Weekly Trends Report – 8/13/2019 Insights

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

ABOVE THE FOLD

Join Mary Mack and me for a new ACEDS webinar series, Monthly Insights with George & Mary, starting Wed. Sept. 11.

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

Subpoenaing wearable technology data – In an ABA article, Meghan A. Rigney of Wiedner & McAuliffe offered advice on subpoenaing wearable technology data, in particular FitBit and Apple data.

CYBERSECURITY & DATA PRIVACY

Cyber insurance coverage – Sharon Nelson of Sensei Enterprises noted that Lloyd’s of London has called for insurance policies to be explicit about cyber coverage. In Market Bulletin Ref. Y5258, Llyod’s stated that “Lloyd’s view is that it is in the best interests of customers, brokers and syndicates for all policies to be clear on whether coverage is provided for losses caused by a cyber event. This clarity should be provided by either excluding coverage or by providing affirmative coverage in the (re)insurance policy.” (Emphasis in original.)

NAIC Data Security Model Law – Joseph J. Lazzarotti of Jackson Lewis discussed the National Association of Insurance Commissioners’ Insurance Data Security Model Law and its implications. Adopted by the NAIC in 2017, the Model Law in intended to provide a benchmark for any cybersecurity program.

Delaware insurance data security law – As reported by Riker Danzig, Delaware’s governor has signed the Insurance Data Security Act (House Bill 174), which is based on the NAIC Model Law.

New Hampshire insurance data security law – As reported in a Hunton Andrews Kurth post, New Hampshire’s governor has signed that state’s Insurance Data Security Law (SC 194). The law, effective Jan 1, 2020, requires insurers licensed in the state to put into place data security programs and report cybersecurity events.

CCPA –

GDPR –

Chinese draft guidelines on cross-border transfer of PI – Myles Seto and Sean Wang of Deacons reported that the Cyberspace Administration of China released for public comment a draft version of Measures for Security Assessment of Cross-border Transfer of Personal Information.

Egypt draft data protection law – Youssef Sallam of Al Tamimi & Company wrote that the Egyptian Cabinet of Ministers recently approved a draft data protection law, akin to the GDPR, which is being reviewed by the Parliament of Egypt.

LEGAL TECHNOLOGY & DIGITAL TRANSFORMATION

The current state of play in legal innovation – Jae Um of Baker McKenzie prepared a piece, published in Legal Evolution, examining the current state of play in legal innovative. Returning to a post she put up a year ago, Jae Um looked back at legal innovation over the past decade and finds hope for the future, especially if we are able to be a bit more patient and take a longer view.

E-DISCOVERY CASE LAW

Recent e-discovery decisions

7/10/2019 – Appellate Judges Smith, McKee and Fisher affirmed in part and reversed in part a District Court denial of a motion for default judgment with respect to deleted and unrecoverable emails and remanded the case for a new trial. The appellate court determined that the district court appropriately (1) concluded that the appellee acted in bad faith when it destroyed emails, (2) concluded that spoliation prejudiced the appellant, (3) and opted for the lesser sanction of a permissive adverse inference instruction instead of a default judgment. The appellate court found, however, that the district court erred in excluding expert testimony regarding the appellee’s spoliation, and error that could have affected the outcome of the case as it deprived the jury of testimony that would have been highly probative of whether the jury should adopt the permissive adverse inference. GN Netcom v. Plantronics, No. 18-1287 (3rd Cir. July 10, 2019).

7/11/2019 – U.S. Magistrate Judge Stephan Vidmar denied plaintiffs’ motion for spoliation sanctions for defendants’ failure to preserve and produce photos and excluded testimony or argument at trial concerning the photos. A fire allegedly destroyed 2,647 tons of hay, leaving only smoldering embers. Defendants’ farm manager did not see the fire but claimed to have taken photos, stored only on his cell phone, of the embers. Defendants never produced the photos to plaintiffs and by the time plaintiffs sued apparently the farm manager no longer possessed the photos; defendants’ first notice that plaintiffs intended to sue was the suit itself. Plaintiffs moved for sanctions base on the loss or destruction of the photos, arguing that defendants should have been put on notice of litigation by the fire itself and should have preserved the photos. The Court first determined that because the photos were ESI, FRCP 37(e) foreclosed reliance on the Court’s inherent authority to impose spoliation sanctions. The Court next ruled discovery of the alleged fire was not by itself sufficient to put defendants on notice and hence no duty to preserve the photos had been triggered. The Court then ruled that plaintiffs failed to show that defendants intentionally deprived them of the photos. Finally, the Court ruled that ruled that neither defendants nor plaintiffs would be allowed to mention the photos at trial as the probative value of testimony concerning them is low and potential prejudice powerful. Philmar Dairy, LLC v. Armstrong Farms, No. 18-cv-0530SMV/KRS (D.N.M. July 11, 2019).

ANNOUNCEMENTS

Date Focus Organization Title
5/3/2019 ED UF Law UF Law Launches Florida E-Discovery Case Law Database
8/8/2019 ED iCONECT iCONECT Secures Strategic Capital Funding Helping Lawyers tell ‘Their Winning Story’

