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
EDRM releases TAR guidelines – EDRM announced it has released a comprehensive set of guidelines that aim to objectively define and explain technology-assisted review for members of the judiciary and the legal profession.
EDRM and Exterro release Federal judge survey results – EDRM and Exterro have published results of their survey of more than 260 Federal judges, reports Legaltech News. The key takeaways: (1) Be proactive; (2) understand your client’s IT infrastructure and cooperate with opposing counsel; (3) act in good faith and communicate effectively to avoid sanctions; and (4) keep getting more e-discovery competent.
The Sedona Conference extends comment period – The Sedona Conference extended until 2/15 the deadline to submit comments on its Commentary on Legal Holds, Second Edition: The Trigger & The Process. Send comments to [email protected].
The onslaught of the emojis – Santa Clara University law professor Eric Goldman warns again that lawyers and judges alike need to prepare for “the coming emoji onslaught.”
Electronic Discovery Bulletin January 2019 – Each month the National Association of Attorneys General publishes a compendium of articles and case law that may be of interest to the AG offices – and to the rest of us.
More reactions to Legaltech:
- Are the ‘Legal Elite’ in an Echo Chamber?, from David Horrigan (Relativity) – responding to Bob Ambrogi’s earlier post with the rebuttal that “sometimes Big Law does big things.”
- Takeaways from Legalweek 2019, from the attorneyatwork editors – a compilation of reactions ranging from “e-discovery still dominates” to “waste.”
- Legal Tech Disruption And Stagnancy At Legalweek 2019, from Nicole Black (MyCase) – who remarks on a smaller conference whose exhibitors and attendees nonetheless show that tech adoption in e-discovery and elsewhere in the legal field is thriving.
- What I Learned from the State of the Industry at Legaltech 2019, from Cliff Dutton (Epiq) – discussing what he learned in his prep sessions with the Legaltech State of the Industry speakers Attorney General Gonzales and Attorney General Lynch.
- Four Top Trends Warmed Up This Year’s Legaltech 2019, from Sarah Ledgerwood (Lighthouse) – discussing her top four observations: the LegalTech community wants change; we’re definitely moving to the cloud; cybersecurity is a top concern; and, finally, “Legal teams still lack tech competence; email remains king even with new data sources; emerging tech i.e blockchain not ready for regulation; data privacy/protection too weak in US; ediscovery industry and jobs rapidly expanding despite consolidation.”
CYBERSECURITY & DATA PRIVACY
Google-Style GDPR Fines for Everyone? – Alston & Bird attorney Daniel Felz warns that companies of all types and sizes need to be concerned about GDPR files. To this end, he points to the recent announcement from the Bavarian Data Protection Authority that it was considering GPDR files for 40 companies whose cookie/tracking practices it had audited and found wanting.
Or maybe not so much? – DLA Piper reports that in the eight months since the GDPR came into force, there have been more than 59,000 personal data breaches notified to regulators and yet only 91 reported fines.
GDPR upsides: shorter sales delays and fewer breaches – According to a recent Cisco Data Privacy Benchmark Study report and infographic, GDPR-ready companies have shorter sales delays due to customer privacy concerns; fewer and less costly breaches; and additional benefits including agility and innovation, competitive advantage, operational efficiency, and investor appeal.
Ohio’s Data Protection Act offers data breach safe harbor – Blank Rome attorney David Oberly writes that Ohio’s DPA, enacted last November, provides Ohio businesses that have put in place reasonable security measures with an affirmative defense to some forms of data breach claims.
Changes to California Consumer Privacy Act sought – Legaltech News reported that at a recent public forum business representatives told California regulators they want the CCPA to have more specific definitions and more flexibility in compliance.
LEGAL TECHNOLOGY & DIGITAL TRANSFORMATION
The law firm chief innovation officer: goals, roles, and holes – In a 44-page research paper, University of Miami law professor Michele Beardslee DeStefano sets forth a case for law firms installing – and then following the lead of – chief innovation officers.
And the winners are… – At Legalweek, ALM launched its Production Innovation Competition. Silvia Hodges Silverstein discusses the process and the results. Spoiler alert: Fastcase Analytics Workbench won the Judges Award and LexisNexis Context the popular vote.
