Weekly Trends Report – 5/29/2019 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

5/30/2019  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.

6/12/2019 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.

6/19/2019 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.

6/20/201906/21/2019 Duke Law Bolch Judicial Institute proportionality conference – Please join us on 6/20 and 6/21 in Arlington, VA for the Duke Law Bolch Judicial Institute invitation-only Distinguished Lawyers conference on Evaluating the 2015 Rule 26 Discovery-Proportionality Amendments and Bolch-Duke Guidelines and Best Practices.

E-DISCOVERY

Duke/EDRM workshop highlights – Bill Dimm of Clustify, who participated in Duke’s recent EDRM Workshop, offers highlights from the meeting.

Biggest e-discovery challenges facing plaintiffs’ attorneys – Tom O’Connor has prepared a five-part series on the e-discovery challenges facing plaintiffs’ attorneys, drawing on answers to questions he posed to Craig Ball (consultant, ESI expert, Special Master, former plaintiffs’ attorney and author of the Ball in Your Court blog), Ariana Tadler (Managing Partner at Milberg Tadler Phillips Grossman LLP & Founding Principal at Meta-e Discover), Bob Eisenberg (Director, eDiscovery & Information Governance at Larson Security LLC and Program Director at the Cleveland-Marshall College of Law eDiscovery Professional Certificate Program), Drew Ashby (Wrongful Death and Catastrophic Injury Trial Attorney at The Cooper Firm), and Jean Martin (head of the Morgan & Morgan Complex Litigation Group in Wilmington, North Carolina). The parts are:

• Part 1: Introduction
• Part 2: Top three e-discovery pain points experience by plaintiffs’ attorneys
• Part 3: Cooperation challenges
• Part 4: Lack of competence challenges
• Part 5: Conclusions

A CTO’s take on machine learning – Todd Rebner of Cyleron offers a definition of machine learning. The term was coined in 1959. Machine learning, he says, “couples algorithms with typically vast amounts of data to improve the accuracy of the developed models.” He goes on to describe several forms of machine learning: classification; clustering; regression; supervised learning; unsupervised learning; semi-supervised learning; and reinforcement learning.

CYBERSECURITY & DATA PRIVACY

CCPA impact on advertising – Michelle Tyde and John Brigagliano of Kilpatrick Townsend offer 10 key facts about how the CCPA will impact brands’ data practices.

Two more CCPA Assembly amendments approved – Alysa Zeltzer Hutnik and Alex Schneider of Kelley Drye report that the California Assembly recently approved two bills to amend the CCPA, which move to the state Senate, and list the status of other CCPA amendments, in reverse chron order:

CCPA Senate amendment stalled – Jason Priebe of Seyfarth Shaw notes that California Senate Bill 561 has been held in committee and placed on suspense. The bill would have expanded the private cause under CCPA to include any violation of the CCPA and would have eliminated the 30-day cure period for alleged violations.

COPPA remains FTC enforcement priority – Bonnie Yeomans, Stephanie Kapinos and Kevin Milewski of Proskauer wrote that the Federal Trade Commission continues to make enforcement of the Children’s Online Privacy Protection Act (COPPA) a priority. They give three recent examples and suggest that next up for the FTC may be IoT-connected and voice-activated electronic devices and toys.

COPPA and Amazon’s Echo Dot Kids Edition – Jeremy Meisinger of Foley Hoag reports that a coalition of consumer groups has submitted a complaint to the FTC arguing that Amazon has violated COPPA in various ways with its Echo Dot Kids Edition, notably by providing insufficient privacy notices, offering an insufficiently stringent parental notification process, and making available inadequate options for deletion of personal information collected by the device.

Washington state expands data breach notification law – Daniel Moses of Jackson Lewis writes that Washington’s governor signed HB 1071, significantly expanding the state’s data breach notification law, RCW 19.255.02, et seq. The new law shortens the deadline to provide notice of breach, expands the definition of “personal information”, and adds notice requirements for affected consumers and the state attorney general. In an earlier post, Moses discussed the new provisions in greater detail.

Nevada legislature passes online privacy notice statute update – Robert Bowman, Ephraim Hintz, and David Strauss of Husch Blackwell report that the Nevada legislature passed Senate Bill 220, a bill revising provisions relating to internet privacy. The authors review Nevada’s existing law and discuss of the legislation will modify it.

GDPR for litigators – Allen & Overy has published a short guide on the GDPR specifically for litigators.

GDPR costs and consequences – Truth on the Market author Alec Stapp goes into the costs and consequences of the GDRP at it turns one, including cases and fines, unintended consequences organized by GDPR article, compliance costs, and impact on small and medium sized business.

Data breach class actions in Australia – Jones Day has published a 12-page white paper that discusses the rise of data breach class actions in Australia.

EU-Japan data transfer agreement – Sam Hold of AccessData reports that the EU and Japan have begun to implement an EU adequacy decision on Japan that creates the world’s largest area of safe data flows.

INFORMATION GOVERNANCE

Information Governance World spring issue – InfoGov World has published the Spring 2019 issue of Information Governance World.

LEGAL TECHNOLOGY & DIGITAL TRANSFORMATION

ABA Journal takes note of law firm legal tech efforts – Anna Persky writes in an ABA Journal article that in the last couple of years large and specialty law firms increasingly have been developing their own tools and software to better serve clients.

C u in court – Sharon Nelson of Sensei Enterprises, pointing to a Virginia Lawyers Weekly article, notes that in more than a dozen states public defenders and court administrators send text messages to defendants, reminding them to show up for scheduled hearings. Spokane WA public defenders are going the extra mile; they also text defendants to let them know there is a daycare facility inside the courthouse where defendants’ children can stay while defendants are in court.

New law firm tech lab in Berlin – Freshfields announced that it has opened its first Freshfields Lab in Berlin, Germany. The goal: the firm is “working collaboratively with clients in the space to develop technology-based solutions that tackle the challenges and opportunities stemming from digitization across the legal sector and clients’ own industry sectors.”

E-DISCOVERY CASE LAW

Recent e-discovery decisions

5/2/2019 – U.S. Magistrate Judge Lois Bloom issued a report and recommendation in response to a motion that “presents a cautionary tale about how not to conduct discovery in federal court.” Finding a fraud upon the Court, the judge used the court’s inherent powers as the basis for recommending that plaintiffs’ motion for sanctions be granted and that a default judgment should be entered against three of the defendants (the H&H defendants). From the beginning of discovery, the H&H proffered serial representations to the Court, many of which have been proven to be false. They repeatedly gave the Court numbers of responsive documents that did not add up; used search terms and ran searches designed to fail; attempted to shift blame to their prior counsel; failed to produce documents in accordance with court order; and intentionally withheld three categories of relevant documents from production. These actions freed two key witnesses to commit perjury at his deposition. Abbot Laboratories v. Adelphai Supply USA, 15 CV 5826 (CBA) (LB) (E.D.N.Y. May 2, 2019).

ANNOUNCEMENTS

ADDITIONAL ARTICLES

George Socha

Senior Vice President of Brand Awareness at Reveal

George Socha is the Senior Vice President of Brand Awareness at Reveal, where he promotes brand awareness, helps guide development of product roadmap and consults with customers on effective deployment of legal technology.

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.