Weekly Trends Report – 6/5/2019 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

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

Report on EDRM’s Spring 2019 workshop/forum – Duke/EDRM held its spring workshop/forum at Duke University Law School last month, examining issues and challenges involving e-discovery and technology, including GDPR compliance, TAR guidelines, and proportionality. Posted is a recap with a link to the eight current EDRM projects and one new one.

New e-discovery rankings – This year the Legal 500 has added an e-discovery category to its US guide, listing 17 law firms in three tiers and seven individual lawyers.  The firms and individuals are:

CYBERSECURITY & DATA PRIVACY

Subject access request compliance costs rise – There has been a sharp rise (71%) in the number of data subject access requests (DSARs) made be employees since the introduction of the GDPR, report Matthew Lewis, David Regan, Ann LaFrance, and Francesca Fellowes of Squire Patton Boggs. They further note that of those how have seen an increase in DSARs, 67% have experienced increased response costs, 27% have added people to handle the responses, and 20% have adopted new software or technology.

CCPA all day, every day –

• Like a Butterfly, Will the CCPA Continue to Evolve?
  Rebecca Mackin, Craig Cardon, Rachel Tarko Hudson, Liisa Thomas, and Brian Anderson (Sheppard Mullin) (May 28)
• CCPA Bill Expanding Class Actions Fails but The Persistence of Chaos Succeeds
  Hunter Ferguson and Romaine Marshall (Stoel Rives) (May 28)
• Ad and Publishing Industries Confront CCPA Challenges While Congress Considers Privacy
  Alan Friel (Baker Hostetler) (May 29)
• Are Credit Unions Covered By The CCPA?
  Gina Carter, Marci Kawski, and David Stauss (Husch Blackwell) (May 29)
• California Assembly Approves Amendments to Exclude Employees from CCPA, Protect Loyalty Programs
  Alysa Zeltzer, Hutnik, and Alex Schneider (Kelley Drye) (May 30)
• Are Employees Classed as Consumers? California State Assembly Speaks to This and Other Concerns
  (Womble Bond Dickinson) (May 31)
• CCPA: Consumers and the Right to Sue
  Christina Kroll (Proskauer) (May 31)
• Senate Committee Blocks CCPA Bill to Expand Private Right of Action
  Joseph Lazzarotti, Jason Gavejian, and Maya Atrakchi (Jackson Lewis (June 3)

NY consumer privacy bill introduced – On May 9, S. 5642, the “New York privacy act”, was introduced in the New York State Senate. According to King & Spalding, the bill “would impose sweeping new requirements upon companies that collect and process consumer data, including a fiduciary-like duty to protect such data.”

State consumer privacy bills losing momentum – Rachel Marmor of Davis Wright Tremaine writes that copy-cat CCPA bills in North Dakota (HB 1485), Hawaii (HCR225), Texas (86(R) HB 4390), and Connecticut (S.B. No. 1108) have been substituted or amended to be study bills.

Possible Massachusetts biometric privacy law – Maryam Casbarro of Davis Wright Tremaine notes that Massachusetts Bill S.120 contains a biometric provision, one designed to avoid the “standing” pitfalls faced by plaintiffs in other states. The states have biometric privacy laws in place: Illinois, Texas, and Washington.  At least nine other states have tried to implement their own privacy laws addressing biometric data: Alaska, California, Connecticut, Delaware, Florida, Michigan, New Hampshire, New York, and North Carolina.

Jury awards up to $68M in privacy-related damages – Joseph Lazzarotti, Jason Gavejian, and Maya Atrakchi of Jackson Lewis report that a Pennsylvania jury awarded $1,000 to each of 68,000 class members who claimed in a matter brought in the Eastern District of Pennsylvania that several municipal entities violated Pennsylvania’s Criminal History Records Information Act by making criminal records public.

LEGAL TECHNOLOGY & DIGITAL TRANSFORMATION

Duty of technology competence, part 1 – Bob Ambrogi reports that the District of Columbia Bar Rules of Professional Conduct Review Committee has recommended changes to the DC Rules of Professional Conduct that would underscore that lawyers’ duty to provide competent representation extends to the use of technology and their duty to protect client information confidentiality includes the responsibility to protect against unauthorized access.

Duty of technology competence, part 2 – In Louisiana Misses The Mark On Technical Competence? Not So Fast My Friend!, Tom O’Connor responds to Bob Ambrogi’s post criticizing Louisiana’s ethics opinion on lawyers’ use of technology.

Technology for law (and computer science) students – Norton Rose Fulbright, Bryter, and York Law School are working together to develop a law and technology module for third year law and computer science honors students, reports Artificial Lawyer.

E-DISCOVERY CASE LAW

Recent e-discovery decisions

5/21/2019 – U.S. Magistrate Judge Frank McCarthy denied without prejudice plaintiff’s FRCP 37 motion for sanctions for willful destruction of evidence. Defendant terminated plaintiff’s employment on 7/5/2018. Plaintiff sued on 10/23.  On 10/29 defendant instructed plaintiff to preserve ESI. Defendant, however, did not preserve the company computer used by plaintiff but instead gave it to a charitable organization on 11/3. The Court found that defendant should have preserved the computer and that the defendant was solely and entirely at fault for not taking reasonable steps to do so. The Court also found, however, that plaintiff had not been prejudiced by this failure (“In this case there has been no showing that any information necessary to the prosecution of Plaintiffs’ claims or necessary to counter the defenses asserted is unavailable to them.”) and denied the motion without prejudice to reassertion. Mafille v. Kaiser-Francis Oil Co., No. 18-CV-586-TCK-FHM (N.D. Okla. May 21, 2019).

ANNOUNCEMENTS

ADDITIONAL ARTICLES

UPCOMING EVENTS

Conferences, webinars, and the like can provide insight into where e-discovery, information governance cybersecurity, and digital transformation are heading

6/6/2018-7/5/2019 EVENTS

SEE PAST WEEKLY REPORTS HERE

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.