E-DISCOVERY CASE LAW
Recent e-discovery decisions
12/6/2018 – New York trial court judge denied defendant’s motion for a protective order and granted plaintiff’s cross motion for an order compelling production of, among other things, the audit trail and metadata for plaintiff’s patient care records. The Court was not persuaded by defendant’s assertion that producing the metadata would cost approximately $250,000. Instead, the Court agreed with plaintiff that (a) she was entitled to at least some of the metadata and (b) that metadata likely could be produced at a lower cost than defendant estimated. Miller v. Sauberman, 2018 WL 6413541 (N.Y. 2018).
12/28/2018 – FRCP 26(b) proportionality – U.S. District Judge granted plaintiff’s motion to compel restoration and production of e-mail attachments, with the cost of restoration to be split by the parties. During discovery, plaintiff realized that defendant had produced email messages without their attendant attachments; more than 750 attachments appeared not to have been produced. This had happened because when defendant earlier had moved from one email system to another, those attachments had not been moved to the new system. An ESI Order was in place in the matter, which required a requesting party to show good cause before the responding party had to restore data and in those circumstances allowed for cost shifting. The Court found that some of the sought-after attachments appeared likely to be relevant; that the “relatively minimal cost of restoring” the system ($13,500) was proportional; and that the discovery sought is not “unreasonably cumulative” (emphasis in original). OptoLum, Inc. v. Cree, Inc., 1:17CV687 (M.D. N.C., Dec. 28, 2018).
1/3/2019 – Stored Communications Act – A panel of District of Columbia Court of Appeals judges reversed a lower court order holding appellant Facebook in civil contempt for refusing to comply with a subpoena duces tecum seeking communications related to certain accounts. According to the Court, on its face the Stored Communications Act prohibits Facebook from complying with the subpoenas. There are nine enumerated exceptions to the Act’s prohibition, but the Court found that none of them applied in this case. Facebook, Inc. v. Wint, No. 18-CO-958 (D.C. App. Jan. 3, 2019).
1/8/2019 – FRCP 26(b) proportionality – U.S. Magistrate Judge denied defendant’s motion to compel production of all cell phones used by plaintiff during and after his employment with defendant. Instead, the Court ordered plaintiff to produce complete copies of all responsive text messages. The Court found the request for all cell phones to be unduly burdensome and invasive and not proportional to the needs of the case. That contrasted with defendant’s much narrower demand for test messages, which the Court found to be sufficiently narrow and targeted. Santana v. MKA2 Enterprises, Inc., 2019 WL 130286 (D. Kan. 2019).
1/16/2019 – FRCP 26(b) proportionality and 45(a) subpoenas – U.S. District Judge denied motion to quash plaintiff’s subpoena seeking information, including application data and email metadata, from a non-party. The Court found that plaintiff had made reasonable efforts to obtain the information from the defendants; was seeking information relevant to liability and damages issues; and could, working with the others involved, adequately address issues relating to personally identifiable, sensitive, or confidential commercial information. Fair v. Commc’ns Unlimited Inc., No. 4:17 CV 2391 RWS (E.D. Mo. Jan. 16, 2019).
|1/25/2019||Alston & Bird||Alston & Bird Teams Up with Georgia State University on Data Analytics
“Alston & Bird and Georgia State University have announced a joint effort to develop broad-based competency among the firm’s attorneys in leveraging data science and analytics to help drive new levels of client service and satisfaction….”
|1/29/2019||SALI Alliance||SALI Announces Version 1 of Matter Standard
“The Standards Advancement for the Legal Industry (SALI) Alliance announced … the release of the SALI Version 1 matter category standard, which includes the publication of area of law and process codes….”
|2/7/2019||Luminance||Luminance completes funding round at $100m valuation
“Luminance, the leading artificial intelligence platform for the legal profession, has raised $10m from existing investors….”
|2/11/2019||Verbit||Verbit Raises $23 Million in Series A Funding Round
“Verbit, the leading transcription and captioning solution, announced today the close of a $23 million Series A round led by Viola Venture….”
|2/11/2019||Infinnium||Startup Company Infinnium Is Redefining How Organizations Use Data to Gain Intelligence for Improved Decision-Making
“Infinnium LLC, a software company that develops solutions to improve information management and business decision-making through effective use of the latest artificial intelligence technology, announces its official launch today….”
|2/12/2019||Evisort||Evisort Announces $4.5 Million in Seed Funding Led by Village Global and Amity Ventures
“Evisort, an artificial intelligence (AI) contract management company servicing customers like Stack Overflow and Travelzoo, announced today that it raised $4.5 million in seed funding….”