Category Archives: Law Firms

Legalweek Continues with Sessions on Workplace Data, Privacy, and Ipro’s Happy Hour

Legalweek(year) Recap with Ipro

Legalweek Continues with Sessions on Workplace Data, Privacy, and Ipro’s Happy Hour
Written by Doug Austin, Editor of eDiscovery Today

Last week, I provided a preview for the upcoming Legalweek event, which happened this Tuesday. Here are a few of the highlights from the event in terms of sessions I attended, including (of course) the Ipro happy hour!

Collaboration Data in the Wild: Streamlining Early Case Assessment and eDiscovery for Slack, Teams, and Workplace Data

This session, moderated by Brett Burney of Burney Consultants, opened with some eye-popping stats regarding the use of collaboration apps (especially since the pandemic), including:

  • Every “Internet minute”, Zoom hosts over 208,000 participants in meetings; WhatsApp users share 42 million messages and MS Teams is connecting over 52,000 users
  • Zoom users jumped from 10 million in December 2019 to 200 million in March 2020
  • Teams users grew from 13 million in July 2019 to 115 million by October 2020
  • And Slack has grown to 12.5 million daily active users as of March 2020.

The panel also discussed the Benebone v. Pet Qwerks case that I just covered on eDiscovery Today on Monday (great timing!) regarding production of Slack messages and Jeffrey McKenna, Senior eDiscovery and Privacy Attorney at Orrick indicated the details of that case were “consistent with what we’re seeing in our cases”.

Jessica Mastrogiovanni, General Counsel of Saraca Media Group discussed the in-house concern of not knowing what apps people are using to communicate and stressed an importance to include HR and IT in discussions regarding the use of collaboration apps, involving IT to ensure your company’s security is protected and involving HR to enforce policies associated with the use of collaboration apps.

It’s worth noting that Ipro conducted a webinar last November related to collaboration apps and eDiscovery/Governance titled Taming the eDiscovery and Governance Dragon: Experts Discuss Slack, Microsoft Teams and Other Collaboration Platforms that I was honored to participate in, with Charles Nguyen, Frederic Bourget, and Jim Gill. You can still catch that webinar on-demand here.

Leveraging Microsoft 365 in a Post-Schrems II World

In this session, the panel gave a brief history of the actions filed by Austrian privacy activist and lawyer, Max Schrems, which have brought down both the 15 year old Safe Harbor pact enabling transatlantic data transfers between the U.S. and European Union in 2015 (Schrems I) and its replacement, the Privacy Shield, in 2020 (Schrems II, which I covered here). Jonathan Maas also provides a history of the Privacy Shield “tug-of-war” here.

Among the considerations discussed by the panel was Microsoft’s response to the Schrems II decision, with their press release promising to “challenge every government request for public sector or enterprise customer data – from any government – where there is a lawful basis for doing so” and to “provide monetary compensation to these customers’ users if we disclose their data in response to a government request in violation of the EU’s General Data Protection Regulation (GDPR)”, which “exceeds the EDPB’s recommendations.”

Ethical Considerations in Ediscovery: Rules and Responsibilities

The panelists covered a variety of rules and responsibilities to help attorneys to not only understand eDiscovery, but also to conduct it as efficiently and effectively as possible. When it comes to competency, attorneys should be asking:

  • Does my understanding of technology and eDiscovery meet the adequate requirements?
  • Should I consult my firm’s in-house eDiscovery attorney, or should I consider hiring an expert in technology or eDiscovery?
  • Will taking courses, classes, or reading materials get me up to speed to meet my ethical requirement?
  • Should I even be taking this case based on the technological aspects involved?

The panel also discussed various rules from an ethical standpoint and discussed several cases that illustrated the expectations from courts today on eDiscovery knowledge and competence, as well as what attorneys need to know about TAR and legal holds. They even asked the question: “Is the idea of the billable hour hindering the ethical duty to charge reasonable fee? Hmmm, good question!  And Leeanne Sara Mancari, Of Counsel at DLA Piper, reiterated that the standard for when work product protection and duty to preserve is applicable is the same – the anticipation of litigation. Even better point!

Ipro Happy Hour

The day ended with the Ipro Virtual Celebration/Happy Hour, where we learned to make the “Ultraviolet” drink (1 1/2 oz. citron absolute Vodka, 1 oz. Blue Curacao, 1/2 oz. Grenadine, 1 oz lemon lime soda and garnish – lime, blackberries, or fruit of choice), discussed the recent branding and developments at Ipro (including some information about upcoming product releases in a matter of weeks), and socialized with colleagues.

According to Pierre Chamberland, Chief Innovation Officer at Ipro, the color of the new Ipro logo is “violet, not purple”, which is the first color visible to the naked eye–representing the ability to be able to see into your data as soon as possible–which reflects Ipro’s commitment to extending its capabilities far to the left side of the EDRM model.

And, Ryan Joyce, Senior Vice President at Ipro (who’s been with the company for 18 years), briefly discussed some of the upcoming features and enhancements to the Ipro suite in the areas of analytics and AI, integrations to support the EDRM life cycle from beginning to end, and revamping the handling of messaging and collaboration apps, which (ironically) is where the day started!

