eDiscovery Before and After COVID-19: What to Expect

Episode Notes

Transcript

Digital Detectives

eDiscovery Before and After COVID-19 What to Expect

05/21/2020

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Intro: Welcome to Digital Detectives, reports from the battlefront. We will discuss computer forensics, electronic discovery and information security issues and what’s really happening in the trenches; not theory, but practical information that you can use in your law practice, right here on the Legal Talk Network.

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Sharon D. Nelson: Welcome to the 115th Edition of Digital Detectives. We are glad to have you with us. I am Sharon Nelson, President of Sensei Enterprises, a digital forensics, cybersecurity, and information technology firm in Fairfax, Virginia.

John W. Simek: And I am John Simek, Vice President of Sensei Enterprises. Today on Digital Detectives our topic is, ‘eDiscovery Before and After COVID-19 What to Expect’.

Sharon D. Nelson: Before we get started, I would like to thank our sponsors. Thanks to our sponsor Logikcull, instant discovery software for modern legal teams. Logikcull offers perfectly predictable pricing at just $250 per matter per month. Create your free account at anytime at logikcull.com/ltn.

We would also like to thank our sponsor PInow.com. If you need a private investigator you can trust, visit pinow.com to learn more.

John W. Simek: Today our guest is Doug Austin, an established eDiscovery thought leader with over 30 years of experience providing eDiscovery best practices, legal technology consulting, and technical project management services to numerous commercial and government clients. Doug has published a daily blog since 2010 and has written numerous articles and white papers. Doug has presented at numerous events and conferences, including Legaltech New York, ILTACON, Relativity Fest, University of Florida EDiscovery Conference, Masters Conference and many local and regional conferences. Doug has also presented numerous CLE-accredited webcasts.

And as usual, it’s great to have you back with us again, Doug.

Doug Austin: Well thanks for having me. I always have a lot of fun being on Digital Detectives talking shop with the two of you.

Sharon D. Nelson: Well, it’s a it’s a yippee kind of day because you have a brand new blog, eDiscovery today. So congratulations on that and tell us how this particular blog will be different from your previous blog which as you know I adored.

Doug Austin: Well thank you Sharon and yes I am very happy about that. Well first let me talk about how it’ll be the same. Just like my previous blog eDiscovery Daily, eDiscovery Today will involve daily coverage of eDiscovery, cybersecurity and data privacy trends best practices in case law. So people who come to expect Daily Post from me there, can expect the same here.

What will be different is that — that now I’ve got the flexibility to cover a lot more topics as an independent blog than I did as part of Cloud9. I’m grateful to Cloud9 for giving me a platform for blogging for nearly 10 years and they never really tried to dictate what I covered but it was still understood there were certain topics that you can’t or shouldn’t cover as a provider blog but now I’ve got complete flexibility to cover whatever I want with eDiscovery today, including the ability to cover interesting stories from pretty much any eDiscovery provider out there.

The other thing I think that’ll make eDiscovery today unique, is that often may cover more than one story a day. A Cloud9 had a day job, so my blogging time was limited but at least for now, with eDiscovery today, I’ve got more time to find interesting topics to bring to my audience. So I often find a couple of topics today, many days to cover. I’m not going as far as considering changing the name to eDiscovery hourly, but I’ll have the ability to expand my cover to even more topics than I did before.

Sharon D. Nelson: Yeah I’d worry about that hourly change.

Doug Austin: Yeah.

Sharon D. Nelson: You need to have a life.

Doug Austin: Yeah I’m crazy, but I’m not that crazy.

John W. Simek: There’s this overrated thing called sleep, Doug.

Doug Austin: it is overrated, unfortunately.

John W. Simek: Well Doug, since your blog focuses attorney education, tell us a little bit about your observation on the state of lawyer competence in eDiscovery today, and I’ll be curious if it’s, similar to ours.

Doug Austin: Well and I think we’ve talked about this before. I think it’s marginally improved but I definitely think it’s still has long way to go. According to Bob Ambrogi’s excellent law sites blog, we do now have 38 states that have adopted the duty of technology competence inspired by ABA Model Rule 1.1, so that’s some progress but last I checked, I think only two of them Florida and North Carolina have added a required technology component to their CLE requirements. So for most states, the duty of technology competence isn’t backed up by any formalized requirement to develop that competence.

(00:04:58)

As for eDiscovery we only have one State California that’s issued any formal guidance and that’s in the form of an opinion on eDiscovery competence, and ironically there are still one of the states that’s yet to adopt the duty of technology competence so go figure.

There’s also a few law schools with terrific eDiscovery programs like the one Bill Hamilton runs at the University of Florida and Craig Ball has taught eDiscovery at the University of Texas for years but from — everything I’ve heard out there, law school programs teaching eDiscovery are still pretty few and far between unfortunately.

