Highlights from the ACEDS 2016 E-Discovery Conference

The conference was held at the Grand Hyatt in New York City this year.  There were two full days of talks, often with several simultaneous sessions.  My notes below provide only a few highlights from the subset of the sessions that I was able to attend.aceds2016_panel

Future Forward Stewardship of Privacy and Security
David Shonka, Acting General Counsel for the FTC discussed several privacy concerns, such as being photographed in public and having that photo end up online.  Court proceedings are made public–should you have to give up your privacy to prosecute a claim or defend against a frivolous claim?  BYOD and working from home on a personal computer present problems for possession, custody, and control of company data.  If there is a lawsuit, what if the person won’t hand over the device/computer?  What about the privacy rights of other people having data on that computer?  Data brokers have 3,000 data points on each household.  Privacy laws are very different in Europe.  Info governance is necessary for security–you must know what you have in order to protect it.

The Art & Science of Computer Forensics: Why Hillary Clinton’s Email & Tom Brady’s Cell Phone Matter
Email headers can be faked–who really sent/received the email?  Cracking an iPhone may fail Daubert depending on how it is done.  SQLite files created by apps may contain deleted info.  IT is not forensics, though some very large companies do have specialists on staff.  When trying to get accepted by the court as an expert, do they help explain reliable principles and methods?  If they made their own software, that could hurt.  They need to be understandable to other experts.  Certifications and relevant training and experience are helpful.  Have they testified before (state, federal)?  Could be bad if they’ve testified for the same client before–seen as biased.  Reports should avoid facts that don’t contribute to the conclusion.  Include screenshots and write clearly.  With BYOD, what happens when the employee leaves and wipes the phone?  Companies might consider limiting website access (no gmail).

The Secrets No One Tells You: Taking Control of Your Time, Projects, Meetings, and Other Workplace Time-Stealers
I couldn’t attend this one.

Ethics Rules for the Tech Attorney
I couldn’t attend this one.

Hiring & Retaining E-Discovery Leaders
I couldn’t attend this one.

Piecing the Puzzle Together: Understanding How Associations can Enhance Your Career
I couldn’t attend this one.

Tracking Terrorism in the Digital Age & Its Lessons for EDiscovery – A Technical Approach
I couldn’t attend this one.

E-Discovery Project Management: Ask Forgiveness, Not Permission
I couldn’t attend this one.

The Limits of Proportionality
I couldn’t attend this one.

What Your Data Governance Team Can Do For You
I couldn’t attend this one.

Financial Industry Roundtable
I couldn’t attend this one.

Using Analytics & Visualizations to Gain Better Insight into Your Data
I couldn’t attend this one.aceds2016_lunch

Defending and Defeating TAR
Rules of Professional Conduct 5.3 says a lawyer must supervise non-lawyers.  Judge doesn’t want to get involved in arguments over e-discovery–work it out yourselves.  After agreeing on an approach like TAR, it is difficult to change course if it turns out to be more expensive than anticipated.  Make sure you understand what can be accomplished.  Every case is different.  Text rich documents are good for TAR.  Excel files may not work as well.  If a vendor claims success with TAR, ask what kind of case, how big it was, and how they trained the system.  Tolerance for transparency depends on who the other side is.  Exchanging seed sets is “almost common practice,” but you can make an argument against disclosing non-relevant documents.  One might be more reluctant to disclose non-relevant documents to a private party (compared to disclosing to the government, where they “won’t go anywhere”).  Recipient of seed documents doesn’t have any way to know if something important was missing from the seed set (see this article for more thoughts on seed set disclosure).  Regulators don’t like culling before TAR is applied.  In the Biomet case, culling was done before TAR and the court did not require the producing party to redo it (in spite of approximately 40% of the relevant documents being lost in the culling).

Training was often done by a subject matter expert in the past.  More and more, contract reviewers are being used.  How to handle foreign language documents?  Should translations be reviewed?  Should the translator work with the reviewer?  Consider excluding training documents having questionable relevance.  When choosing the relevance score threshold that will determine which documents will be reviewed, you can tell how much document review will be required to reach a certain level of recall, so proportionality can be addressed.  “Relevance rank” is a misnomer–it is measuring how similar (in a sense) the document is to relevant documents from the training set.

Judge Peck has argued that Daubert doesn’t apply to TAR, whereas Judge Waxse has argued that it does apply (neither of them were present).  Judge Hedges thinks Waxse is right.  TAR is not well defined–definitions vary and some are very broad.  If some level of recall is reached, like 80%, the 20% that was missed could contain something critical.  It is important to ensure that metrics are measuring the right thing.  The lawyer overseeing e-discovery should QC the results and should know what the document population looks like.

Managing Your Project Manager’s Project Manager: Who’s On First?
I couldn’t attend this one.

E-Discovery & Compliance
I couldn’t attend this one.

Solving the Privilege Problem
I couldn’t attend this one.

What Your Data Governance Team Can Do For You
I couldn’t attend this one.

The Anatomy of a Tweet
Interpreting content from social media is challenging.  Emojis could be important, though they are now passé (post a photo of yourself making the face instead).  You can usually only collect public info unless it is your client’s account.  Social media can be used to show that someone wasn’t working at a particular time.  A smartphone may contain additional info about social media use that is not available from the website (number of tweets can reveal existence of private tweets or tweets that were posted and deleted).  Some tools for collecting from social media are X1, Nextpoint, BIA, and Hanzo.  They are all different and are suitable for different purposes.  You may want to collect metadata for analysis, but may want to present a screenshot of the webpage in court because it will be more familiar.  Does the account really belong to the person you think it does?

