The NorCal eDiscovery & Information Governance Retreat is part of the series of retreats held by Chris La Cour’s company, Ing3nious.  This one was held at the Meritage Resort & Spa in Napa, California.  As always, the venue was beautiful, the food was good, and the talks were informative.  You can find all of my photos from the retreat and the nearby Skyline Wilderness Park here.  My notes below offer a few highlights from the sessions I attended.  There were often two sessions occurring simultaneously, so I couldn’t attend everything.

Keynote: Only the Paranoid Survive: What eDiscovery Needs to Survive the Big Data Tsunami

The keynote was by Alex Ponce de Leon from Google.  He made the point that there is a    difference between Big Data, which can be analyzed, and “lots and lots of data.”  For information governance, lots of data is a problem.  The excitement over Big Data (he showed this graph and this one) is turning people into digital hoarders–they are saving things that will never be useful, which causes problems for ediscovery.  He mentioned that DuPont analyzed the documents they had to review for a case and found that 50% of them should have been discarded according to their retention policy, resulting in $12 million in document review that wouldn’t have been necessary if the retention policy had been followed (this article discusses it).  Legal and ediscovery people need to take the lead in getting companies to not keep everything.

Establishing In-House eDiscovery Playbooks, Procedures, Tool Selection, and Implementation

There was some discussion about corporations acquiring e-discovery tools and whether that caused concerns from outside counsel about what was being done since they must sign off on it.  Ben Robbins of LinkedIn said they haven’t had significant problems with that.  The panel emphasized the importance of documenting procedures and making sure that different types of matters were addressed individually.

Cybersecurity…it’s what’s for dinner. So, what’s the recipe and who’s the head chef?

I couldn’t attend this one.

A Look Back on Model eDiscovery Orders

Judge Rader’s e-discovery model order (here is a related article), which limits discovery to five custodians and five search terms per custodian, was discussed.  It was motivated by a need to curtail patent trolls in the Eastern District of Texas who were using ediscovery costs as a weapon.  It was mentioned that discovery of backups may become more feasible as people move away from using tape for backups.  Producing reports rather than raw databases was discussed, with the point being made that standard reports are usually okay, but custom reports often don’t match the requesting party’s expectations and cause conflicts.  Model orders go out the window when dealing with government agencies–many want everything.

Information Governance and Security: Keeping Security in Sight

I couldn’t attend this one.

How to Leverage Information Governance for Better eDiscovery

I couldn’t attend this one.

Avoiding Land Mines in TAR

I was on this panel, so I didn’t take notes.

Managing BYOC/D and Wearables in International eDiscovery and Investigations

I couldn’t attend this one.

Social Media – eDiscovery’s “friend”?

An employee may see a social media account as personal, but it must be preserved (possibly for years).  Need to remind the employee of the hold.  Don’t friend represented opposition, but okay to friend witnesses if you are up front about why.  Lawyers can friend judges, but not if they have a case before them.  You should read your judge’s tweets to see if there is a sign of bias.  Getting data from a social media company is difficult.  Look to see if jurors are tweeting about the case.

Inside the Threat Matrix: Cyber Security Risks, Incident Response, and the Discovery Impact

I couldn’t attend this one.

Resolving the Transparency Paradox

TAR 1.0 has a lot of foreign concepts like “stabilization” (optimal training), whereas TAR 2.0 (continuous active learning) is more like traditional review.  Hal Marcus of Recommind mentioned that when he surveyed the audience at another event, many said they had used predictive coding but few disclosed doing so.  The panel discussed allowing the requesting party to provide a seed set to make them feel better about using TAR, or raising the possibility of using TAR early on to see if there is pushback.  The Coalition of Technology Resources for Lawyers has a database of case law on predictive coding that was mentioned.

Judicial Panel

Judges now get ediscovery.  They see a lack of communication.  Responding parties object to everything.  Judges are unlikely to interfere when the parties have a thought-out ediscovery plan.  Inside counsel are taking more control to reduce costs.  The RAND study “Where the Money Goes” was mentioned.  Regarding cost shifting, an attorney may choose to pay to have more control.