Tag Archives: Georgetown

Litigators, #BigData and #InfoGov – #GeorgetownEDI Part IV

Leave a reply

Plenty of folks have asked me, when I say I do eDiscovery, “Oh, so you do records management?” The answer is not really. Records and Information Management (“RIM”) and Information Governance (“IG”) share a Venn diagram with eDiscovery, but there are large areas where the two exist independently and require different knowledge and skill sets. I’m happy to help as much as I can, but RIM isn’t the same as eDiscovery or litigation readiness. I can offer value on some specific issues because a corporate litigant’s information management culture impacts litigation and the eDiscovery experience feeds back into information governance.

EDiscovery specialists often back into RIM and information governance over time because eDiscovery challenges can be the fire that forces a company to rebuild its information governance house. The cost and complexity of commercial litigation with high volume data requires litigators to think about how their clients manage their data. After the crisis has passed, litigators can offer value from lessons learned in litigation when an organization is revamping or developing an IG plan. This year’s Georgetown Advanced eDiscovery Institute included several panels discussing Big Data and Information Governance. In the last few years the panelists have moved from passively describing Big Data “There’s a lot of it! It’s bigger than Mt. Everest! There’s more every day than there was in the history of time until 1992!” to talking about its value and organizational function. This year there were robust discussions about whether Big Data changes how we think of and use technology assisted review and whether the concept of “defensible deletion” is dead.

The panelists also offered some nice new buzzwords and phrases including “ROT” = Redundant, Obsolete and/or Trivial data and “Baked-in Information Governance” (IG that requires less effort on-the-fly). Incidentally, “Information Governance” is not just “RIM on steroids,” according to this year’s Institute faculty. RIM is more centered around the mechanics of content management and IG is more multidisciplinary policy making at an enterprise level. Also, who ones IG stakeholders are varies between organizations, although generally they include some combination of Legal, IT, Risk, Security, Records and Privacy and may include HR and the business lines.

The other buzz phrase in the information governance discussion was the “black swan”, the unanticipated, high impact (often catastrophic) event. Litigation and scandal (which then results in regulatory inquiry or litigation) are prototypical black swans. Some include data breaches as an example, although at this point I don’t believe they qualify as black swans because they can no longer be described as “unexpected”. The theme that emerged was “don’t waste your black swans.” Most people don’t react to information governance challenges with urgency: the sky isn’t falling until my sky is falling. So when your sky falls, or a black swan falls out of your sky, learn from it. Develop your culture of information governance in a way that allows you to reduce the cost and disruption of future crises by making data more accessible and better organized or your process more transparent. Learn to mine your data. Understand all the types of data your organization creates and maintains. Think through why you have certain data types and how best to use or dispose of all the data types. These are long term, iterative discussions, but overall they result in a healthy organization (with less ROT).

Fun with #SocialMedia #eDiscovery, @MartinTully, @AdamCohenLegal et al at #GeorgetownEDI

Leave a reply

Discovery of social media can be one of those areas that is exciting in theory, but distressing in real life. The panel on social media at Georgetown Advanced eDiscovery Institute last month covered a wide range of issues including privacy (or lack thereof), admissibility, spoliation and the applicability of the Federal Rules to new technology. As panelist Adam Cohen remarked, “Social media is all your eDiscovery nightmares rolled into one.” Social media is voluminous, cloud-based, structured in a non-linear fashion, rapidly evolving and diverse. But the rules that were designed for paper and have been applied to email still govern tweets and reddits.

Neither relevance nor admissibility requirements disappear when the requestor says, “because Social Media!” Courts and lawyers are still struggling with basic, easily avoided issues like admissibility. For example, an unauthenticated screen shot of a social media post went to the Second Circuit recently. Offering a screen capture without step by step authentication is roughly the equivalent of photographing an email on someone’s computer screen and offering the photo: you might resort to it if you could document when and how you did it, and that it was the person’s computer and so forth, but wouldn’t it be easier to get the document by an agreed procedure and make a bates-stamped photocopy? Likewise, relevance still means the same thing as it does any other time, so a request for “all social media” without an argument why “all” of it is relevant as opposed to a targeted swath of it is no different than any other fishing expedition. Panel moderator Martin Tully pointed out that the Civil Rules don’t allow one to get open ended discovery solely to rummage about in a party’s underwear drawer.

Discussion of social media usually includes a discussion of “the death of privacy”. Social media has changed the perception of what is and is not private because of how people use it. Case law has had to find the right analogies to existing communication forms, but again the rules developed for paper and oral communication still fit. Social media offers many different privacy settings and is not inherently different from email for purposes of relevance. A social media post made available for viewing by 300 friends is less private than a direct message, but a direct message is no less discoverable than an email. A twitter message may be very public, like shouting in a crowded room, but may be completely irrelevant if one never shouts about content relevant to the litigation.

The good news is eDiscovery providers that specialize in social media are working to develop collection technologies that aggregate social media content and allow it to be tagged and reviewed in a fashion that roughly corresponds to its presentation in the user interface. For a practitioner part of the challenge is effectively analogizing social media evidence to other kinds of evidence. But once a litigator finds the right argument, Rules of Evidence and Civil Procedure still apply and are actually quite effective.

Are you listening? In-house counsel lay it on the line about #eDiscovery #Risk and #Process – #GeorgetownEDI

Leave a reply

I’ve been outside counsel my whole career and the thing that impresses me the most about in-house counsel, from my seat in the ballpark, is that they have a job to do. So they’re mostly no B.S: they don’t have to convince you to buy what they’re selling. When an inside counsel says “you’re not warming my heart,” outside counsel had better perk up their ears and take good notes.