For more educational topics from Doug Austin related to eDiscovery, cybersecurity and data privacy, follow, eDiscovery Today! And as part of the continued educational partnership between Ipro and eDiscovery Today, he’ll be here in the Ipro Newsroom next week with more educational content!

Learn more about Ipro’s new branding and product integration.

Déjà Vu All Over Again!  It’s Almost Time for Legalweek(year)!

LegalWeek March 15, 2021

Déjà Vu All Over Again!  It’s Almost Time for Legalweek(year)!
Written by Doug Austin, Editor of eDiscovery Today

If you remember this post on the Ipro blog from December, you know that I like to reference the sayings of the great “philosopher” Yogi Berra.  Probably his most famous saying was “it’s déjà vu all over again” witnessing Mickey Mantle and Roger Maris repeatedly hitting back-to-back home runs in the Yankees’ seasons in the early 1960s (even I’m not old enough to remember that when it actually happened, but I know how to Google).

Next week, it may seem like “déjà vu all over again” when it’s time for Legalweek(year)!  “Wait”, you say, “didn’t we already just have Legalweek?”  “Yes, we did”, I say, “but we’re doing it again four more times this year”.  That’s where the “(year)” part comes in.  In lieu of the in-person conference we normally have at the end of January/beginning of February, we’re not only having that conference virtually this year in February, we’re also having four more “mini” virtual conferences – in March, April, May and July!

The March conference is a one-day event next Tuesday, March 16.  And there are several interesting sessions to check out, including a track dedicated to Litigation/eDiscovery and Data Science and an Ipro event as well!  Here are some highlights from next week’s virtual Legalweek conference (all times ET):

9:00 AM – 10:00 AM:

Keynote: The Supreme Court and Its Impact on You

As one of America’s foremost reporters on the Supreme Court, Nina Totenberg breaks down the latest Court developments into manageable pieces in order to discuss their impact on your industry. With an insider’s knowledge, she leads audiences through an animated discussion of the current issues affecting our nation today, answers questions concerning the most pressing issues in Washington, and offers predictions for what’s to come.

Keynote Speaker: Nina Totenberg, Legal Correspondent – NPR

10:00 AM – 11:00 AM:

Elevating the Leadership Paradigm in Law Firms

Some think the purpose of leadership is to deliver results through others. Others see the leader’s primary responsibility is to make the vision come to fruition. In any event, the importance of leadership cannot be underestimated.

Join us at Legalweek(year) for a special Law.com Pro discussion on law firm leadership, focusing on the leadership structure and training firms should have in place to better align law firms with leadership practices exhibited in the business world.

Some of the topics they plan to discuss include:

  • What leadership traits are needed in the current environment and looking forward?
  • How can firms better cultivate and prepare leaders to succeed?
  • Where should leaders be hired from?
  • What lessons can we learn from other industries..and from our clients.

11:00 AM – 12:00 PM:

How Litigation Departments Can Minimize Cost, Reduce Risk and Get to Responsive Information Faster

Managing the litigation and regulatory requests that the large corporations face is not an easy task, but the experts in Microsoft and Chevron legal departments are up to the task! Join us to learn how Microsoft and Chevron approach their eDiscovery obligations utilizing Advanced eDiscovery in Microsoft 365 including some tips and tricks they have learned along the way.

12:45 PM – 1:45 PM:

Leveraging Microsoft 365 in a Post-Schrems II World

The Schrems II decision to invalidate the EU-US Privacy Shield has had far-reaching ramifications for cross-border data transfers and cloud computing, including Microsoft 365 (M365). In this panel discussion, industry experts will review the high-impact challenges when it comes to M365 specifically and outline a way forward for attendees.

3:00 PM – 4:00 PM:

Ethical Considerations in eDiscovery: Rules and Responsibilities

The world of eDiscovery is not stagnant; it’s continuously evolving due to the constant influx of innovation and the changes to ethical obligations that arise as a result. To best serve their clients, legal professionals need to stay up-to-date on the latest changes to ethical rules in the world of eDiscovery.

In this session, experts will go over these ethical obligations, court cases where attorneys didn’t meet their obligations, and the impact it had on the cases and/or attorneys directly. More specifically, you’ll learn about:

  • Being competent in eDiscovery and technology based on the model rules.
  • Reducing fees by leveraging technology when possible.
  • Preserving ESI and Metadata.
  • Protecting confidentiality and issues surrounding the inadvertent production of privileged information.

4:00 – 4:45 PM:

Ipro will be conducting a Virtual Celebration/Happy Hour starting at 4pm.  If you remember Ipro Happy Hours over the years at Faces and Names in Manhattan, you can expect a terrific virtual event with drink recipes from Geoff Schmidt, Mixologist and Host and it will be an opportunity for Ipro to announce its rebranding initiative and new product features as well.  You’ll hear from:

So, it will be a fun event and you can learn some exciting information as well!  Here’s the link to check out upcoming Ipro Legalweek(year) events!