ADDITIONAL ARTICLES

Date Focus Publisher Title Authors
8/8/2019 ED

C/DP

Legaltech News With New Funding, iCONECT Looks to Expand Into Data Privacy Compliance Victoria Hudgins
8/9/2019 ED Above the Law Legal Tech: Capital Infusion At Software Company iCONECT Means… Mike Quartararo (eDPM Advisory Services)
8/9/2019 LT/DT Legaltech News How Law Schools’ Online Classes Are Supporting Rise of ‘Virtual Law’ Frank Ready
8/9/2019 ED LinkedIn Can Keywords Still Be Used as a Culling Tool in eDiscovery? Davide Migali (LDM Global)
8/9/2019 C/DP Proskauer Personal Email Management Service Settles FTC Charges over Allegedly Deceptive Statements to Consumers over Its Access and Use of Subscribers’ Email Accounts Jeffrey Neuburger
8/9/2019 C/DP Proskauer Finding Article III Standing, Ninth Circuit Declines to Do an About-Face in Illinois Biometric Privacy Class Action against Facebook Jeffrey Neuburger
8/12/2019 ED Exterro Case Law Alert: Plaintiffs’ Motion for E-Discovery Sanction Goes Up in Smoke Mike Hamilton
8/13/2019 ED LawSites In Advance of #ILTACON19, CloudNine Rolls Out Upgrades Of Its E-Discovery Technology Bob Ambrogi

UPCOMING EVENTS

Conferences, webinars, and the like can provide insight into where e-discovery, information governance cybersecurity, and digital transformation are heading

8/14/2018-9/13/2019 EVENTS

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Start End TZ Type Location Host Title
8/14/19 1:00 PM 8/14/19 2:00 PM ET Webinar   ACEDS Fight PII Challenges with a One-Two Punch: H5 Matter Analytics + Milyli’s Blackout
8/14/19 1:00 PM   ET Webinar   Exterro The Results are In…Top E-Discovery & Records Request Challenges for Government
8/15/19 12:00 PM   CT Meeting Minneapolis, MN MALSP August 2019 MALSP Meeting – Understanding eDiscovery in the Cloud
8/15/19 8:00 AM   ET Webinar   Nuix Say Hello to Nuix Discover
8/15/19 1:00 PM 8/15/19 2:00 PM ET Webinar   ACEDS Benchmarking Discovery Cost Recovery: Highlights From Logikcull’s 2019 Billing Survey
8/15/19 1:00 PM   ET Webinar   ABA What Is Getting Lawyers Into Trouble?: Trends in Disciplinary and Malpractice Actions
8/15/19 2:00 PM 8/15/19 3:00 PM ET Webinar   Lexbe Integrated Foreign Language Document Review
8/15/19 2:00 PM   ET Webinar   DATAVERSITY Data Governance versus Information Governance
8/18/19 8:00 AM 8/18/19 5:30 PM ET Conference Orlando, FL The Masters Conference IT IS Time To Learn How Blockchain, Artificial Intelligence, Cybersecurity And More Will Be Your Magic Kiss To Wake You Up To The 21st Century.
8/18/19 12:00 PM 8/22/19 5:00 PM ET Conference Orlando, FL ILTA ILTACON 2019
8/20/19 12:00 PM 8/20/19 1:00 PM CT Meeting   Dallas Area Paralegal Association DAPA General Memebership Meeting
8/21/19   CT Meeting Arlington Heights, IL ACEDS *Save the Date* ACEDS Chicago Chapter: Rail Stop Rendezvous: Arlington Heights
8/21/19 11:00 AM   ET Webinar   EDRM In-Place ECA Clearly Understand Your E-Discovery Burden Before Collecting Data
8/21/19 11:00 AM   ET Webinar   Cellebrite Digging for Digital Evidence in Human Trafficking
8/22/19 2:00 PM   ET Webinar   DATAVERSITY Data Quality Best Practices
8/27/19 1:00 PM 8/27/19 1:30 PM ET Webinar   CCBJ Brainspace: The Industry’s Most Intuitive Investigative Analytics Platform
8/27/19 1:00 PM 8/27/19 2:00 PM ET Webinar   MER It Takes More Than a Tool: 3 Critical, Yet Simple Practices for Successful Content Analysis and Cleanup
8/28/19 11:00 AM   ET Webinar   Cellebrite Digital Data: New Innovations in the use of Video as an Evidence Source
8/28/19 1:00 PM 8/28/19 2:00 PM ET Webinar   ACEDS ESI in Criminal Investigations and Proceedings: An Overview
8/28/19 1:00 PM   ET Webinar   XDD A Supercomputer in Every Pocket: Mobile Devices in eDiscovery, 2019 Edition
9/2/2019 9/3/2019 AEST Conference Sydney, Australia CLOC CLOC2019 Sydney Institute
9/3/2019 9/5/2019 CT Conference Austin, TX Mitratech Interact 2019
9/3/19 12:00 PM 9/3/19 1:30 PM ET Webinar   High Performance Counsel HPC #ThinkTank: State of the Legal Industry
9/4/19 12:00 PM 9/4/19 1:00 PM ET Webinar   Manatt Preparing for the Open and Hidden Litigation Risks of the CCPA
9/5/19 8:00 AM 9/5/19 5:00 PM SAST Conference Johannesburg, South Africa ALM Corporate Counsel Forum Africa 2019
9/5/19 8:00 AM 9/5/19 5:15 PM BST Conference London, UK The Masters Conference Disclosure Is Always Changing When It Comes To Privacy, Cybersecurity, And Artificial Intelligence.
9/5/19 1:00 PM 9/5/19 2:00 PM ET Webinar   ACEDS How Automating Early Case Assessment Saves Legal Teams Time & Money
9/9/19 8:45 AM 9/13/19 12:45 PM CEST Conference Trier, Germany ERA Summer Course on European Data Protection Law
9/10/19 1:00 PM 9/10/19 2:00 PM ET Webinar   MER Smart Office 365 Strategies for Information Governance
9/10/19 2:00 PM   ET Webinar   DATAVERSITY Getting Started with Data Stewardship
9/11/19 8:30 AM 9/11/19 6:00 PM ET Conference New York, NY The Cowen Group SOLID East, New York
9/12/19 8:30 AM 9/13/19 2:30 PM CEST Conference Surrey, UK ALM Corporate Counsel Forum Europe
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