The annual EDRM Workshop was held at Duke Law School starting on the evening of May 15th and ending at lunch time on the 17th. It consisted of a mixture of panels, presentations, working group reports, and working sessions focused on various aspects of e-discovery. I’ve provided some highlights below. You can find my full set of photos here.
Herb Roitblat presented a paper on fear of missing out (FOMO). If 80% recall is achieved, is it legitimate for the requesting party to be concerned about what may have been missed in the 20% of the responsive documents that weren’t produced, or are the facts in that 20% duplicative of the facts found in the 80% that was produced?
A panel discussed the issues faced by in-house counsel. Employees want to use the latest tools, but then you have to worry about how to collect the data (e.g., Skype video recordings). How to preserve an iPhone? What if the phone gets lost or stolen? When doing TAR, can the classifier/model be moved between cases/clients? New vendors need to be able to explain how they are unique, they need to get established (nobody wants to be on the cutting edge, and it’s hard to get a pilot going), and they should realize that it can take a year to get approval. There are security/privacy problems with how law firms handle email. ROI tracking is important. Analytics is used heavily in investigations, and often in litigation, but they currently only use TAR for prioritization and QC, not to cull the population before review. Some law firms are adverse to putting data in the cloud, but cloud providers may have better security than law firms.
The GDPR team is working on educating U.S. judges about GDPR and developing a code of conduct. The EDRM reference will be made easier to update. The AI group is focused on AI in legal (e.g., estimating recidivism, billing, etc.), not implications of AI for the law. The TAR group’s paper is out. The Privilege Logs group wants to avoid duplicating Sedona’s effort (sidenote: lawyers need to learn that an email is not priv just because a lawyer was CC’ed on it). The Stop Words team is trying to educate people about things such as regular expressions, and warned about cases where you want to search for a single letter or a term such as “AN” (for ammonium nitrate). The Proportionality group talked about the possibility of having a standard set of documents that should be produced for certain types of cases and providing guidelines for making proportionality arguments to the court.
A panel of judges said that cybersecurity is currently a big issue. Each court has it’s own approach to security. Rule 16 conferences need to be taken seriously. Judges don’t hire e-discovery vendors, so they don’t know costs. How do you collect a proprietary database? Lawyers can usually work it out without the judge. There is good cooperation when the situations of the parties isn’t too asymmetric. Attorneys need to be more specific in document requests and objections (no boilerplate). Attorneys should know the case better than the judge, and educate the judge in a way that makes the judge look good. Know the client’s IT systems and be aware of any data migration efforts. Stay up on technology (e.g., Slack and text messages). Have a 502(d) order (some people object because they fear the judge will assume priv review is not needed, but the judges didn’t believe that would happen). Protect confidential information that is exchanged (what if there is a breach?). When filing under seal, “attorney’s eyes only” should be used very sparingly, and “confidential” is over used.