You can register for LIVE Only Access events for FREE.  If you want on-demand content and CLE credit, it’s only $399 for the entire series of this event and the others too!  That’s five days over four events for one low price!  Here’s the link to register.  And guess what?  If you registered already for the last one, you’re already set!

Look for me at the Ipro happy hour – those are always “déjà vu all over again” events for me!

For more educational topics from Doug Austin related to eDiscovery, cybersecurity and data privacy, follow, eDiscovery Today! And as part of the continued educational partnership between Ipro and eDiscovery Today, he’ll be here in the Ipro Newsroom next week with more educational content!

Putting the “Govern” Into Information Governance

Government building columns with a lock in front of it

Putting the “Govern” Into Information Governance
Written by Doug Austin, Editor of eDiscovery Today

Last year, I published a six-part series associated with EDRM’s Information Governance Reference Model (IGRM) on the Ipro blog. I discussed the five stakeholder groups as a whole here, plus I discussed each of the stakeholder groups (Legal, Records & Information Management (RIM), Information Technology (IT), Privacy/Security and Business Stakeholders) individually.  See what I did there?  I just gave you six more posts to check out for additional information!  You’re welcome!

Seriously, though, each group has different goals and considerations for information within the IGRM model that differ from each of the other groups.  When we talk about organizations that need to consider information governance and how their InfoGov program works, we’re often talking about corporations.  But there’s an entirely different type of organization that also has InfoGov (and eDiscovery) needs – government agencies.  They typically have the same stakeholder groups and many of the same challenges that corporations do, and some additional challenges as well.

The types of government agencies that are out there are practically as diverse as the types of corporations – they range from Federal government agencies like the Department of Justice (DOJ), Federal Trade Commission (FTC) and Securities and Exchange Commission (SEC) to State and Province agencies (i.e., including the US and Canada) to City and County agencies.  And that doesn’t even include Education related agencies like colleges and universities.  It’s pretty typical to think of the needs of government agencies along the lines of Federal agencies, but there are a large number of other government agencies that also have potential InfoGov and eDiscovery needs.

Many government agencies have historically used software to support InfoGov and eDiscovery functions that has been “on-prem” (i.e., contained within the government agency firewall) for security reasons.  However, the use of cloud-based platforms is rising, as Jim Gill just noted in this Ipro blog post here, even for government agencies (in certain cases, at least).

Federal Government Agencies

There are at least two unique considerations that have made unique InfoGov and eDiscovery challenges for Federal government agencies: FOIA and FedRAMP:

FOIA: The Freedom of Information Act (FOIA) is a federal freedom of information law that requires the full or partial disclosure of previously unreleased information and documents controlled by the United States government upon request. The act defines agency records subject to disclosure, outlines mandatory disclosure procedures, and defines nine exemptions to the statute.  FOIA was moved from its original home in Section 3 of the Administrative Procedure Act (APA). Section 3 of the APA, as enacted in 1946, gave agencies broad discretion concerning the publication of governmental records. Following concerns that the provision had become more of a withholding than a disclosure mechanism, Congress amended the section in 1966 as a standalone act to implement “a general philosophy of full agency disclosure.”

Needless to say, FOIA requests are a huge burden for Federal agencies.  The Associated Press reported three years ago that government agencies “turned over everything requested in roughly one of every five FOIA requests” which amounts to receiving either censored files or nothing in 78 percent of 823,222 requests back then (a record over the previous decade).  So, FOIA requests are a BIG challenge for Federal government agencies, one with which they have not coped well recently.

FedRAMP: The Federal Risk and Authorization Management Program (FedRAMP) is a government-wide program that provides a standardized approach to security assessment, authorization, and continuous monitoring for cloud products and services. FedRAMP empowers agencies to use modern cloud technologies, with emphasis on security and protection of federal information, and helps accelerate the adoption of secure, cloud solutions.  So, for government agencies considering cloud-based solutions for InfoGov and eDiscovery, that means they can consider use of those solutions – assuming they are FedRAMP authorized.  FedRAMP authorization typically takes time – at least 213 days from the start of the approval process to FedRAMP approval.

Other Governmental Agencies

State (and province), county, city and other types of governmental agencies don’t have FOIA and FedRAMP to deal with, but they do have other considerations that can be equally challenging.  Many state and local jurisdictions may be involved in multi-state or multi-district litigation cases (MSLs or MDLs) against corporations over health issues related to substances such as tobacco (in years past) or opioids (today) which can be a lot of work that may or may not pay off.  And there are numerous cases at the state and local level that these agencies may need to be prepared to address.  Want a recent example?  Take a look at all of the litigation already arising from the power grid failure in Texas just two weeks ago (don’t get me started).  For these government entities, InfoGov needs and eDiscovery requirements are comparable to any organization, but budgets are tight and cost predictability is paramount.

So, when we think of organizations with InfoGov and eDiscovery needs, don’t forget the government agencies – they literally put the “Govern” into Information Governance!

