The 2016 Masters Conference in NYC was a one-day e-discovery conference held at the New Yorker. There were two simultaneous sessions throughout the day, so I couldn’t attend everything. Here are my notes:
Faster, Better, Cheaper: How Automation is Revolutionizing eDiscovery
I was on this panel, so I didn’t take notes.
Five Forces Changing Corporate eDiscovery
68% of corporations are using some type of SaaS/cloud service. Employees want to use things like Dropbox and Slack, but it is a challenge to deal with them in ediscovery–the legal department is often the roadblock to the cloud. Consumer products don’t have compliance built-in. Ask the vendor for corporate references to check on ediscovery issues. 72% of corporations have concerns about the security of distributing ediscovery data to law firms and vendors. 80% rarely or never audit the technical competence of law firms and vendors (the panel members were surprised by this). Audits need to be refreshed from time to time. Corporate data disposition is the next frontier due to changes in the Federal Rules and cybersecurity concerns. Keeping old data will cause problems later if there is a lawsuit or the company is hacked. Need to make sure all copies are deleted. 96% of corporations use metrics and reporting on their legal departments. Only 28% think they have enough insight into the discovery process of outside counsel (the panel members were surprised by this since they collaborate heavily with outside counsel). What is tracked:
|52%||eDiscovery Spend per GB|
|48%||Total Review Spend|
28% of the litigation budget is dedicated to ediscovery. 44% of litigation strategies are affected by ediscovery costs. 92% would use analytics more often if cost was not an issue. The panelists did not like extra per-GB fees for analytics–they prefer an all-inclusive price (sidenote: If you assume the vendor is collecting money from you somehow in order to pay for development of analytics software, including analytics in the all-inclusive price makes the price higher than it would need to be if analytics were excluded, so your non-analytics cases are subsidizing the cases where analytics are used).
Benefits and Challenges in Creating an Information Governance (IG) Program
I couldn’t attend this one.
Connected Digital Discovery: Can We Get There?
There is an increasing push for BYOD, but 48% of BYOD employees disable security. Digital investigation, unlike ediscovery, involves “silent holds” where documents are collected without employee awareness. When investigating an executive, must also investigate or do a hold on the executive’s assistant. The info security department has a different tool stack than ediscovery (e.g., network monitoring tools), so it can be useful to talk to them.
How to Handle Cross-Border Data Transfers in the Aftermath of the Schrems Case
I couldn’t attend this one.
TAR in litigation and government investigation: Possible Uses and Problems
Tracy Greer said the DOJ wants to know the TAR process used. Surprisingly, it is often found to deviate from the vendor’s recommended best practices. They also require disclosure of a random sample (less than 5,000 documents) from the documents that were predicted to be non-relevant (referred to as the “null set” in the talk, though I hate that name). Short of finding a confession of a felony, they wouldn’t use the documents from the sample against the company–they use the sample to identify problems as early as possible (e.g., misunderstandings about what must be turned over) and really want people to feel that disclosing the sample is safe. Documents from second requests are not subject to FOIA. They are surprised that more people don’t seem to do email domain filtering. Doing keyword search well (sampling and constructing good queries) is hard. TAR is not always useful. For example, when looking for price fixing of ebooks by Apple and publishers it is more useful to analyze volume of communications. TAR is also not useful for analyzing database systems like Peoplesoft and payroll systems. Recommendations:
|Keyword search before TAR||No|
|Initial review by SME||Yes|
|Initial review by large team||No|
The “overturn rate” is the rate at which another reviewer disagrees with the relevance determination of the initial reviewer. A high overturn rate could signal a problem. The overturn rate is expected to decrease over time. The DOJ expects the overturn rate to be reported, which puts the producing party on notice that they must monitor quality. The DOJ doesn’t have a specific recall expectation–they ask that sampling be done and may accept a a smaller recall if it makes sense. Judge Hedges speculated that TAR will be challenged someday and it will be expensive.
The Internet of Things (IoT) Creates a Thousand Points of (Evidentiary) Light. Can You See It?
I couldn’t attend this one.
The Social Media (R)Evolution: How Social Media Content Impacts e-Discovery Risks and Costs
Social media is another avenue of attack by hackers. They can hijack an account and use it to send harmful links to contacts. Hackers like to attack law firms doing M&A due to the information they have. Once hacked, reliability of all data is now in question–it may have been altered. Don’t allow employees to install software or apps. Making threats on social media, even in jest, can bring the FBI to your doorstep in hours, and they won’t just talk to you–they’ll talk to your boss and others.
Early Returns from the Federal Rules of Civil Procedure Changes
New rule 26(b)(1) removes “reasonably calculated to lead to the discovery of admissible evidence.” Information must be relevant to be discoverable. Should no longer be citing Oppenheimer. Courts are still quoting the removed language. Courts have picked up on the “proportional to the needs of the case” change. Judge Scheindlin said she was concerned there would be a lot of motion practice and a weakening of discovery with the new rules, but so far the courts aren’t changing much. Changes were made to 37(e) because parties were over-preserving. Sanctions were taken out, though there are penalties if there was an intent to deprive the other party of information. Otherwise, the cure for loss of ESI may be no greater than necessary to cure prejudice. Only applies to electronic information that should have been preserved, only applies if there was a failure to take reasonable steps, and only applies if the information cannot be restored/replaced via additional discovery. What are “reasonable steps,” though? Rule 1 requires cooperation, but that puts lawyers in an odd position because clients are interested in winning, not justice. This is not a sanctions rule, but the court can send you back. Judge Scheindlin said judges are paying attention to this. Rule 4(m) reduces the number of days to serve a summons from 120 to 90. 16(b)(2) reduces days to issue a scheduling order after defendant is served from 120 to 90, or from 90 to 60 after defendant appears. 26(c)(1)(B) allows the judge to allocate expenses (cost shifting). 34(b)(2)(B) and 34(b)(2)(C) require greater specificity when objecting to production (no boilerplate) and the objection must state if responsive material was withheld due to the objection. The 50 states are not all going along with the changes–they don’t like some parts.
Better eDiscovery: Leveraging Technology to its Fullest
When there are no holds in place, consider what you can get rid of. Before discarding the discovery set, analyze it to see how many of the documents violated the retention policy–did those documents hurt your case? TAR can help resolve the case faster. Use TAR on incoming documents to see trends. Could use TAR to help with finding privileged documents (thought the panelist admitted not having tried it). Use TAR to prioritize documents for review even if you plan to review everything. Clustering helps with efficiency because all documents of a particular type can be assigned to the same lawyer. Find gaps in the production early–the judge will be skeptical if you wait for months. Can use clustering on custodian level to see topics involved. Analyze email domains.
Vendor Selection: Is Cost the Only Consideration?
I couldn’t attend this one.
The conference ended with a reception at the top of the Marriott. The conference also promoted a fundraiser for the victims of the shooting in Orlando.