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

Relativity Fest Oct. 20-23 – Join us this month at Relativity Fest in Chicago where my colleagues and I will be speaking on four sessions:

• PD311742 – A Call to Action: Building an e-Discovery Pro Bono Platform and Network (10/21 at 11:00 am)
  George Socha
• PR325354 – Global Expansion with RelativityOne (10/21 at 2:35 pm)
  Jenna Aira-Ventrella with Luke Balloch of Relativity, Chris Morris of Control Risks, Daryl Teshima of FTI Consulting, Andrew Caspersonn of Allen & Overy, and Andrew Malarkey or KordaMentha
• LIE291972 – Is It Time to Rethink the EDRM? (10/22 at 8:30 am)
  George Socha with Mike Quartararo of eDPM Advisory Services, Darcie Spruance, Constantine Pappas of Relativity, and Phil Favro of Driven
• PR311751 – Let’s Take This Online: Managing Mobile Data in Relativity Short Message Discovery (10/22 at 2:45 pm)
  George Socha with Martha Louks of McDermott

The Master’s Conference Oct. 28-29 – Join us October 28-29 at the offices of Sidley Austin LLP, Washington, D.C. for the Master’s Conference. On Oct. 28 at 4:15 pm, Trent Livingston of ESI Analyst, Tracy Drynan of Cleary Gottlieb Steen & Hamilton, Greg Freemyer of SullivanStrickler LLC, and I will participate in a panel discussion on “Emerging Data Sources: Connecting the Dots on Disparate Data”.

BDO knows CCPA – BDO’s California Consumer Privacy Act resource page enables privacy executives to stay abreast of the impending regulation and learn about overarching privacy and governance considerations in one convenient location.

ELECTRONIC DISCOVERY

Mike Quartararo and Ari Kaplan join ACEDS – As noted by Bob Ambrogi of LawSites, Stephen Fredette, the Chairman and CEO of BARBRI, announced that on Oct. 1 Mike Quartararo joined the organization as President of ACEDS and Professional Development and that Ari Kaplan will consult with the company to help build a new ACEDS Global Advisory Board and act as Chairperson for that group.

Third-party subpoenas and the duty to preserve – U.S. District Judge J. Michelle Childs and Ethan Bercot (Nelson Mullins) prepared an article published by the American Bar Association discussing third-party subpoenas and the duty to preserve. Their conclusion: companies generally have a duty to preserve data responsive to a third-party subpoena; and if the company determines that (a) the subpoena should not cause it to reasonably anticipate becoming a party in litigation and (b) there are not other independent obligations to preserve the data at issue, then the company likely will be able to limit the costs and disruptions involved in responding.

Missouri updated its e-discovery rules – Rachel Harris of Thompson Coburn wrote that the Missouri governor signed into law Senate Bill 223 which amended that state’s discovery rules to, among other things, attempt to bring the state’s e-discovery rules more in line with the Federal Rules of Civil Procedure.

Complex commercial litigation described – In e-discovery circles we frequently talk about “complex commercial litigation” but how many of us have a solid understanding of what that means? Ryan Frei and Ashley Peterson of McGuireWoods have prepared a primer that covers the basics and more.

The CLOUD Act – Attention is starting to focus on the Clarifying Lawful Overseas Use of Data Act (the CLOUD Act):

• Cloud Act Resources
  S. Department of Justice page that includes FAQs as well as various statements and agreements related to the act
• The CLOUD Act: US framework for gathering electronic evidence
  Nyman Gibson Miralis
• S. CLOUD Act and GDPR – Is the cloud still safe?
  Peter Church and Caitlin Potratz Metcalf (Linklaters) (Sept. 13)
• S. and U.K. Ease Data Collection Across Borders
  Thomas Zeno (Squire Patton Boggs) (Oct. 7)

30(b)(6) dos and don’ts – Tom O’Connor has prepared a set of six posts on the dos and don’ts of 30(b)(6) depositions:

• DOS and DON’TS of a 30(b)(6) Witness Deposition: Introduction
• DOS and DON’TS of a 30(b)(6) Witness Deposition, Part Two: Initial Considerations
• DOS and DON’TS of a 30(b)(6) Witness Deposition, Part Three: Proposed Rule Change
• DOS and DON’TS of a 30(b)(6) Witness Deposition, Part Four: Common Mistakes
• DOS and DON’TS of a 30(b)(6) Witness Deposition, Part Five: Specific Strategies to Consider
• DOS and DON’TS of a 30(b)(6) Witness Deposition, Part Six: Conclusions

CYBERSECURITY & DATA PRIVACY

NIST released Privacy Framework preliminary draft – Covington reported that the U.S. Department of Commerce’s National Institute of Standards and Technology has released a preliminary draft of the “NIST Privacy Framework: A Tool for Improving Privacy through Enterprise Risk Management”. NIST will be taking public comments through Oct. 24.

Maine and Nevada privacy laws – Sean Klammer of Porter Wright prepared an overview of Nevada’s privacy law, which became effective on Oct. 1, and Maine’s new Broadband Internet Access Service Customer Privacy act, which is scheduled to take effect on July 1, 2020.