Speaking of government agencies, Ipro is currently conducting a Government survey to provide useful information on current InfoGov and eDiscovery challenges for government agencies.  If you work for a government agency and are involved in InfoGov or eDiscovery activities, please take the survey here – it’s a simple 10 question, multiple choice survey that literally takes a couple of minutes.  When the results are complete, Ipro will compile them into shareable infographics and videos to give government agencies a benchmark for assessing their current legal processes.  Don’t miss this chance to share your knowledge and help your peers!

For more educational topics from Doug Austin related to eDiscovery, cybersecurity and data privacy, follow, eDiscovery Today! And as part of the continued educational partnership between Ipro and eDiscovery Today, he’ll be here in the Ipro Newsroom next week with more educational content!

Still Debating on Moving eDiscovery to the Cloud?

Individuals debating about cloud eDiscovery

Still Debating on Moving eDiscovery to the Cloud? Your Data is Already There Waiting For You
By Jim Gill, Guest Blogger

I recently moderated a webinar sponsored by ACEDS and Ipro where we unpacked the 2021 Snapshot Law Firm Survey. One statistic showed where firms are putting their priorities when it comes to updating technology, and only 7% of respondents said they were focused on moving their eDiscovery software from an on-prem deployment to a cloud-based deployment.

A few years ago, one might read this figure as showing resistance in the legal world to move data to the cloud. There was a great concern then about security when it came to clients’ data (there still is), and keeping that data behind a firewall gave firms the peace of mind that the data was safe. I’m sure there are still some firms that keep data on-prem. But times have changed.

The low number of respondents focused on a move to the cloud is more indicative of the fact that most have already done so. The fears about cloud security have passed for legal (and even some government agencies, who were notorious for hanging onto old-fashioned computer technology, because it was almost impossible to hack — see my previous Ipro article on the subject).

Many law firms started making the move to cloud-based eDiscovery, because the burden of maintaining on-prem systems is heavy: conducting all upgrades to both software and hardware, maintaining an IT team that understands both data security and the needs of the litigation department, scaling in the face of ever-growing datasets, trying to recover costs, and shouldering the liability of hacks and data breaches. Operating from the cloud just makes sense.

But if those arguments weren’t enough, two other factors should finalize the pro-cloud argument.

The first is the fact that most, if not all, organizations at this point are already using enterprise data from multiple sources in the cloud every day, which is what today’s eDiscovery Blues cartoon touches on. As a law firm, you may have your eDiscovery software on-prem, but all of the firm’s data — email, collaboration tools, video chat, etc. — are in the cloud. What’s more, so is your clients’ data. With new tools allowing law firms to connect directly to a client’s data for smarter collections, this could be a real opportunity to not only reduce review costs, but lower the risk that comes from making copies and handing off that data across multiple stakeholders. Operating from the cloud allows legal teams more direct access to the data.

The second factor is revealed by the global pandemic, which has been going on for a year now. Before 2020, law firms were pretty entrenched in the notion that remote operations weren’t feasible. Then COVID-19 hit, and within weeks, most people had made the transition to working from home, including attorneys and paralegals. Many eDiscovery professionals I have spoken to over the past year said they were busier than ever while working from home. And the thing that made this agile response possible was the cloud. Data could be accessed from anywhere. Communications were more seamless than ever, regardless of location. And continuing forward, most people are expecting at least some operations to remain remote, even after the pandemic recedes.

So if you’re still a law firm holding on to your on-prem eDiscovery platform, I’m sure there are good reasons. Then again, with all of the challenges that come with managing things that way, you may want to consider joining that 7% who are prioritizing a move to the cloud in 2021.

Coming Full Circle with the 2021 ABA TECHSHOW

ABA Techshow

Coming Full Circle with the 2021 ABA TECHSHOW
Written by Doug Austin, Editor of eDiscovery Today

As we get closer to one full year since the pandemic changed our way of life, it’s worth noting that the last in-person conference that many of you may have attended was last year’s ABA TECHSHOW, which was conducted February 26-29 at the Hyatt Regency Chicago (yes, 2020 was SO challenging, we had to endure 366 days last year).  This year’s ABA TECHSHOW (like many other conferences) will be virtual, but still a very exciting event, as it always is!

This year, the ABA TECHSHOW will be conducted from March 8th through March 12th.  It begins with the Start-Up Pitch Competition at 11am ET on Monday, March 8th, where “ABA TECHSHOW will host a startup competition showcasing 15 innovative legal startups that will face off in a pitch competition – judged by TECHSHOW attendees – to pick the most innovative startup for the year”.  It concludes with the 60 in 60 session on Friday, March 12th at 3:45pm, which provides “an hour of the latest in apps, work hacks, hot technologies, and more”.  And there are plenty of interesting other sessions in between – there’s literally a full week of legal technology education!  Here are some of the highlights (all times ET):

  • Monday: Ethical AI: Playbook for a Rapidly Changing World (2:15pm), Data Security and Privacy for Lawyers (4:30pm);
  • Tuesday: Lawyer’s Guide to Zoom (11:15am), The Amazing Depth of Cyber Investigations (1:00pm), How Attorneys Get Hacked (and What You Can Do About It) (2:45pm);
  • Wednesday: Best Practices for Securing Your Virtual Practice (11:15am), Is Legal Innovation an Oxymoron? (1:45pm);
  • Thursday: Outsourcing as an Efficiency Tool (3:45pm), Mixing People and Automation: Finding the Sweet Spot (also at 3:45pm);
  • Friday: The Future of AI, Mindmapping, and Online Dispute Resolution (11:15am), Cloud Based E-Discovery for Small Firms (12:00 pm), Artificial Intelligence and Analytics in Litigation and Beyond (2:15pm, with Maura Grossman!).

