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 May 15-17 Annual Workshop – The Duke/EDRM workshop and forum is an annual gathering of highly motivated judges, practitioners, consultants, service providers, and software vendors who collaborate on exciting and challenging ediscovery and other IT projects that impact the industry and the profession. Join us in an intimate environment on Duke Law School’s campus, develop and broaden professional relations, and avail yourself of ample opportunities to talk directly to federal judicial and bar leaders.
ILTA white paper – ITLA has published Litigation and Practice Support, a 71-page white paper covering a range of e-discovery and related topics:
- 2018 Litigation and Practice Support Survey Results, by Cindy MacBean of Honigman (pages 4-37)
- Convergence of Privacy, Security, & Ediscovery: Making a Pro Well-Rounded, by Eric Pulsipher of BakerHostetler and Joan Washburn of Holland & Knight (pages 38-40)
- The Evolving Identity of Corporate Ediscovery and Information Governance, by Ben Robbins of LinkedIn (pages 41-44)
- Going for Information Governance Gold – Closing the Gap on Discovery Materials, by Stephen Cole of Mattern & Associates (pages 45-48)
- Data Governance, by Nishan DeSilva of Microsoft and Donna Payne of PayneGroup (pages 49-55)
- Conquering Email in Ediscovery: How Analytics are Change the Game, by Jason Richard of H5 (pages 56-61)
- Mobile Litigation in the 21st Century, by Walter Lee of Legal Document Server (pages 62-63)
- Smart Spaces: The Next Frontier for Legal Tech?, by Don Fuchs of HighQ (pages 64-67)
- The Struggle Is Real: Using Trial Technology with Millennials in the Jury Box, by Tim Piganelli (pages 68-71)
Defensible AI? – Eric Evans, Alex Lakatos, and Brad Peterson of Mayer Brown propose a four-part framework for explaining and defending a company’s use of AI in litigation:
- Management team specifies to its data scientists and technicians how the company wants the AI tool to work
- The tool is built to store the right facts about how it arrived at results
- The company employs “AI sustainers” to continually test and modify the tool
- The company emloys “AI explainers” who can explain the tool’s results
E-discovery and electronic storage basics revisited – Craig Ball’s recent post, Electronic Storage in a Nutshell, offers a 21-point synopsis of e-discovery storage concepts, technical takeaways, and vocabulary.
Legal department e-discovery maturity still largely aspirational – Tim Rollins summaries the results of last year’s Duke/EDRM and Exterro E-Discovery Maturity Quiz, which you still can take. The full report, E-Discovery Maturity by the Numbers, is available as well.
LEGAL TECHNOLOGY & DIGITAL TRANSFORMATION
Duty of tech competence for judges? – Robert Ambrogi of LawSites argues that judges should have a duty to be technically competent, just as lawyers do in 36 states.
A blockchain trio:
- Law firms form blockchain consortium – Six Canadian law firms – Bennett Jones LLP, Blake Cassels & Graydon LLP, Davies Ward Phillips & Vineberg LLP, Fasken Martineau Dumoulin LLP, Norton Rose Fulbright LLP and Stikeman Elliott LLP – have joined forces to launch pilot project to develop a “smart contract” on the Ethereum blockchain. They will be collaborating with blockchain consultancy GenesisB and using the OpenLaw
- What is a blockchain corsortium? – For a discussion about blockchain consortia, go to the Corporate Counsel article by Michael Baumert of Barnes & Thornburg and Szymon Ciach and Piotr Gałka of SWW Pragmatic Solutions, Blockchain Consortia: A legal roadmap to a dynamically changing regulatory landscape in the US and the EU.
- Opining of the future of blockchain in the legal industry – Sam Mire of Front Lines Media pulled together eight perspectives on the future of blockchain in the legal industry.
More on legal tech incubators – Mishcon de Reya’s MDR LAB has announced the third cohort in its 10-week legal tech incubator program meant to help early stage companies deepen their understanding of the problems lawyers face in their day-t0-day work and test their products with real-life users:
- Astroscreen: Protect brands from harmful social media manipulation campaigns
- Index: Sales engagement platform for lawyers
- Donna: Assistant for lawyers
- Solomonic: Analytics for litigation decision-making
- Courtsdesk: Access to non-public court reports as well as data about cases and litigants
- Hipla: Buyer qualification program
Singapore underwrites law firm legal tech adoption – The Artificial Lawyer reports that the Singapore government, in partnership with the local Law Society, has launched a $3.68m program that will pay up to 70% to law firms of the first year’s cost of new applications – up to $30k for nine qualified baseline solutions and up to $100k for seven qualified advanced ones.
Legal technologies charted – Jaap Bosman of TGO Consulting posted a chart of current legal technology types that provides a useful overview.
E-DISCOVERY CASE LAW
Recent e-discovery decisions
3/4/2019 – After a jury awarded plaintiff damages for copyright infringement, the District Court awarded fees and costs for, among other things, litigation expenses such as expert witnesses, e-discovery, and jury consulting. In making this award, the District Court relied upon the “full costs” language in the Copyright Act. The U.S. Supreme Court found that the award of litigation expenses was not warranted. “Full costs” allowed under the Copyright Act are limited to the costs specified by §§1821 and 1920. Those sections in turn specify the six categories of expenses that courts may award as costs: (1) clerk and marshall fees; (2) fees for certain transcripts; (3) printing and witness fees and disbursements: (4) fees for exemplification and copying costs for certain materials; (5) certain docket fees; and (6) compensation for court appointed experts and interpreters and costs for certain interpretation services. Asserting that none of those categories covers expert witnesses, e-discovery, and jury consulting, The Supreme Court focused on the meaning of “full” in the Copyright Act’s phrase “full costs”, concluding that the “full” in “full costs” does not expand the scope of costs covered and hence that the award of litigation expenses was not warranted. Rimini Street, Inc., et al, v. Oracle USA, Inc., et al., 586 U. S. ____ (2019).
4/26/2019 – Judge Sasso of the Florida Fifth District Court of Appeal, affirming a summary final judgment, held that Florida law does not impose a duty on nonparties to litigation to preserve evidence based solely on the foreseeability of litigation. In the underlying action, plaintiff served six deposition notices on an individual who was not a party to the lawsuit. Only with the sixth notice did plaintiff include a document request. After receiving the first notice but before receiving the sixth notice, the individual obtained a new computer, destroyed her old one, did not retain any data from the old computer,a nd did not inform anyone that she was destroying the old computer. She also did not search the old computer for any information relevant to the notices she had received up to the time when she destroyed the machine. Plaintiff subsequently sued the individual. Both plaintiff and the individual brought motions for summary judgment regarding whether the individual had a duty to preserve her computer or its contents. Florida has an independent cause of action for third-party spoliation with six elements, all of which must be proven. The second element requires a legal or contractual duty to preserve relevant to the potential civil action, a duty the court found not to be present. Shamrock-Shamrock, Inc. v. Remark, No. 5D18-1987 (Fla. Dist. Ct. App. Apr. 26, 2019).
Conferences, webinars, and the like can provide insight into where e-discovery, information governance cybersecurity, and digital transformation are heading