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
ABOVE THE FOLD
Join Mary Mack and me for a new ACEDS webinar series, Monthly Insights with George & Mary, starting Wed. Aug. 7
ACI Automotive Product Liability Litigation conference – Join BDO’s Jenna Aira-Ventrella and Anthony Monaco of Swanson, Martin & Bell as they moderate a panel of in-house counsel from Toyota, General Motors, Volkswagen, and Nissan for a July 18 discussion, Automotive Manufacturers In-House Counsel Think Tank: Managing Litigation, Containing Cost and Achieving Resolution, at ACI’s 2019 Automotive Product Liability Litigation in Chicago. And join BDO’s Mark Antalik along with Sarah Bruno of Arent Fox, Cherly Falvey of Crowell & Moring, and Steven Wernikoff of Honigman for a session cyber security and data privacy session later that day, Cyber Security Threats Connected to Autonomous Technologies: Privacy Concerns with EDR and Data Acquisition.
Relativity Fest Oct. 20-23 – Join us this fall at Relativity Fest in Chicago where I will be speaking on three sessions: LIE291972 – Is It Time to Rethink the EDRM?; PD311742 – A Call to Action: Building an e-Discovery Pro Bono Platform and Network; and PR311751 – Let’s Take This Online: Managing Mobile Data in Relativity Short Message Discovery.
ELECTRONIC DISCOVERY
Translating with AI – Elizabeth Beattie of Asian Legal Business reported that Hogan Lovells worked with Knovos to use AI to translate and scan Korean documents for a DOJ investigation, saving, according to the firm, 8,300 hours of review time.
Turning the e-discovery tables – James Beck of Reed Smith discussed implementation of a plaintiff-focused e-discovery strategy in the Taxotere MDL.
July’s Notable Cases and Events in E-Discovery – From Sidley, summaries of People v. Spicer, 2019 IL App (3d) 170814 (Ill. App. Ct. Mar. 7, 2019), Shamrock-Shamrock, Inc. v. Remark, 2019 WL 1868175 (Fla. Dist. Ct. App. Apr. 26, 2019), Flynn v. FCA US LLC, 2019 WL 1746266 (S.D. Ill. April 18, 2019), and Franklin v. Ocwen Loan Servicing, LLC, 2019 WL 1130477 (N.D. Cal. Mar. 12, 2019).
CYBERSECURITY & DATA PRIVACY
1,000+ Android Apps gathered personal data after device owners denied permission –Curtis Franklin of Dark Reading reported that according to data presented at the Federal Trade Commission’s PrivacyCon 2019 in June by researchers from the International Computer Science Institute, as many as 1,325 Android apps continued to gather consumer data from devices even after the device owners denied permission to the apps. The data presented was based on work presented in a Feb. paper, 50 Ways to Leak Your Data: An Exploration of Apps’ Circumvention of the Android Permissions System prepared by researchers from the University of Calgary, U.C. Berkeley, and the IMDEA Networks Institute.
Schrems II – Gregory Bufithis prepared an overview of the July 9 Schrems II hearing in Luxembourg’s Court of Justice of the European Union (CJEU). The central question before the CJEU, as described by Bufithis, is whether U.S. law on access of national security agencies to personal data of non-nationals (the U.S. Foreign Intelligence Service Act) breaks European data protection laws and if so whether that invalidates currently legal data transfer mechanisms including standard contractual clauses, Privacy Shield, and other contractual arrangements. A non-binding opinion is expected by Dec. 12 and a full decision by early 2020.
Industries seek uniform federal privacy law – Esther Slater McDonald of Seyfarth Shaw reported that on July 11 a coalition of 27 industry groups representing a diverse group of businesses across the economy sent a letter to the Senate and House commerce committees, asking Congress “to act quickly to adopt a robust and meaningful national consumer privacy bill to provide uniform privacy protections for all Americans.”
2018–2019 NACD Public Company Governance Survey results – The National Association of Corporate Directors Risk Oversight Advisory Council has published Current and Emerging Practices in Cyber-Risk Oversight, the results of its 2018–2019 NACD Public Company Governance Survey. The top three insights, according to the report, are (1) at its core, cybersecurity is a people issue, and boards should tailor their oversight activities accordingly, (2) cyber-risk reporting to the board should evolve to keep pace with the changing needs of the organization, and of the board itself, and (3) boards should ask how their companies are engaging in information-sharing within their own industries and with the public sector.
Is insurance coverage for cyber claims barred by a war exclusion? – That is the question posed and discussed in a recent IAPP article written by Judy Selby of Judy Selby Consulting and Peter McLaughlin of Womble Bond Dickinson.