The schedule of sessions is available here organized by day and available here in a PDF file organized by day and topic.

As for CLE credit, the ABA will seek 15 hours of CLE credit in 60-minute states, and 18 hours of CLE credit for this program in 50-minute states including 3 hours of CLE ethics credit in 60-minute states and 3.6 hours of CLE ethics credit in 50-minute states. Credit hours are estimated and are subject to each state’s approval and credit rounding rules.  And, even though all sessions will be recorded and made available to view for at least 30 days post-show, only live attendance at sessions will give you CLE credit.

The Full Conference rates for all five days of the conference are $295 for an ABA or LP member, $350 for a Non-Member (Government/Professional Affiliates/Standard).  So, that’s no more than $350 for an entire week of great educational topics!  The cost is only $25(!) for a Law Student (provided they’re an ABA member, which is free).  Single-day passes for all attendees are $175, so, unless only one day of sessions interests you, it’s a significantly better value to register for the entire conference.  Note: prices for all will go up after 3/5, so you’ll want to lock in before that for the best rates.  Here’s the page with complete pricing info and to register for the event.

And there will still be a TECHSHOW EXPO this year!  There are a number of sponsors who will be participating this year, including Ipro.  You can request a meeting with Ipro at the ABA TECHSHOW here – it’s a great opportunity to learn about exciting development with the Ipro product suite!

ABA TECHSHOW is always one of the most unique conferences of the year – it’s probably the conference that has the widest appeal and participation across the spectrum of law firm and legal professionals, from solo and small firms to Am Law 100 firms, large corporations and government entities.  It’s truly a conference for everybody in legal technology!  Hope to see you there!

For more educational topics from Doug Austin related to eDiscovery, cybersecurity and data privacy, follow, eDiscovery Today! And as part of the continued educational partnership between Ipro and eDiscovery Today, he’ll be here in the Ipro Newsroom next week with more educational content!

The Sedona Conference Commentary on Ephemeral Messaging

Gavel in a Maze

The Sedona Conference Commentary on Ephemeral Messaging
Written by Doug Austin, Editor of eDiscovery Today

In last week’s post, I discussed the challenges associated with ephemeral messaging, including a case where the use of an ephemeral messaging app at the wrong time contributed to the issuance of terminating sanctions against the defendant in a case and identified a couple of recommendations to consider with regard to ephemeral messaging.  In the conclusion of my two-part series on ephemeral messaging, I’ll discuss a recently released Commentary on the topic from The Sedona Conference®.

A couple of weeks ago, The Sedona Conference and its Working Group 6 on International Electronic Information Management, Discovery, and Disclosure (WG6) announced that The Sedona Conference Commentary on Ephemeral Messaging (“Commentary”) has been published for public comment.

The 32-page PDF Commentary defines the nature and scope of ephemeral messaging and provides a detailed sketch of the tension and competing demands facing organizations – particularly organizations seeking to use ephemeral messaging to comply with cross-border data protection directives without violating other legal requirements – that wish to use these tools. The Commentary also includes a discussion of five guidelines that provide direction to organizations on how to navigate the landscape of uncertainty surrounding the use of ephemeral messaging. The guidelines also offer recommendations to regulators and judges for evaluating good faith uses of corporate ephemeral messaging.  Those Guidelines are:

  • Guideline One: Regulators and Courts Should Recognize that Ephemeral Messaging May Advance Key Business Objectives
  • Guideline Two: Organizations Should Take Affirmative Steps to Manage Ephemeral Messaging Risks
  • Guideline Three: Organizations Should Make Informed Choices and Develop Comprehensive Use Policies for Ephemeral Messaging Applications
  • Guideline Four: Regulators, Courts, and Organizations Should Consider Practical Approaches, Including Comity and Interest Balancing, to Resolve Cross-Jurisdictional Conflicts over Ephemeral Messaging
  • Guideline Five: Reasonableness and Proportionality Should Govern Discovery Obligations Relating to Ephemeral Messaging Data in U.S. Litigation

You can download a copy of the Commentary for FREE here (registration required). It is open for public comment through March 28th. Questions and comments may be sent to comments@sedonaconference.org.  A webinar on the Commentary will also be held in early March and will be announced on The Sedona Conference website to give people a chance to learn more about it and ask questions.

This is the first comprehensive guide like this I’ve seen on ephemeral messaging and it’s well worth the read (at just 32 pages, it’s a lot shorter than a case law ruling I just covered!).  The Commentary provides useful information regardless of your role within the litigation lifecycle (in-house, outside counsel, judges, providers, etc.) to understand ephemeral messaging and how to address it as an organization pre-litigation, as well as what to do when you’re under a duty to preserve and contains references to numerous other resources, including case law, articles and other guides).  Kudos to The Sedona Conference and Working Group 6 for publishing such a useful and timely guide!

