[author: George Socha]

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

E-DISCOVERY

BDO’s 2019 predictions: The year of digital transformation – In today’s evolving digital landscape, corporate and legal technologies are changing at a rapid pace. What does this mean for e-discovery in 2019? BDO professionals share their top five e-discovery predictions for the year.

Acquisitions – Provider OpenText announced it had acquired provider Catalyst Repository Systems, Inc.

Advice from government attorneys on handling investigations – At the Legaltech session “The Government Reference Model”, reported on by Legaltech News, Department of Justice lawyer Allison Stanton and Consumer Financial Protection Bureau attorney Glenn Melcher offered advice to counsel dealing with investigations. Key points: Identify whistleblowers before they id you, and then address their complaints before those lead to investigations. As you do your detective work, dig into the data, of course, but talk with people as well. When meeting with government attorneys, know the key custodians and the facts of the case, and bring someone who knows the data and the organization. Finally, guard your reputation zealously; it is the most important capital you have.

Advice from in-house counsel on approaches to e-discovery – At the Legaltech session “Rethinking Your E-Discovery Approach for In-House Counsel”, reported on by Legaltech News, counsel from AIG, Purdue Pharma, and JPMorgan Chase & Co. suggested that in-house attorneys evaluating e-discovery processes for their companies be sure to assess risks and costs associated with those processes.

A judicial take on e-discovery – At the Legaltech session “Legaltech Keynote: Judges Panel”, reported on by Legaltech News, current Federal judges Joy Conti, Elizabeth Laport, and Kimberly Priest Johnson and retired judge Andrew Peck offered their thoughts on a wide range of e-discovery topics including the the growing focus on proportionality and the ongoing challenges attorneys and judges face in learning how to deal with new forms of technology.

Mobile devices matter – At the Legaltech session “What’s in Your Smartphone? Mobile Device and Email Investigation Strategies and Stories”, reported on by Legaltech News, the speakers emphasized that hard though it may be to obtain, mobile device content matters a lot.

New Relativity pricing – Relativity announced 5 changes to its pricing model, according to Legaltech news: lower overall data fees; a less costly RelativityOne-only model; unlimited analytics in RelativityOne; a one or three year monthly usage subscription model; and a provider option to allow vendors to offer RelativityOne tenants for managed services arrangements.

CYBERSECURITY & DATA PRIVACY

Chief Privacy Officers offer tips on increasing data privacy efforts – At a Data Privacy Day meeting, reported Legaltech news, Chief privacy officers offered tips to in-house counsel on developing strong data privacy programs: implement privacy by design; send the message from the top down; make data privacy information accessible; include non-lawyers in the process; and build trust with consumers.

European Commission provides summary of GDPR so far – Sidley reported that the European Commission published a statement on 1/25/2019 indicating that the Commission considers the GDPR to have had a positive effect and highlight activity to date, including that data protection authorities have received 95,180 complaints from individuals, organizations have reported 41,502 data breach notifications to local DPAs, and DPAs have launched 255 investigations.

In-house counsel discuss GDPR challenges – At the Legaltech session “Cross-Border Investigations: Protecting the Privilege and Meeting Privacy Expectations”, reported on by Legaltech News, in-house attorneys from GSK, Sanofi US, and Ingersoll Rand reported reactions to GPDR ranging from “not much change” to “my hair started turning white”.

GDPR readiness appears to help avoid cyber intrusions – As reported by Peter Vogel, a Cisco study, Data Privacy Benchmark Study, states that “GDPR-ready organizations have also experienced fewer data breaches, and when breaches have occurred, fewer records were impacted, and system downtime was shorter. As a result, the total cost of data breaches was less than what organizations not ready for GDPR experienced.”

LEGAL TECHNOLOGY & DIGITAL TRANSFORMATION

Lawyers encouraged to learn IT now – At Legaltech’s opening keynote address, reported on by Legaltech News, former U.S. Attorneys General Loretta Lynch and Alberto Gonzales advised law students and lawyers alike to build their IT skills as well as to learn the law for and about technology.

But does lawyer tech competency conflict with access to justice? – At the Legaltech session “Access to Justice: Substantial Challenges and How You, the Law and Technology Can Help”, reported on by Legaltech News, at least some of the speakers seemed concerned that duty that lawyers be technologically competent might actual reduce access to justice.

Lawyers lukewarm about the cloud but getting warmer – At the Legaltech session “The International Legal Cloud 2019: Discovery Security and Business Considerations”, reported on by Legaltech News, panelists opined that lawyers, while still hesitant about using the cloud, increasingly are focusing more on the cloud’s benefits than it risks.

E-DISCOVERY CASE LAW

Recent e-discovery decisions

1/24/2019 – Reversing a lower court decision, a New York appellate court ruled that private social media information was discoverable and granted defendant’s motion to compel access to plaintiff’s devices, email accounts, and social media accounts to obtain evidence of plaintiff’s activities.  Vasquez-Santos v. Mathew, 8210N, 158793/13 (Appellate Division of the Supreme Court of New York, First Department, January 24, 2019).

1/25/2019 – The Illinois Supreme Court unanimously hold that a plaintiff does not need to allege actual injuries or damages to state a claim under the Illinois Biometric Information Privacy Act, reported Sidley. Rosenbach v. Six Flags Entertainment Corp., 2019 IL 123186 (Jan. 25, 2019).