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
NELTP Connect 2019 – Please join us on 5/30 at The State Room (60 State Street – Boston) for the New England Litigation Technology Professionals’ NELTP Connect 2019: Luncheon keynote by the Hon. F. Dennis Saylor IV, future lawyering, e-discovery, data privacy, anti-money laundering, and more.
California Consumer Privacy Act: 6 Month Countdown for Retailers – Please join Karen Schuler, Principal & National Governance & Compliance Practice Leader, BDO USA; Rick Wilson, VP of Strategy & Solutions, Sherpa Software; Rebecca Shore-Suslowitz, Director, Global Privacy, Under Armour; and Shannon Yavorsky, Partner, Venable LLP on 6/12 at noon Eastern for a webinar looking at the impact of the CCPA on retail and consumer products companies.
Building Tomorrow’s Business: What does digital transformation mean for middle-market companies in 2019? – Please join Gary Bie of Stony Brook Medicine and Malcolm Cohron of BDO on 6/19 at noon ET for a webinar examining the results of BDO’s inaugural Digital Transformation Services survey.
E-DISCOVERY
EDRM workshop recap – Mike Quartararo offers up a recap of the recent EDRM workshop. In his post, The Oldest Acronym In E-Discovery Continues Its Tradition Of Excellence, Mike notes that Duke/EDRM currently is in the midst of a membership drive. Membership is affordable and there are discounts for ACEDS members and WiE members. Students get a discount as well. And organizational memberships are affordable as well. Contact EDRM or visit the website here for more information.
CYBERSECURITY & DATA PRIVACY
Microsoft top privacy lawyer calls for US privacy law – Caroline Spiezio of Legaltech News reports that on the GDPR’s first anniversary Julie Brill, Microsoft’s deputy general counsel and top privacy lawyer, suggested in a post on May 20 that the U.S. adopt a federal privacy law. Citing the GDPR and privacy laws adopted, proposed, or under amendment in Brazil, China, India, Japan, South Korea, and Thailand, Brill commented that “Microsoft was the first company to provide the data control rights at the heart of GDPR to our customers around the globe, not just in Europe” and called for the U.S. to follow the lead set by the GDPR and the CCPA: “Now, it’s Congress’s turn to adopt a new framework that reflects the changing understanding of the right to privacy in the United States and around the world. Like GDPR, this framework should uphold the fundamental right to privacy through rules that give people control over their data and require greater accountability and transparency in how companies use the personal information they collect.”
Cybercriminals go for the money – Verizon published its 2019 Data Breach Investigations Report, noted Dan Clark in a Corporate Counsel article. Verizon analyzed 41,686 security incidents from 2018. Key findings from the 78-page report include that 43% of breaches involved small business victims, 52% featured hacking, 69% were perpetrated by outsiders, and 71% were financially motivated.
New Jersey amends data breach notification law – New Jersey’s governor signed into law P.L.2019, c.95. The legislation expands the definition of personal information and updates notification requirements, report Joseph Lazzarotti, Jason Gavejian, and Maya Atrakchi of Jackson Lewis.
IAPP Global Privacy Summit report – Heather Egan Sussman, Aravind Swaminathan, Doug Meal, Nicholas Farnsworth, and Kyle Kessler of Orrick offer takeaways from the 2019 IAPP Global Privacy Summit held earlier this month, grouping them under five headings: The First Year of GDPR Enforcement; The CCPA Is Coming!; The Future of U.S. Privacy Law; Privacy Considerations for Existing and Emerging Technology; and A Shifting Litigation Landscape.
Sedona commentary – The Sedona Conference announced publication of the final, May 2019 version of The Sedona Conference Commentary on Data Privacy and Security Issues in Mergers & Acquisitions Practice.
LEGAL TECHNOLOGY & DIGITAL TRANSFORMATION
Acquisitions – Wolters Kluwer’s ELM Solutions has acquired CLM Matrix, noted Bob Ambrogi. CLM Matrix provides contract lifecycle management software, deepening the suite of the company’s corporate legal operations offerings.
Lawyer duty of technology competence – Maine adopted a provision that touches on technology competence for lawyers but does not actually require it, according to Bob Ambrogi. Thirty-six states have adopted a duty of technology competency. Two others require ongoing technology training. Maine took a different approach. It has a new CLE rule, Maine Bar Rule 5, that sets minimum CLE requirements to, among other things, “ensure that attorneys remain current on the law, law practice management, and technology in our rapidly changing society.” Bob observed that the new rule does not actually mention technology, and so contacted Aria Eee, counsel to Maine’s Board of Overseers of the Bar, for clarification. She responded, “Maine attorneys are encouraged to attend CLE programming that provides education on safe and effective ways to use technology in law practice. Attorneys will receive credit if they attend such CLEs and the program has been approved by the Board’s CLE committee. But the tech aspect is not a requirement, rather more of an aspirational CLE goal.”
Lawyer duty of technology competence, part 2 – Bob Ambrogi continues on the topic of technology competence with an article in Above the Law, Ethics Opinion Misses The Mark On Tech Competence, about a Louisiana State Bar Association opinion, Lawyer’s Use of Technology, that falls short in a coupe of ways.