GDPR –
- GDPR: One Year On
The Information Commissioner’s Office has published GDPR: One Year On, an 18-page update reflects the ICO’s experiences over the past year and shares what they have learned about the GDPR and its impact in that time. They describe some of the work they have undertaken toward achieving the six goals set out in their strategic plan, and then discuss what they plan to focus on moving forward. - Dutch DPA: Banks May Not Use Payment Data for Marketing Purposes
Joke Bodewits and Benjamino Blok (Hogan Lovells) (July 10) - Late-Night Hearing on CCPA Amendments Delivers Mixed Bag
Delilah Clay and Brandon Reilly (Manatt) (July 11) - From the Field: Perspectives on GDPR, One Year Later
Sam Bock (Relativity) (July 12)
CCPA –
- California Senate Judiciary Committee Advances Amendments to the CCPA
Gregory Szewczyk and Alexia Chapman (Ballard Spahr) (July 10) - Consumer Rights Under the CCPA, Part 1: What Are They?
Emily Bruemmer (Davis Wright Tremaine) (July 10) - CCPA Update – Maybe Employees Are “Consumers” After All – Employee PI is Still In Play
Jason Gavejian and Joseph Lazzarotti (Jackson Lewis) (July 11) - Can You Write the California AG with Questions About CCPA Compliance?
John Clabby (Carlton Fields) (July 11) - The CCPA: Employee Data Requirements May Be Delayed, But Do Not Appear to be Going Away
Sarah Bhagwandin (Bryan Cave Leighton Paisner) (July 12) - California Senate Committee Blesses Majority of CCPA Amendments
Alysa Zeltzer Hutnik and Alex Schneider (Kelley Drye) (July 15)
Biometric privacy legislation – Gerald Maatman, Jr., Thomas Ahlering, and Andrew Cockroft of Seyfarth Shaw discussed the status of biometric privacy litigation across the US, with laws:
- In effect in Illinois, Texas and Washington
- Signed but not yet effective in Arkansas (HB1943) and California (the CCPA)
- Pending in Alaska (B. 72), Arizona (HB 2478), Massachusetts (Bill SD.341), Michigan (House Bill No. 5019), New Hampshire (HB 536), New York (S1203 and S5642), and New York City (Int. No. 1170)
- Introduced by died in Delaware (HB350), Florida (SB 1270), Montana (HB518 and HB645), New Hampshire (HB523).
LEGAL TECHNOLOGY & DIGITAL TRANSFORMATION
Clifford Chance selected AI platform – Artificial Lawyer reported that the global law firm Clifford Chance has chosen Elevate’s legal AI platform, ContraxSuite, to help power its new data science lab.
NIST seeking comment on draft plan for federal engagement in AI standards development – The U.S. Department of Commerce’s National Institute of Standards and Technology (NIST) has announced that it is seeking public comment on a draft plan for federal government engagement in advancing AI standards for U.S. economic and national security needs. Although not directly tied to legal technology, these nascent standards undoubtedly will come into play.
E-DISCOVERY CASE LAW
Recent e-discovery decisions
2/12/2019 – Massachusetts Superior Court Justice Mitchell Kaplan determined that documents had been produced inadvertently as defined by the clawback agreement entered into by the parties and ruled that the receiving party needed return or destroy them. One document was produced after the litigation support firm assisting the producing party failed to properly execute an agreed-upon search protocol. When the producing party realized the error, it asked for return of the document. The second document consisted of a scanned document apparently accidently added to another document and mistakenly treated for purposes of review as a single document. The Court decided that “the disclosure while arguably preventable with more careful attention was nonetheless inadvertent.” Vigor Works v. White Skanska, JV, CA 16-02146-BLS1 (Ma. Superior Ct. Feb. 12, 2019).
7/8/2019 – U.S. Magistrate Judge A. Kathleen Tomlinson ruled that the parties should share the cost of restoring data from backup tapes. The court reached that result by determining that the data at issues was not readily accessible because it is is a format (stored on backup tapes) that needs to be restored or otherwise manipulated to be usable. If the requesting party wishes to have the responding party restore data for 3 custodians and 18 mailboxes from 21 backup tapes at an estimated cost of $26,430, then per the order the requesting party must bear 30% of the cost and the responding party 70%. Tafolla v. County of Suffolk, No CV-17-4897 (E.D.N.Y. July 8, 2019).
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Conferences, webinars, and the like can provide insight into where e-discovery, information governance cybersecurity, and digital transformation are heading
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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.