CCPA –

• Analyzing the California Legislature’s Changes to the California Consumer Privacy Act
  David Stauss, Bob Bowman, Lauren Cabral, and Ephraim Hintz (Husch Blackwell) (Sept. 16)
• Latest California Consumer Privacy Act Amendments Impact Business Compliance Initiatives
  Sharon R. Klein, Alex C. Nisenbaum, Jeffrey M. Goldman, and Taylor Jon Torrence (Pepper Hamilton) (Sept. 16)
• CCPA Update: How to Adjust Your Compliance Strategy to The Final 2019 Legislative Changes
  John M. Brigagliano and Jon Neiditz (Kilpatrick Townsend) (Sept. 16)
• California AB 25 Passes Both Houses – Employee Information Is Excluded from the CCPA …Until 2021
  Ciera Logan (Fox Rothschild) (Sept. 17)
• California Legislature Adopts Five Amendments to CCPA, But Largely Rejects Industry Efforts
  Gregory Szewczyk and Philip N. Yannella (Ballard Spahr) (Sept. 17)
• CCPA Amendments Pass as the California Legislative Session Draws to a Close
  Ropes & Gray (Sept. 17)
• What California’s New AB 5 Law Means for Employers
  Daniel J. McCoy and Minal Haymond (Fenwick) (Sept. 18)
• CCPA Exceptions: What Qualifies as Activity ‘Wholly Outside’ of California?
  Arielle Brown and Melinda L. McLellan (BakerHostetler) (Sept. 18)
• Does the California CCPA apply to UK businesses?
  Andrew Kimble and Peter Given (Womble Bond Dickinson) (Sept. 18)
• CCPA: Expansive Array of Consumer Rights Imposes Rigorous Compliance Burden
  Damon W. Silver and Catherine R. Tucciarello (Jackson Lewis) (Sept. 18)
• CCPA Exceptions: What Qualifies as Activity ‘Wholly Outside’ of California?
  Arielle Brown and Melinda L. McLellan (BakerHostetler) (Sept. 18)
• IAB Previews Solution for Interest-Based Advertising and CCPA ‘Do Not Sell’ Right
  Kyle R. Fath, Gerald J. Ferguson, Alan L. Friel, and Linda A. Goldstein (BakerHostetler) (Sept. 19)
• CCPA’s Potential Impact in the Automotive Space, Part I
  Sarah L. Bruno and Eva J. Pulliam (Arent Fox)
• California Consumer Privacy Act Comes Into Focus as Amendments Pass Legislature
  Amie Peele Carter, Mitchell S. Noordyke, Jigar D. Gandhi, and Michael Jaeger (Faegre Baker Daniels) (Oct. 7)
• New California Ballot Initiative Aims to Toughen Up CCPA
  Sharon R. Klein and Alex C. Nisenbaum (Pepper Hamilton) (Oct. 7)
• Locke Lord QuickStudy: Deletion Completion under the CCPA
  Molly McGinnis Stine and Paul B. Sudentas (Locke Lord) (Oct. 7)
• Some Reprieves in New California Consumer Privacy Act Amendments
  Frederick C. Bingham, Robert M. Holland, Kimberly Arouh, and Sue C. Friedberg (Buchanan Ingersoll & Rooney) (Oct. 7)

GDPR –

• GDPR: What are the grounds for processing personal data during an investigation?
  Lara White, Andrew Reeves and Sarah Greenwood (Norton Rose Fulbright) (Sept. 10)
• S. CLOUD Act and GDPR – Is the cloud still safe?
  Peter Church and Caitlin Potratz Metcalf (Linklaters) (Sept. 13)
• User consent for storing and accessing cookies in light of the recent decision of the Court of Justice of the European Union
  Zdeněk Kučera and Štepánka Havlíková (Kinstellar) (Oct)
• Belgian DPA Announces Fine for Disproportionate Use of Customers’ eID Card
  Hunton Andrews Kurth (Oct. 1)
• Google’s win: Right to be (almost!) forgotten limited to EU
  Razia Begum (Taylor Vinters) (Oct. 7)
• Territorial Scope of Right to be Forgotten
  Aslı Naz Ünlü (Herdem) (Oct. 8)

INFORMATION GOVERNANCE

2019 ILTA Legal Tech Survey Executive Summary released – Sharon Nelson of Sensei Enterprises  reported that the International Legal Technology Association has released an executive summary of its 2019 Technology Survey, which looks at what law firms are doing with technology. The full survey, to be released later this month, will be available to ILTA members for $500.

LEGAL TECHNOLOGY & DIGITAL TRANSFORMATION

Michigan 37^th state to adopt ethical duty of competence for lawyers – Bob Ambrogi of LawSites reported that the Michigan Supreme Court issued an order adopting a variation of Model Rule 1.1, Comment 8, of the American Bar Association’s Model Rules of Professional Conduct – making it the 37^th state of adopt the ethical duty of competence for lawyers. The amendment takes effect on Jan. 1, 2020.

E-DISCOVERY CASE LAW

Recent e-discovery decisions

8/22/2019 – U.S. District Judge Edward Davilla denied a motion to modify a special master’s order authorizing forensic imaging of devices belonging to 10 of more than 90 named plaintiffs and an associated protocol. Plaintiffs moved to have the protocol modified so that defendant’s discovery of devices would be limited to the extraction of “limited diagnostic data” instead of full forensic imaging, asserting that allowing full forensic imaging would constitute an invasion of privacy. First, the Court found that plaintiffs “have a legally protected privacy interest in their devices, that their expectation of privacy in their phones is reasonable, and that the threatened invasion is serious.” The Court determined that while full forensic imaging is a significant invasion of plaintiffs’ privacy, the “robust protections” in place adequately protected that privacy; those protections, too numerous to relate here, warrant reading.  Next, the Court found that defendant has a compelling need to obtain the discovery. Only by obtaining full forensic images of plaintiffs’ devices would defendant be able to test the performance of those devices, performance that is integral to plaintiffs’ claims. The Court rejected as unpersuasive plaintiffs’ argument that a less intrusive approach, extraction of limited diagnostic data, would be sufficient. In Re: Apple Inc., No. 5:18-md-02827-EJD (N.D. Cal. Aug. 22, 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

10/10/2018-11/8/2019 EVENTS