Weekly Trend Report – 4/11/2019 Insights

by Association of Certified E-Discovery Specialists (ACEDS)
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Association of Certified E-Discovery Specialists (ACEDS)

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

EDRM Annual Workshop – Join us for the Duke/EDRM Annual Workshop to be held May 15-17 at Duke Law School in Durham, NC. The annual Duke/EDRM workshop brings together highly motivated judges, practitioners, consultants, service providers, and software vendors to work collaboratively on exciting and challenging ediscovery projects that impact the industry and the profession.   Members attend to pending projects, provide their collective wisdom and guidance on challenges, problems, and issues encountered in ongoing projects, and propose and discuss new projects.

4/8/2019 – BDO Expands Global E-Discovery Capabilities
BDO First to Offer Cloud-Based E-Discovery Solution RelativityOne in Brazil

4/10/2019 – Inside E-Discovery & Beyond: In-House Legal Departments Embrace Digital Transformation—New BDO USA Survey

E-DISCOVERY

Acquisitions – On April 3, Epiq announced it had acquired Canadian e-discovery provider H&A eDiscovery. The same day, EY announced it had acquired Pangea3 from Thomson Reuters.

What judges want – David Horrigan of Relativity summarizes the points discussed at the judges panel he moderated during the recent UF Law E-Discovery Conference. The panel, comprised of U.S. District Judge Gary Jones, Magistrate Judges Patricia Barksdale, Daniel Irick, William Matthewman, and Mac McCoy and retired Florida Circuit Court Judge Ralph Artigliere, ranged wide, addressing cooperation, boilerplate, sanctions, and why what judges want matters.

ESI and attorney-client privilege – In an ABA article, John Barkett, a partner at Shook Hardy and a member of the Federal Advisory Committee on Civil Rules, discusses five privilege issues. As to e-discovery, he focuses on using FRE 502 to avoid waiver.

How to avoid ESI disasters – In another ABA article, Shook Hardy lawyers Patrick Oot and Adam Shoshtari offer guidance on ways to avoid the many disasters e-discovery throws into attorneys’ paths. Advice includes to know the rules; get involved early; select vendors with care; put into effect ESI protocols and protective orders; make generous use of logs, charts, and forms to manage and track e-discovery activities; appreciate the limits of 30(b)(6) depositions; and figure out how to work with opposing counsel.

Potential blockchain discovery issues – In a Legaltech News article, Skadden attorneys Stuart Levi, Alexander Drylewski, Giyoung Song, and Thania Charmani discuss potential issues of first impression when discovery of blockchain ESI kicks in. The article focuses on four challenges: who has possession, custody or control of the data; the extent to which such data is admissible; jurisdictional challenges; and where smart contracts, which may be used to conduct blockchain transactions, fit in.

INFORMATION GOVERNANCE

CYBERSECURITY & DATA PRIVACY

BakerHostetler 5th Annual Data Security Incident Response Report – BakerHostetler announced the release of its 2019 Data Security Incident Response Report. Drawing on data from 750 potential incidents in 2018, the report discusses trends, including phishing as the leading cause of incidents, a rise in the number of and a decrease in the average cost of forensic investigations, increased scrutiny from regulators, and corporation improvements in containment and investigation times. The report also offers a series of findings and recommendations. Summaries of the 2018 and 2017 reports also continue to be available.

What CCPA means to companies – In a Legaltech News article, Reed Smith attorneys Samuel Cullari and Alexis Cocco offer their thoughts on what the California Consumer Privacy Act (CCPA), slated to become effective on 1/1/2020, means for companies doing business in California, particularly required contractual provisions and consumer requests for access, deletion, or opt-out of sale of their data. They also warn that copycat legislation is coming, with legislation passed in Washington state and bills advancing in Hawaii, Maryland, Massachusetts, New Jersey, New Mexico, and Rhode Island.

CCPA Q&A – In a recent post, BakerHostetler attorneys Alan Friel, Laura Jehl,and Melinda McLellan tee up 10 CCPA questions and offer their answers. Questions include to whom the CCPA applies, whether it is likely to be amended, what rights it gives, what companies need to do in response, how copycat legislation compare, and what penalties could be incurred.

After California, Washington – Two articles by Manatt attorneys, Washington State Appears Next in Line for Comprehensive Privacy Legislation and Will Washington Be the Next California?, discuss the Washington Privacy Act, likely to become the second major privacy US law after the CCPA.

DFS’s “Cybersecurity Requirements for Financial Institutions” – In another Legaltech News article, Patterson Belknap attorneys Craig Newman and Kade Olsen warn that the New York’s Department of Financial Services’ cybersecurity regulation, which took effect two years ago, is requires regular vigilance in the forms of such actions as vulnerability assessments, penetration testing, CISO reports, encryption alternatives, compliance certifications, exemption certifications, risk assessments, review of access privileges, appropriate data retention and disposition, on-going maintenance, breach notices, and interactions with third-party vendors.

Data protection in Malyasia – Sidley lawyer Yuet Ming Tham notes that Malaysia is planning to amend its data protection laws to introduce a data breach notification regime and expand the rights of data subject. The current law is the Malaysia Personal Data Protection Act.

LEGAL TECHNOLOGY & DIGITAL TRANSFORMATION

Debunking legal AI – From “there is no ‘AI’” to “smart contracts are not smart”, Michael Grupp of BRYTER offers 25 thoughts about how legal AI is not living up to the hype.

The ethics of cloud computing – According to an Above the Law article by Nicole Black and a page maintained by Bob Ambrogi of Law Sites, 24 states have issued formal or informal ethics opinions that conclude it is ethical for lawyers to use cloud computing:

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  Estimated Year
Jurisdiction 2006 2008 2009 2010 2011 2012 2013 2014 2015 2016 2018
Alaska               2014-3      
Alabama       2010-02              
Arizona     09-04                
California       2010-179   2012-184          
Connecticut             2013-07        
Florida             12-3        
Illinois                   16-06  
Iowa         11-01            
Maine   194         207        
Massachusetts           12-03          
New Hampshire             2012-13/4        
New Jersey 701                    
New York       842              
Nevada 33                    
North Carolina           2011 06          
Ohio             2013-03        
Oregon                 2011-188 (revised)    
Pennsylvania         2011-200            
Tennessee                 2015-F-159    
Texas                     680
Vermont       2010-06              
Virginia             1872        
Washington           2215          
Wisconsin                     EF-15-01
--> Scroll to see full table data

E-DISCOVERY CASE LAW

Recent e-discovery decisions

3/27/2019 – U.S. District Judge William K. Sessions III denied plaintiffs motion to compel defendant to produce relevant ESI from an initial population of approximate 24,000 emails, described as a “massive database” of information. Defendant had produced over 3,000 pages of documents. Plaintiffs sought more. The Court previously had ordered the parties to cooperate on this issue; that did not produce a workable solution. The Court found that defendant had tried to comply but that the information sought by plaintiffs was not reasonably accessible. Determining that additional efforts by defendant were unlikely to yield a significant quantity of responsive information, the Court decided that it would not order defendant to engage in further problem-solving. Lareau v. Nw. Med. Ctr., No. 2:17-cv-81 (D. Vt. Mar. 27, 2019).

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