Shutdowns – Bob Ambrogi has started to track legal tech startups that have begun to shut down. First, he reported that Tali, meant to allow lawyers to track their time through voice commands using Amazon Alexa or Google Assistant, will be shutting down in June. Now he lets us know that SupportHound, a spousal support calendar that uses real cases to calculate how much and how long a spousal support award should be, will be closing down.
Lawyer AI adoption slow – About one quarter of people working in law firms and law departments use legal technology tools based on AI or machine learning, according to the results of Bloomberg Law survey. Fifty-four percent of respondents do not use AI or machine learning tools and another quarter do not know whether they use such tools, reported Sam Skolnik of Bloomberg Law.
Law firms in transition – Altman Weil issued a flash survey, 2019 Law Firms in Transition. A few of the findings: the need to improve efficiency and be competitive on prices is here to stay; corporate legal departments are law firms’ biggest competitors; to better understand what clients want, law firms are talking pricing and budgets; demand for law firm services continues to grow while overcapacity dilutes firms’ overall profitability and firms suffer from chronically under-performing lawyers; to deliver legal services more efficiently firms are both using technology to replace human resources and basing compensation decisions on efficiency and profitability; and firms are using alternative fee options as part of their pricing strategy but still relying primarily on hourly fees.
An Uber-model for legal services? – Antony Smith of LPM ponders the question of whether law firms and other legal service organizations should adopt an Uber-like model for legal service delivery – a concept floated by Oz Benjamin, Chief Knowledge Officer at White & Case in From Uber to Lawber. How Digital Transformation May Change the Legal Industry. Benjamin proposes “Lawber”: “Lawber will be a digital market for buying legal services. By mapping with real, actionable data, including efficiency, quality, availability, cost, satisfaction, etc. Lawber would identify the right lawyer to help with your legal problem.”
E-DISCOVERY CASE LAW
Recent e-discovery decisions
4/26/2019 – U.S. Magistrate Judge Angel Mitchell granted in part and denied in part plaintiff’s motion to compel, ordering the parties to comply with a seven-step ESI protocol laid out in the order. Per that protocol, (1) plaintiff is to identify up to seven categories of ESI he seeks, (2) for each category, defendant is to list the three custodians most likely to have relevant ESI and explain why it believes each custodian will have relevant ESI, (3) plaintiff will chose five custodians and propose search terms for each custodian, (4) defendant will search using those terms, sampling and proposed modified search terms as needed, (5) plaintiff and defendant will meet and confer to try to achieve an estimated responsive hit rate of at least 85%, (6) defendant will produce responsive ESI from the first five custodians by a set date, and (7) the parties will move on to the next five custodians. Lawson v. Spirit Aerosystems, Inc., No. 18-1100-EFM-ADM (D. Kan. Apr. 26, 2019).
5/10/2019 – U.S. Federal Claims Court Judge Eric Bruggink granted plaintiffs’ motion for sanctions against the Federal government for destroying relevant evidence it had a duty to preserve, awarding recovery of costs and fees and allowing for an adverse inference to be drawn. The Court applied the elements of FRCP 37(e)(2). First, the government had a duty to preserve sought-after ESI stored on select servers and laptops, and that duty arose well before the hard drives were shredded and the laptops reimaged. Next, the government did not take reasonable steps to preserve the ESI, both delaying nearly three months before issuing preservation notices, during which time hard drives were shredded, and continuing to allow laptops to be reimaged. The Court determined that the lost ESI could not be replaced by other discovery. The Court found that the government’s destruction of evidence prejudiced plaintiffs in their attempts to demonstrate infringement and damages. Finally, the Court concluded that the government intentionally deprived plaintiffs of the use of the destroyed information in litigation. 4DD Holdings, LLC v. United States, No. 15-945C, 2019 U.S. Claims LEXIS 494 (Fed. Cl. May 10, 2019).
ANNOUNCEMENTS
ADDITIONAL ARTICLES
BOOKS
| Organization | Title |
| ABA | The Internet of Things (IoT): Legal Issues, Policy, and Practical Strategies
Editors: Christopher Suarez, Cynthia Cwik, Lucy Thomson |
UPCOMING EVENTS
Conferences, webinars, and the like can provide insight into where e-discovery, information governance cybersecurity, and digital transformation are heading
5/23/2018-6/21/2019 EVENTS
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Named an “E-Discovery Trailblazer” by The American Lawyer, George has assisted corporate, law firm, and government clients with all facets of electronic discovery, including information governance, domestically and globally. He served clients in a variety of industries including pharmaceutical, energy, retail, banking and technology, among others. As a renowned industry thought leader, he has authored more than 50 articles and spoken at more than 200 engagements across the world on a variety of e-discovery topics. His extensive knowledge has also been utilized more than 20 times to provide expert testimony.
Co-founder of the Electronic Discovery Reference Model (EDRM), a framework that outlines the standards for the recovery and discovery of digital data, and the Information Governance Reference Model (IGRM), a similar framework specific to information management, George is skilled at developing and implementing electronic discovery strategies and managing electronic discovery processes.