily.
Privacy07/09/2020The Dubai International Financial Centre (“DIFC”) Data Protection Law No. 5 of 2020 became effective on July 1, with a COVID-driven three-month grace period, reportedDavid Pang, Olivia R. Lee, and Jenna N. Rode of Hunton Andrews Kurth.
E-Discovery
Privacy
07/07/2020Ralph Nickl and Brian Evans of Canopy published a three-part series on nine differences between data breach and litigation reviews: Part 1, Part 2, and Part 3.
E-Discovery
Privacy
07/06/2020In a Legaltech news article, Ryan Costello of ProSearch offered subsections for an e-discovery approach for responding to data subject access requests (DSARs).

E-discovery case law

DatePostureOutcomeEntries
07/03/2020Plaintiffs’ motion for spoliation sanctions.Motion for sanctions granted. Adverse inference recommended.John, et al. v. Cnty. of Lake, et al., No. 18-cv-06935-WHA(SK) (N.D. Cal. July 3, 2020)
U.S. Magistrate Judge Sallie Kim granted plaintiffs’ motion for spoliation sanctions and recommended that the District Count provide an adverse inference instruction to the jury, having found that (1) defendants’ obligation to preserve evidence was triggered with they received notice of an administrative claim and made even clearer when they received plaintiffs’ discovery requests; (2) defendants took no steps to preserve the sought-after ESI, resulting in its loss; (3) the lost ESI cannot be restored through other means; and (4) as a result of the loss, plaintiffs have suffered the prejudice of not having accessing to relevant information that goes to some of the key issues in the case.
Source: Court Recommends Adverse Inference Sanctions and Awards Attorney Fees for Spoliation: eDiscovery Case Law, eDiscovery Daily, Doug Austin.
07/02/2020Plaintiff’s motion to compel better discovery responses and for fees.Motion granted in part and denied in part.Equal Employment Opportunity Commission v. M1 5100 Corp., d/b/a Jumbo Supermarket, Inc., 2020 U.S. Dist. LEXIS 117243 (S.D. Fla. July 2, 2020)
Defendant collected ESI without the the participation or oversight of counsel, which led to a motion by plaintiff to permit it to inspect how defendant’s ESI was searched, collected, and produced. The unsupervised self-collection “greatly trouble[d] and concerne[d]” U.S. Magistrate Judge William Matthewman, leading the court to “seriously question[] the efficacy of Defendant’s search, collection and document production.” Rather than immediately order the requested inspection – something that should be the exception and not the rule for discovery of ESI – the court gave defendant one last chance to comply with its discovery search, collection, and production obligations and set forth the parameters of that process.
Source: The Florida E-Discovery Case Law Database
06/24/2020Plaintiffs’ expedited motion to compel and request for discovery hearing.Motion granted in part and denied in part.Oj Commerce Llc v. Kidkraft, CASE NO. 19-60341-CIV-COOKE/SNOW (S.D. Fl. June 24, 2020)
Using search terms agreed upon by the parties, defendants identified 100,000 potentially responsive documents. Defendants withheld 94,000 of those documents as irrelevant. When challenged, defendants asserted that “they had complied in full with their document production obligations” and argued that the search terms were overly broad. As part of a court-ordered meet and confer, plaintiffs offered a proposal, not described in the opinion, which defendants rejected; defendants did not offer a counterproposal. Determining that the “sheer volume of documents withheld … is concerning since the documents were identified by agreed search terms”, U.S. Magistrate Judge Lurana S. Snow ordered defendants to produce “all non-privileged, responsive documents to the parties’ agreed upon search terms (the remaining 94%)” as well as a privilege log for withheld documents, all within five days. The judge also ordered that to the extent the parties can agree that certain documents are not relevant, those documents need not be produced, and that if the parties agree on a different deadline (before the end of the five days) then the date of production can be modified.

Additional articles

CategoriesDateEntries
E-Discovery07/13/2020Court Orders Parties to Confer After Defendant Conducts Unsupervised Self Collection: eDiscovery Case Law
Source: eDiscovery Today
Author: Doug Austin
Additional Article
E-Discovery
07/10/2020Thought Leader Interview with John Wilson of HaystackID: eDiscovery Trends and Best Practices, Part 1, Part 2, and Part 3
Source: eDiscovery Today
Author: Doug Austin
E-Discovery07/09/2020Interview: Jamie Berry of Integreon on how Relativity supports large document reviews
Source: eDisclosure Information Project
Author: Chris Dale