This year at the Georgetown Advanced eDiscovery Institute in-house counsel from some of the largest companies in the world in each of their respective sectors (finance, tech, retail, insurance) spoke on a panel about how they handle eDiscovery. The dominant themes were consistency, process control and risk management. Not all of them have set up a freestanding eDiscovery shop in their organization, but they have all built out a significant eDiscovery management capacity because that is the best way for them to arrive at a repeatable business process. They want to maximize efficient and consistent data identification, collection and processing, which often means having as few different players and transactions as possible.

The speakers described minimizing the number of service providers and identifying and selecting sophisticated service providers for repeat business. This decision-making applies specifically to outside counsel as well. An organization with a lot of high value litigation needs a discovery “beach master” on their case team to handle discovery who knows the organization and knows the legal strategy. What I found surprising was the in-house lawyer speaking was clearly still dealing with some firms who put a junior associate on electronic discovery because it is perceived as a low status task.

Another counsel spoke of conflicting risk mindsets between outside and inside counsel. Every inside counsel I’ve ever spoken to says “outside counsel are too risk averse.” Inside counsel manage risk just like any other business factor. They don’t want litigation counsel telling them they can’t take custodians off of hold because “something” might happen, particularly if outside counsel can’t offer a knowledgeable, risk based evaluation of why a particular group of custodians is on hold in the first place. Outside counsel as a profession are still doing a poor job of aligning themselves, logistically and economically, with in-house litigators.

The goal with centralizing in-house eDiscovery is to eliminate process “drift” and allow focused, incident specific response when and where it is actually needed. Putting together the right team and ediscovery strategy allows for a proportionate litigation response that works for the business. Outside counsel need to know that in-house counsel constantly have to do more with less. Again, what is most astonishing for me about these messages is that clearly these inside counsel were used to delivering them and probably saying variations recently, to actual outside law firms. How can it be that in-house counsel at a Fortune 100 country is still saying “there’s some good lawyers out there that just don’t understand the technology.” Of course there are, but how are they getting in those doors?

There’s a time and place for outside service providers – counsel, consultants, software and eDiscovery providers. When my clients need outside counsel, they really need them. And it’s nice to be loved, but anyone who’s been doing it for a fraction of the amount of time I have knows that you don’t just sit around waiting for the work to come to you. There’s a big part of being in any service profession that involves convincing people of your worth and your purpose in the world. With inside counsel people might not always be happy to talk to them (so they tell me), but there’s a reason they have a job. And “we” don’t get jobs if “they” don’t think we understand their values and incentives.

So here’s what I took home:

  • Don’t just listen passively, but anticipate what your client needs in terms of risk and cost.
  • “Your” litigation isn’t their only litigation. Litigation isn’t special, it happens all the time. Make it a repeatable business process, quantify the economic risk.
  • Understand the value proposition in eDiscovery. Cheap isn’t always the right price. Fair price for good quality is the goal.
  • For heaven’s sake, know the technology enough to be an intelligent consumer and advisor.

 

Yoga, Socrates and Jefferson’s Tweets – #eDiscovery #BigData and #Social Media at #GeorgetownEDI

Leave a reply

As the eDiscovery trade matures and more events draw national attendance, Georgetown Law’s Advanced eDiscovery Institute is still top of the pack in its 11th year. This year’s Institute (November 20-21) was a packed house of 600 ediscovery nerds, gathering to listen to leaders in the field speak on panels, tease each other with in-jokes about Technology Assisted Review, collect pens and chargers from the sponsor tables and get CLE credit. The judges most knowledgeable in the field are almost always there. This year featured a special address from retiring U.S. Magistrate Judge John Facciola, who got a standing ovation when he started and when he finished. I’m going to do brief write ups on several of the panels over the next couple of days, but the overarching theme for me, as it was at the Sedona Conference meeting a couple of weeks ago, is the extent to which the capabilities and social role of technology are outstripping the law. A recent New York opinion on social media pointed out that Thomas Jefferson and other Founders would almost certainly have tweeted. They partook in the public discourse of their own day with vigor. But even still lawyers and judges have to stretch applying legal reasoning from 1789 to Big Data, GoogleGlass and Facebook. It’s like yoga for the legal mind: you can get there if you try, but it feels wrong, even if it’s ultimately good for you.

Hon. John Facciola (image credit Ralph Losey)

Hon. John Facciola (image credit Ralph Losey)

This year’s panels included an overview of recent cases on social media production, discussion of warrants and mobile devices, in-house strategies for managing the economic process of high volume ediscovery (always one of my favorites), a lot of discussion of Big Data and the obligatory overview of the revisions to the Federal Rules of Civil Procedure. Just about every panel included a sense of speed and digital change, swamping the most analog of professions. (To be honest, law isn’t even analog). Speakers seemed game, but a little bit dazzled in the face of fitbit data, dense layers of social media metadata and fingerprint locked phones.

Socrates

Socrates

So far the judiciary and the legal profession seem generally comfortable that we will be able to handle new forms and volumes of data that were only possible in speculative fiction when we started practicing. (I’m talking when I started practicing. I’m not even sure that there was the capacity to speculate about some of the things we have today when Judge Facciola started practicing). A contract is still a contract, a tort is still a tort, relevance is still relevance. The incapacitating expense of litigation and the challenge that poses to the integrity of the judicial system is growing. But that isn’t a factor of technology. It’s part of the 1%-ization of our entire economy and society. So while Judge Facciola played out a dialogue between Socrates and himself about the morality and efficacy of the adversary system, that’s the question that’s always with us. It remains to be seen whether the adversary system’s flaws – incentives to hide evidence and fight over minutiae – get worse with expanding technical complexity, or exist independently of it.