7 More Takeaways from Legalweek(year) 2021

Association of Certified E-Discovery Specialists (ACEDS)

Legalweek was originally supposed to take place on location in New York this year, as it always does. However, for 2021 it has been transformed into a series of five interactive virtual events to be held throughout the year—hence the updated title of legalweek(year).

In a previous blog post, I discussed some of the key takeaways from the first of these events, which took place February 2 – 4. Two more virtual events have since taken place (one on March 16 and one on April 13), so this article provides seven more takeaways from these sessions.

1. It’s Official: Slack Content Is Discoverable

As Pagefreezer discussed during our own Legalweek session, courts have recently shown a clear willingness to compel the production of team collaboration content. In the case of Benebone v. Pet Qwerks, the defendants filed a motion to compel production of Slack content, which Magistrate Judge Alexander F. MacKinnon granted, stating that “requiring review and production of Slack messages by Benebone is generally comparable to requiring search and production of emails and is not unduly burdensome or disproportional to the needs of this case…”

In other words, Slack communications are discoverable and will generally be treated in the same manner as emails. This places tremendous pressure on legal teams who will be expected to find, review, and even produce thousands upon thousands of group chats and direct conversations.

2. Collaboration Data Is Causing Huge Legal Headaches

In a poll conducted during Pagefreezer’s Legalweek session, 64% of attendees stated that the unstructured data from collaboration tools like Slack and Microsoft Teams were increasingly causing eDiscovery challenges within their organizations. A further 12% said that collaboration data was a significant problem and really slowing down eDiscovery processes.

While the sample size is relatively small, the result was consistent with what many speakers and panelists at Legalweek were saying: The real-time, multi-faceted nature of these data sources are making it difficult to incorporate them into traditional eDiscovery workflows.  

3. Companies Need a Data Map & Clear ESI Protocols

With so much ESI being created through collaboration platforms and digital communication tools, it’s imperative that organizations have a data map (or data inventory) that provides instant insight into the data sources a company has, the information being collected, and where this data is being stored.

Legal teams also need to create ESI protocols that outline repeatable processes and clear methodologies for activities like legal hold, collection, processing, review, and production. ESI protocols should also help identify custodians and other key stakeholders, and make it clear how ESI should be exchanged, formatted, etc.

4. Always Think About Production & Presentation

For legal teams, getting a handle on all the ESI an organization generates is a pivotal step—but it’s only half the battle. When dealing with modern data sources like team collaboration tools, social media platforms, text messages, and website content, it’s also important to consider how this evidence will ultimately be produced and presented in court.

Should a case make it all the way to court, evidence needs to be presented in a format that a jury would understand and be familiar with. Traditionally, legal teams have relied on simple screenshots, but the authenticity of this evidence is increasingly being called into question. In addition to being intuitive and easy to understand, evidence now also needs to be authenticated and defensible—which means ESI must have the necessary hash values and metadata.

5. Don’t Forget About Text Messages

As one speaker at Legalweek said: “Considering how much the average person relies on text messaging for communication, it’s suspicious how often text messages aren’t included on lists of ESI to be collected.” Chances are, employees are using text messages to communicate with each other and with external partners and customers, so legal teams should always be considering this common data source.

Text messages and chat apps like WhatsApp have been central to many cases. But as these legal matters have also shown, being able to prove authenticity is key. Legal teams must find a solution for collecting and preserving text messages in a defensible format.

6. Human Review Isn’t Going Anywhere

Predictably, AI (artificial intelligence) and TAR (technology-assisted review) have been hot topics at Legalweek(year) 2021. As data sources increase and legal teams are forced to deal with overwhelming amounts of ESI, AI-driven tools represent an obvious solution.

But while these tools do offer incredible benefits and will undoubtedly reshape the industry in the coming years, it’s also clear that human review isn’t quite a thing of the past yet. Here are a few reasons why AI isn’t quite ready to take over from human reviewers:

  • Whenever a crucial decision needs to be made in the review process, you still need a human reviewer to make that decision.
  • Human review remains the basis for the algorithms behind AI review. In other words, we’re still relying on expert human reviewers to “train” AI tools in how document review should be done.
  • AI struggles to deal with certain kinds of ESI, like video and drawings, etc.
  • AI performs best when it can draw on massive data sets. When an AI solution has to deal with a small data set, it often struggles.
  • ESI protocols typically change significantly between the start and the conclusion of a case. This means that AI can’t simply be left to go about the business of review as a case goes on. Significant human review and intervention is inevitable during a lengthy legal matter.     

7. Technical Competence Is a Must for Every Legal Professional

While it’s obviously crucial that eDiscovery professionals stay up to date with the latest tools and technologies, technical competence is now a must for every legal professional. As one Legalweek speaker put it: “Clients don’t want to pay for your old playbook. They also don’t want to feel like they are teaching their lawyers about technology.”

As data sources increase, ESI evolves, and AI plays an increasingly important role in the legal space, legal professionals will have to educate themselves and improve their technical competence to ensure they remain relevant in this new digital environment.

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