The Essence of E-Discovery Education
I couldn’t attend this one.

Women to Know: What’s Your Pitch / What’s Your Story
I couldn’t attend this one.

Establishing the Parameters of Ethical Conduct in the Legal Technology Industry – LTPI Working Session
I couldn’t attend this one.

Tracking Terrorism in the Digital Age & Its Lessons for EDiscovery – Judicial Perspectives
Judges Francis, Hedges, Rodriguez, and Sciarrino discussed legal issues around Apple not wanting to crack the iPhone the San Bernardino killers used and other issues around corporate obligations to aid an investigation.  The All Writs Act can compel aid if it is aceds2016_judgesnot too burdensome.  The Communications Assistance for Law Enforcement Act of 1992 (CALEA) may be a factor.  Apple has claimed two burdens: 1) the engineering labor required, and 2) its business would be put at a competitive disadvantage if it cracked the phone because of damage to its reputation (though nobody would have known if they hadn’t taken it to court).   They dropped (1) eventually.  The government ultimately dropped the case because they cracked the phone without Apple’s help.  Questions that should be asked are how much content could be gotten without cracking the phone (e.g., from cloud backup, though the FBI messed that up by changing a password), and what do you think you will find that is new?  Microsoft is suing to be allowed to tell a target that their info has been requested by the government.  What is Microsoft’s motivation for this?  An audience member suggested it may be to improve their image in privacy-conscious Germany.  Congress should clarify companies’ obligations.

EDna Challenge Part 2
The EDna challenge attempted to find low-cost options for handling e-discovery for a small case.  The challenge was recently revisited with updated parameters and requirements.  SaaS options from CSDisco, Logikull, and Lexbe were too opaque about pricing to evaluate.  The SaaS offering from Cloudnine came in at $4660, which includes training.  The SaaS offering from Everlaw came in at $2205.  Options for local applications included Prooffinder by Nuix at $600 (which goes to charity) and Intella by Vound at $4780.  Digital WarRoom has apparently dropped their express version, so they came in above the allowed price limit at $8970.  FreeEed.org is an open source option that is free aside from AWS cloud hosting costs.  Some questioned the security of using a solution like FreeEed in the cloud.  Compared to the original EDna challenge, it is now possible to accomplish the goal with purpose-built products instead of cobbling together tools like Adobe Acrobat.  An article by Greg Buckles says one of the biggest challenges is high monthly hosting charges.

“Bring it In” House
I couldn’t attend this one.

The Living Dead of E-Discovery
I couldn’t attend this one.

The Crystal “Ball”: A Look Into the Future of E-Discovery
Craig Ball pointed out that data is growing at 40% per year.  It is important to be aware of all of the potential sources of evidence.  For example, you cannot disable a phone’s geolocation capability because it is needed for 911 calls.  You may be able to establish someone’s location from their phone pinging WiFi.  The average person uses Facebook 14 times per day, so that provides a record of their activity.  We may be recorded by police body cameras, Google Glass, and maybe someday by drones that follow us around.  Car infotainment systems store a lot of information.  NFC passive tags may be found in the soles of your new shoes.  These things aren’t documents–you can’t print them out.  Why are lawyers so afraid of such data when it can lead to the truth?  Here are some things that will change in the future.

Changing of the guard:  Judge Facciola retired and Judge Scheindlin will retire soon.  Retraction of e-discovery before it explodes: New rules create safe harbors–need to prove the producing party failed on purpose.  Analytics “baked into” the IT infrastructure: Microsoft’s purchase of Equivio.  Lawyers may someday be able to look at a safe part of the source instead of making a copy to preserve the data.  Collection from devices will diminish due to data being held in the cloud.  Discovery from automobiles will be an emerging challenge.

Traditional approaches to digital forensics will falter.  Deleted files may be recovered from hard disk drives if the sectors are not overwritten with new data, but recovering data from an SSD (solid-state drive) will be much harder or impossible.  I’ll inject my own explanation here:  A data page on a SSD must have old data cleared off before new data can be written to it, which can be time consuming.  To make writing of data faster, newer drives and operating systems support something called TRIM, which allows the operating system to tell the drive to clear off content from a deleted file immediately so there will no be no slowness introduced by clearing it later when new data must be written.  So a SSD with TRIM will erase the file content shortly after the file is deleted, whereas a hard drive with leave it on the disk and simply overwrite it later if the space is needed to hold new data.  For more on forensics with SSDs see this article.

Encryption will become a formidable barrier.  Lawyers will miss the shift from words to data (e.g., fail to account for the importance of emoticons when analyzing communications).  Privacy will impact the scope of discovery.

Metrics That Matter
I couldn’t attend this one.

Avoiding Sanctions in 2016
I couldn’t attend this one.

Master Class: Interviewing in eDiscovery
I couldn’t attend this one.

E-Discovery & Pro-Bono Workshop
I couldn’t attend this one.

 

One thought on “Highlights from the ACEDS 2016 E-Discovery Conference

  1. Pingback: Why Your Small Firm Needs E-Discovery, and Where to Get It. | Goldfynch Blog

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