This retreat was the first one held by Ing3nious in the Southeast. It was at the Chateau Elan
Winery & Resort in Braselton, Georgia. Like all of the e-discovery retreats organized by Chris LaCour, it featured informative panels in a beautiful setting. 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.
Peer-to-Peer Roundtables
My table discussed challenges people were facing. These included NSF files (Lotus Notes), weird native file formats, and 40-year-old documents that had to be scanned and OCRed. Companies having a “retain everything” culture are problematic (e.g., 25,000 backup tapes). One company had a policy of giving each employee a DVD containing all of their emails when they left the company. When they got sued they had to hunt down those DVDs to retrieve emails they no longer had. If a problem (information governance) is too big, nothing will be done at all. In Canada there are virtually never sanctions, so there is always a fight about handing anything over.
Proactive Steps to Cut E-Discovery Costs
I couldn’t attend this one.
The Intersection of Legal and Technical Issues in Litigation Readiness Planning
It is important to establish who you should go to. Many companies don’t have a plan (figure it out as you go), but it is a growing trend to have one due to data security and litigation risk. Having an IT / legal liaison is becoming more common. For litigation readiness, have providers selected in advance. To get people on board with IG, emphasize cost (dollars) vs. benefit (risk). Should have an IG policy about mobile devices, but they are still challenging. Worry about data disposition by a third party provider when the case is over. Educate people about company policies.
Examining Your Tools & Leveraging Them for Proactive Information Governance Strategy
I couldn’t attend this one.
Got Data? Analytics to the Rescue
Only 56% of in-house counsel use analytics, but 93% think it would be useful. Use foreign language identification at start to know what you are dealing with. Be careful about coded language (e.g., language about fantasy sports that really means something else) — don’t cull it! Graph who is speaking to whom. Who are emails being forwarded to? Use clustering to find themes. Use assisted redaction of PII, but humans should validate the result (this approach gives a 33% reduction in time). Re-OCR after redaction to make sure it is really gone. Alex Ponce de Leon from Google said they apply predictive coding immediately as early-case assessment and know the situation and critical documents before hiring outside counsel (many corporate attorneys in the audience turned green with envy). Predictive coding is also useful when you are the requesting party. Use email threading to identify related emails. The requesting party may agree to receive just the last email in the thread. Use analytics and sampling to show the judge the burden of adding custodians and the number of relevant documents expected — this is much better than just throwing around cost numbers. Use analytics for QC and reviewer analysis. Is someone reviewing too slow/fast (keep in mind that document type matters, e.g. spreadsheets) or marking too many docs as privileged?
The Power of Analytics: Strategies for Investigations and Beyond
Focus on the story (fact development), not just producing documents. Context is very important for analyzing instant messages. Keywords often don’t work for IMs due to misspellings. Analytics can show patterns and help detect coded language. Communicate about how emails are being handled — are you producing threads or everything, and are you logging threads or everything (producing and logging may be different). Regarding transparency, are the seed set and workflow work product? When working with the DOJ, showed them results for different bands of predictive coding results and they were satisfied with that. Nobody likes the idea of doing a clawback agreement and skipping privilege review.
Freedom of Speech Isn’t Free…of Consequences
The 1st Amendment prohibits Congress from passing laws restricting speech, but that doesn’t keep companies from putting restrictions on employees. With social media, cameras everywhere, and the ability of things to go viral (the grape lady was mentioned), companies are concerned about how their reputations could be damaged by employees’ actions, even outside the workplace. A doctor and a Taco Bell executive were fired due to videos of them attacking Uber drivers. Employers creating policies curbing employee behavior must be careful about Sec. 8 of the National Labor Relations Act, which prohibits employers from interfering with employees’ Sec. 7 rights to self-organize or join/form a labor organization. Taken broadly, employers cannot prohibit employees from complaining about working conditions since that could be seen as a step toward organizing. Employers have to be careful about social media policies or prohibiting employees from talking to the media because of this. Even a statement in the employee handbook saying employees should be respectful could be problematic because requiring them to be respectful toward their boss could be a violation. The BYOD policy should not prohibit accessing Facebook (even during work) because Facebook could be used to organize. On the other hand, employers could face charges of negligent retention/hiring if they don’t police social media.
Generating a Competitive Advantage Through Information Governance: Lessons from the Field
I couldn’t attend this one.
Destruction Zone
The government is getting more sophisticated in its investigations — it is important to give 
them good productions and avoid losing important data. Check to see if there is a legal hold before discarding old computer systems and when employees leave the company. It is important to know who the experts are in the company and ensure communication across functions. Information governance is about maximizing value of information while minimizing risks. The government is starting to ask for text messages. Things you might have to preserve in the future include text messages, social media, videos, and virtual reality. It’s important to note the difference between preserving the text messages by conversation and by custodian (where things would have to be stitched back together to make any sense of the conversation). Many companies don’t turn on recording of IMs, viewing them as conversational.
Managing E-Discovery as a Small Firm or Solo Practitioner
I couldn’t attend this one.
Overcoming the Objections to Utilizing TAR
I was on this panel, so I didn’t take notes.
Max Schrems, Edward Snowden and the Apple iPhone: Cross-Border Discovery and Information Management Times Are A-Changing
I couldn’t attend this one.