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
New Authentication Rules – In an ABA article, Maryland US District Judge Paul Grimm discusses two new Federal Rules of Evidence, 902(13), Certified Records Generated by an Electronic Process or System, and 902(14), Certified Data Copied from an Electronic Device, Storage Medium, or File. These, he notes, are alternatives to requiring live testimony in situations where an attorney seeks admission of ESI, such as where AI computer analysis underlies a process that is central to a key issue in a case. For an detailed discussion of ESI authentication, read Paul W. Grimm, Daniel J. Capra & Gregory J. Joseph, Authenticating Digital Evidence, 69 Baylor L. Rev. 1, 40 (2017).
Cross-border investigation interview notes problematic – In an ABA article, Assistant US Attorney Sunil Harjani reminds us not to assume notes taken while conducting cross-border investigations necessarily will be deemed privileged, something to keep in mind when, for example, interviewing ESI custodians.
Not John Henry; rather, man-machine symbiosis – The title of “Lessons from RSA 2019: The year of man/machine symbiosis”, an article in Information Management by Tim Woods of Fireman, offers a lesson to those of us in e-discovery. Instead of framing the use of TAR and the like as a “John Henry versus the steam drill” contest, we really should be talking about the implications of the man-machine symbiosis created through the use of those tools and techniques. Read the article for highlights such as the brief discussion of “trustworthy twins”.
Predictive coding survey results – Rob Robinson of Complex Discovery published the results of his recent survey on predictive coding technologies and protocols. Highlights: active learning tools (call it TAR 2.0 if you want), especially those from Relativity, dominate.
2018 e-discovery developments summarized – David Horrigan of Relativity has prepared an e-book, “2018 Data Discovery Legal Year in Review”, that summaries the law of data discovery in 2018.
O365 holds and PowerShell – In an article on LinkedIn, Jonathan McKee details how to use PowerShell scripts to apply litigation holds to O365 clients.
E-discovery basics – Matthew Verga of XDD is up to part 4 in his series on e-discovery basics. So far:
- Clearing the Fog of War, ECA Fundamentals Series Part 1
- Sampling a Well-Stocked Toolkit, ECA Fundamentals Series Part 2
- Searching and Filtering for Fun and Profit, ECA Fundamentals Series Part 3
- Threading, Duplicates & Near-Duplicates, ECA Fundamentals Series Part 4
CYBERSECURITY & DATA PRIVACY
Microsoft Compliance Center – Microsoft recently announced the introduction of the new Microsoft 365 security center and Microsoft 365 compliance center. Per the announcement, the new Microsoft 365 security center “provides security administrators and other risk management professionals with a centralized hub and specialized workspace that enables them to manage and take full advantage of Microsoft 365 intelligent security solutions for identity and access management, threat protection, information protection, and security management.” The Microsoft 365 compliance center “is a specialized workspace for your compliance, privacy, and risk management professionals.”
O365 security – While we are on the topic of O365, there is an article in Virtualization & Cloud Review by Paul Schnackenburg of Expert IT Solutions that looks at security in Microsoft’s cloud.
CCPA compliance strategies – In a Legaltech News article, Blank Rome attorneys offer advice on complying with the California Consumer Protection Act.
Compliance apps – A Legaltech News articles discusses, and links to other articles about, four compliance apps from law firms and providers:
- Willkie Farr & Gallagher’s Willkie Compliance Concourse: “Identify risks • Understand compliance • Manage investigations • One central destination”
- EY’s DPO One: “A sustainable solution to help your company comply with GDPR”
- Harris Beach’s CyMetric: “CyMetric Creates a Clear Roadmap to Your Organization’s Cybersecurity Compliance”
- Davis Polk’s Cybersecurity Assessment Portal: “a secure online suite of tools designed to help companies maintain robust cybersecurity programs and prepare for a possible cybersecurity event”
Emerging data security and risk management trends – In an Information Management article, David Weldon, the publication’s editor-in-chief, highlights 7 trends: (1) risk appetite statements becoming linked to business outcomes; (2) security operations centers being implemented with focus on threat detection and response; (3) data security governance frameworks to prioritize data security investments; (4) password-less authentication achieving market traction; (5) security product vendors increasingly offering premium skills and training services; (6) investments being made in cloud security competencies as mainstream computing platform; and (7) increasing presence of Gartner’s CARTA in traditional security markets.
Hiring a DPO? – In a Legaltech News article, FTI Consulting’s Andrew Shaxted and Louise Rains discuss challenges and considerations to consider when hiring a Data Protection Officer pursuant to the GDPR. The first challenge? Actually finding and hiring one.
Data breach maps – As pointed out by Sharon Nelson of Sensei Enterprises, BakerHostetler maintains two interactive data breach maps: an EU GDPR Data Breach Notification Resource Map and a Breach Notification Law Interactive Map.
The FDA and cybersecurity – In a Jones Day publication, attorneys Ian Pearson, Colleen Heisey, J. Todd Kennard, and Samir Jain explore how the Food and Drug Administration is addressing cybersecurity risks to medical devices.
Washington Senate passes data privacy rules – According to an AP report, the Washington Senate has passes a broad package of data privacy protections, including right to delete rules.
LEGAL TECHNOLOGY & DIGITAL TRANSFORMATION
Robo-lawyers: New best friend or worst nightmare? – In an ABA article, ASU law professor Gary Marchant and Quarles and Brady attorney Josh Covey offer their take on how artificial intelligence likely will change how lawyers work. They offer good news and bad, pointing to examples of how AI is improving the practice while cautioning that the inevitable disruption will be, in a word, disruptive.
Law firm launches legal ops department – Legaltech News reports that Barnes & Thornburg, in a move that mimics in-house efforts, has launched a “legal operations department.”
The middle way – Artificial Lawyer founder Richard Tromans offers suggestions to law firms on how to pursue an integrated approach to legal technology.
AI smoke and mirrors – According to a Legal IT Insider article, “It’s official: 40% of AI startups don’t use AI”. More specifically, UK investment firm MMC Ventures, in association with Barclays, analyzed information about 2,830 European AI start-ups and concluded that four out of ten demonstrated little evidence of actually using AI in their products and services.
E-DISCOVERY CASE LAW
Recent e-discovery decisions
3/4/2019 – MN Magistrate Judge Tony Leung found discovery misconduct by defendants and ordered monetary sanctions consisting of fees, costs, expenses, and a $10,000 fine. Defendants had a duty to preserve text messages. They did not take reasonable steps to preserve the messages but instead actively destroyed the messages. Finally, the destroyed messages were no longer recoverable. Paisley Park Enters. v. Boxill, No. 0:17-cv-01212 (D. Minn., Mar. 5, 2019).
Conferences, webinars, and the like can provide insight into where e-discovery, information governance cybersecurity, and digital transformation are heading