Just a reminder that Ipro and ACEDS will be conducting the webinar titled Unpacking the Ipro and ACEDS 2021 Law Firm Snapshot Survey on Tuesday, February 23rd at 1pm ET to review the results.  Mike Quartararo, President of ACEDS, Aaron Swenson, Director of Product at Ipro, and Jim Gill, LegalTech Industry Writer, will discuss the survey results and what they reveal about the state of the industry in 2021.  Even if you didn’t participate in the survey (if not, why not?, unless you don’t work for a law firm, of course), you’ll want to check out the survey results.

For more educational topics from Doug Austin related to eDiscovery, cybersecurity and data privacy, follow, eDiscovery Today! And as part of the continued educational partnership between Ipro and eDiscovery Today, he’ll be here in the Ipro Newsroom next week with more educational content!

Now You See the Evidence, Now You Don’t

Figure Disappearing

Now You See the Evidence, Now You Don’t
Written by Doug Austin, Editor of eDiscovery Today

When it comes to eDiscovery, lawyers have plenty of challenges to deal with – including challenges to address even before the case is filed.  Add “disappearing evidence”(!) to that list of challenges.

If you read this blog regularly, you know that collaboration apps have become a popular source of ESI in many eDiscovery cases.  I wrote about it here, Jim Gill wrote about it here and Ipro even conducted a webinar about it back in November (you can still watch it on-demand here). The popularity of apps like Slack and Teams for communication within organizations and extending to partners and clients have added another source of potentially responsive ESI to preserve and collect.  But not all collaboration apps are created the same.  Some are ephemeral messaging apps, which only preserve the communication for a short while after it has been sent and read, then automatically deletes that message.  Snapchat is certainly one of the most popular apps that fits that description; Confide, Wickr, and Threema are other examples.  With ephemeral messaging apps like these, the message disappears anywhere from a few minutes to a few days.  Now you see it, now you don’t!

As you can imagine, evidence that automatically disappears when you have a duty to preserve can be very problematic. One recent case (which was part of the “Five Must-Read eDiscovery Cases from 2020” that I wrote about on this blog here) was WeRide Corp. v. Huang et al. where terminating sanctions were issued against most of the defendants in the case.  One of the reasons was that the defendant’s CEO requested that the employees begin to use an ephemeral messaging app (DingTalk) after the preliminary injunction was issued. Needless to say, that action (along with other spoliating activities) met the standard of “intent to deprive” in the eyes of the court in this case necessary for severe sanctions.

With that in mind, here are a couple of recommendations with regard to ephemeral messaging to consider:

  1. If You Insist on Using Ephemeral Messaging Apps, Have a Plan for Litigation: There’s no issue to communicating using ephemeral messaging if you don’t have one or more active cases with a duty to preserve. However, once that duty exists, continuing to use such an app to communicate could be a sanctionable act if those messages could be discoverable in litigation.  If your organization insists on using an ephemeral messaging app, you need to have a backup collaboration app to switch to using during litigation.  But why would you want to force your employees to learn to use two apps if you don’t have to do so?  The better approach is to not use them at all, then you don’t have to switch apps if you’re under a duty to preserve.
  2. Remember That Any Communication App Can Be Set as Ephemeral: Just because a collaboration app isn’t ephemeral doesn’t mean that it can’t be set to automatically delete messages after a period of time. Any communication app can be set to delete messages after a period of time, including Slack or Teams and text messaging apps like iMessage.  Many organizations suspend auto-delete policies for emails during a litigation hold, but some of them fail to extend that to other forms of communication.  So, it’s important to suspend automatic deletion for collaboration and text apps as well, either via your IT department (if it has that control) or via communication to custodians with clear instructions to suspend automatic deletion in apps where they have control (such as BYOD devices).

Next week, I’ll talk about a terrific new resource with discussion of the issues associated with ephemeral messaging apps and what to do about them!

Just a reminder that Ipro has partnered with the Association of Certified eDiscovery Specialists (ACEDS) to conduct a Law Firm Snapshot Survey to create an industry benchmark going into the new year.  The survey is a twelve-question survey covering various topics and literally takes a minute to complete and you can even fill it out anonymously. Here’s the link to the survey it’s in its final days, so please check it out!

Ipro and ACEDS will be conducting the webinar titled Unpacking the Ipro and ACEDS 2021 Law Firm Snapshot Survey on Tuesday, February 23rd at 1pm ET to review the results.  Mike Quartararo, President of ACEDS, Aaron Swenson, Director of Product at Ipro, and Jim Gill, LegalTech Industry Writer, will discuss the survey results and what they reveal about the state of the industry in 2021.  Even if you’re not participating in the survey (if not, why not?, unless you don’t work for a law firm, of course), you’ll want to check out the survey results.

For more educational topics from Doug Austin related to eDiscovery, cybersecurity and data privacy, follow, eDiscovery Today! And as part of the continued educational partnership between Ipro and eDiscovery Today, he’ll be here in the Ipro Newsroom next week with more educational content!

Start Planning for Data Minimization Under the CPRA

CPRA

There’s No Time Like the Present to Start Planning for Data Minimization Under the CPRA
Jim Gill, Guest Blogger

Just when we were getting used to the idea of the California Consumer Privacy Act (CCPA), a new law was passed in November 2020, which will supercede it. Fortunately, there is time to prepare since the California Privacy Rights Act (CPRA) won’t be fully operative until January 1st, 2023. CCPA, CPRA, what’s the difference?

One of the tenets of Europe’s General Data Protection Regulation (GDPR) is a data minimization clause stating that personal data collected, stored, and used by companies must be limited to only that which is relevant, adequate, and absolutely necessary. The CCPA did not have a data minimization clause, but the new CPRA does. So what does this mean?

As the eDiscovery Blues cartoon which accompanies this blog points out, it isn’t exactly cut and dry. The exact language of the CPRA states a business “shall not retain a consumer’s personal information or sensitive personal information . . . for longer than is reasonably necessary.” In the same way that “reasonableness” under the Federal Rules of Civil Procedure (FRCP) rule 37(e) is interpreted by the courts, I can foresee the same happening for the CPRA. So until that takes place, what can organizations do to prepare their IT, Legal, and Compliance departments for the inevitability of data minimization?

First, if your company doesn’t have a data map already, now is the time to begin. For a great review of things to consider in that process, read Doug Austin’s article The 5 W’s of Organizational Data Maps which leaves readers with these 5 questions organizations should keep in mind when it comes to their data:

  • What data is being stored?
  • Where is it being kept?
  • When do we need to keep/destroy it?
  • Who is responsible for the data?
  • Why are we keeping/tracking it?

After you have all of your data mapped, a next step would be to establish a records retention program in order to ensure compliance and protect electronic business records from unauthorized exposure, alteration, or destruction.

To help reduce risks and increase adherence to legal and regulatory guidelines, companies should adopt the 3Es of electronic record management:

  • Establish effective policies and procedures governing Nonpublic Personal Information (NPI), Personally Identifiable Information (PII), and other business records.
  • Educate employees about record risks, organizational rules, and individual responsibilities.
  • Enforce policies through a combination of disciplinary action, training, and best-in-class technology solutions designed to manage content, use, and records.

Yes, it may seem like a long time before the CPRA becomes active, or you may not fall under its jurisdiction (though the chances of your company doing business with a citizen of California is not a longshot), but good information governance and data retention policies and programs take time to put together. They also require the right technology to enable the successful execution of these programs. So an early start, in this case, might mean you are compliant just in the nick of time.

Attention Law Firm Readers! Ipro and ACEDS Needs Your Input

Law Firm Snapshot Survey 2021

Attention Law Firm Readers! Ipro and ACEDS Needs Your Input
Written by Doug Austin, Editor of eDiscovery Today

I’m surely dating myself with this reference, but, in the 1986 movie Short Circuit, with Steve Guttenberg and Ally Sheedy (when is the last time you saw either of them starring in a movie?), the robot “Number 5” kept repeating the phrase “Need input” as its way of saying it needed information to decide what to do next.  Now, that’s artificial intelligence!

But, if you’re a reader of this blog and work for a law firm handling litigation and discovery, here’s a chance to help develop some real intelligence that can certainly enable you to understand how other law firms are addressing today’s discovery needs.  To better understand the challenges law firms are facing and how they are planning to meet them, Ipro has partnered with the Association of Certified eDiscovery Specialists (ACEDS) to conduct a Law Firm Snapshot Survey to create an industry benchmark going into the new year.

The survey is a twelve-question survey covering various topics such as whether your litigation work will increase this year, how you expect your current eDiscovery process to change, how far down the EDRM lifecycle do clients go before engaging your firm, how often your firm uses Continuous Active Learning (CAL) for review, the re-use of AI predictions on future cases, whether you perform redactions manually or using auto-redact tools, how you deal with collaboration tool data, and so forth.  In other words, how well is your law firm and others innovating (there’s that word again) to address the challenges of discovery today?  The survey literally takes a minute to complete and you can even fill it out anonymously.  Here’s the link to the survey, please check it out!

Ipro and ACEDS will be conducting the webinar titled Unpacking the Ipro and ACEDS 2021 Law Firm Snapshot Survey on Tuesday, February 23rd at 1pm ET to review the results.  Mike Quartararo, President of ACEDS, Aaron Swenson, Director of Product at Ipro, and Jim Gill, LegalTech Industry Writer, will discuss the survey results and what they reveal about the state of the industry in 2021.  Even if you’re not participating in the survey (if not, why not? unless you don’t work for a law firm, of course), you’ll want to check out the survey results.

Speaking of events (and innovating), one last reminder that Ipro is a sponsor and participant of the SOLID Winter 2021 event this week on January 28 and 29, which is an event where speakers give TED-STYLE talks around the intersection of innovation, advanced technology and the business of law.  They share what they are doing, how they are doing it, and the business impact it has. You can register for it here on the Ipro events page.

So, that gives you two terrific events coming up to learn about trends and innovation!  Anything else happening out there in the legal technology and eDiscovery world?  Well, it just so happens that next week is Legalweek!  Because of the pandemic of course, this year’s event is virtual and is not just one event next week, but five total virtual events between now and July!  It’s Legalweek(year) this year.  The good news is that because the event is virtual this year, you can attend virtual live events for FREE!  Here’s the link to the virtual agendas for next week’s sessions and the link to register to attend.

Needless to say, there are plenty of opportunities to learn about trends, best practices and innovating to succeed in the next few weeks.  More opportunities for input than even “Number 5” can handle!

For more educational topics from Doug Austin related to eDiscovery, cybersecurity and data privacy, follow, eDiscovery Today! And as part of the continued educational partnership between Ipro and eDiscovery Today, he’ll be here in the Ipro Newsroom next week with more educational content!

This Blog Post Means Business

Gavel Above COVID-19 Documents

This Blog Post Means Business
Written by Doug Austin, Editor of eDiscovery Today

Last week, eDiscovery Today launched the first ever State of the Industry Report (sponsored by EDRM).  The report discusses key trends including remote work during the pandemic, usefulness of virtual conferences, pandemic effect on litigation workloads, use of predictive coding technology, discovery of data from mobile devices and collaboration apps, eDiscovery business trends in 2021, biggest overall eDiscovery trends in 2021 and the eDiscovery challenges not being discussed enough.  It includes survey results regarding key trends of 183 legal industry professionals (with breakouts by law firm, service/software provider and consultancy respondents) and observations from 20 industry thought leaders regarding these trends.

As noted above, one of the trends discussed was eDiscovery business trends and survey respondents were asked this question:

What do you think will be the biggest business-related trend in eDiscovery in 2021?

Almost a third of respondents (31.7%) identified consolidation of eDiscovery providers through investment or attrition as the biggest business-related trend in 2021. Along with 18.0% that identified expanded investment in eDiscovery providers, essentially half of respondents (49.7%) indicated that they expect factors that will impact eDiscovery providers. Another 45.9% of respondents expected continued restructuring of companies to address eDiscovery work post-pandemic (26.8%) or reduced budgets for eDiscovery spend (19.1%). Only 4.4% of respondents identified expanded ownership of law firms by non-lawyer entities.  Perhaps many of them were from this state?

Regardless, these survey results do appear to point out two clear trends:

The eDiscovery Provider Landscape is Continuing to Evolve

As noted here in Rob Robinson’s excellent Complex Discovery blog, while merger, acquisition and investment activity for eDiscovery providers paused when the pandemic hit with only 4 total transactions in Q2 (3 of those in June), we saw at least 22 total transactions in Q3 and Q4, including Ipro’s acquisition of NetGovern.  Clearly, even the pandemic can’t keep the business of eDiscovery down for long and capital investors are continuing to look at the eDiscovery industry as an attractive investment, even in these challenging times we’re currently facing.

There’s More Pressure to Do More with Less Than Ever

Every quarter, Complex Discovery conducts an eDiscovery Business Confidence survey to provide insight into the business confidence level of individuals working in the eDiscovery ecosystem. Since the pandemic began, Complex Discovery has conducted three quarterly surveys – in April, July and October of last year. The average percentage of respondents over those surveys that selected Budgetary Constraints as the factor with the most impact was 52.2%, which is 28.4% higher than the lifetime average before the pandemic of 23.8%.  Clearly, budgets are impacting eDiscovery business more than ever before.

At the same time, as discussed in the State of the Industry report noted above, nearly half of all respondents (44.8%) are already seeing a greater litigation workload since the pandemic began, with another 35.5% expecting a greater litigation workload to come. That means four out of five respondents (80.3%) has seen or expects to see more work resulting from the pandemic and the associated economic crisis.

Combined, the factors of tighter budgetary constraints and more litigation are undoubtedly putting the squeeze on organizations to do more with less in eDiscovery.

So, What Does That Mean for You?

Tying back to last week’s post (I love it when a plan comes together!), these factors illustrate why now is the time to embrace innovation and leverage eDiscovery technology and best practices to do more with less.  Old workflows and manual processes are no longer viable in today’s challenging pandemic-influenced world.

As noted last week, Ipro is a sponsor and participant of the SOLID Winter 2021 event on January 28 and 29, which is an event where speakers give TED-STYLE talks around the intersection of innovation, advanced technology and the business of law.  They share what they are doing, how they are doing it, and the business impact it has. You can register for it here on the Ipro events page.

And, if you would like a full copy of the 2021 State of the Industry Report from eDiscovery Today, it’s FREE!  Simply go to the eDiscovery Today website and enter your email address in the right sidebar to become an email follower and receive the report as well as emails with links to new posts.

For more educational topics from Doug Austin related to eDiscovery, cybersecurity and data privacy, follow, eDiscovery Today! And as part of the continued educational partnership between Ipro and eDiscovery Today, he’ll be here in the Ipro Newsroom next week with more educational content!