Sharon D. Nelson: How have the educational resources impacted attorney education.

Doug Austin: Well there’s lots of free education out there. Blogs like eDiscovery today, Craig Ball in your court blog and Sharon you’re right, the lightening blog. Resources like those you’ll find on the EDRM site, plenty of other free publications, like Rob Robinson’s ComplexDiscovery site. There’s even plenty of opportunities right now for free CLE education, more CLE based webinars than ever since the pandemic began. So lawyers don’t have to pay to keep the their CLE requirements current and many in this eDiscovery community are very generous with their time and resources when it comes to education.

Craig has written free primers on things like production formats, processing and the social media preservation. All of EDRMs resources are free for use, as long as you attribute where you got it, you can use and benefit from it, and even eDiscovery providers you’re doing a lot there. You’re seeing companies like Relativity, Exterro, IPRO, HaystackID are just some examples of companies that have great educational programs and it really benefits those companies to do so, the companies that tend to take education seriously, or I think themselves taken more seriously in the marketplace. So to coin a phrase, there’s plenty of water to lead the horses to, it’s just a matter of getting them to drink.

Sharon D. Nelson: We know how that turns out.

Doug Austin: Right, unfortunately. We’ve still seen many high-profile failures of attorneys to adhere to eDiscovery best practices and often with disastrous results and not just in smaller firms but at large firms, corporations and government agencies. So there’s still a long way to go but the resources I feel are there.

John W. Simek: Doug before the pandemic changed everything, are there any recently discovery trends that, that you’ve observed?

Doug Austin: Yeah you really do have to kind of talk before pandemic and after pandemic, don’t you. But one trend that I’ve seen over the past, probably year plus is an increasing variety of sources to manage these days, has caused a greater focus on the left side of the EDRM Model by the market. You’re now dealing with collection from Office 365, G Suite, from mobile devices, from messaging platforms like Slack and Skype and Teams and from social media sites and that’s become the new significant challenge that organizations are having to address because these sources of data are much more routinely discoverable, and it’s not just about collection from these sources. It’s also about presentation of them in a usable form that’s even a bigger challenge.

Unlike emails, which generally store the entire thread of the conversation to that point making each email a self-contained conversation. Text messages are simply an individual response within a conversation. So you’ve got to piece back together the conversation that the messages, into a conversation for review and we’re starting to see providers focus on solutions that address that need. I know when I was on the program last time, I used the Yogi Berra quote regarding email and the fact that we all get so many emails, we turn to texts and messaging apps for urgent communications. But that’s why these sources of ESI are almost always discoverable, as discoverable all these days and why there’s so much focus on addressing them.

Of course cybersecurity and data privacy also have become so intertwined with eDiscovery that you simply have to address those as part of the landscape these days. We continue to see more high profile data breaches with law firms and eDiscovery providers out there and we also continue to see more data privacy legislation. So every company simply has to account for both cybersecurity and data privacy in these days as part of their eDiscovery workflow.

Sharon D. Nelson: It’s been quite a challenge, hasn’t it?

Doug Austin: It has and it’s continually changing so that’s one of the things that makes companies have to continually change their eDiscovery workflow to account for it.

Sharon D. Nelson: Well as someone who practices in cybersecurity that kind of makes me happy.

Doug Austin: Right. I am sure it does.

Sharon D. Nelson: Well Doug your blog, your former blog has always been known for its case law coverage and it was — honestly it was my go-to way to follow the cases, was to look at your blog. So what recent case law trends have you seen out in the wild?

Doug Austin: Well first of all, thank you. I’ve always covered and I will continue to cover about 60 to 70 cases a year.

(00:09:58)

Thanks in large part to Kelly Twigger and her eDiscovery system platform where I get all my cases. If I were probably to say what’s kind of recent trends, I’d probably say there are at least three trends that I’ve seen emerged from my recent case law coverage.

First, we’re certainly seeing more formal production disputes where finally more requesting parties are asking for native formats that maximize the metadata they can receive. We just discussed that in an ACEDS Webinar I did last week and actually you can watch that webinar on the eDiscovery today. I posted it up on — I posted it last week so certainly you can check that out.

I’d say this, the next trend I’ve seen are a lot more cases related to third-party discovery and Motions to Compel. It seems as though requesting parties are turning to other sources to get the discovery that they can’t seem to get from the producing parties themselves.

So there have been a lot more disputes that have been focused on relevancy and possession of custody and control from those third parties.

And finally, maybe the biggest one that I’ve seen is more cases related to spoliation sanction requests for failing to preserve mobile device data, especially related to failure to suspend automatic deletion of text and sometimes other messaging apps as well. Parties aren’t doing a good job to update their preservation processes to ensure that mobile devices and messaging apps are accounted for. And custodians unfortunately sometimes even outright discard their mobile devices without preserving the data first, and oftentimes don’t still get severe sanctions for doing so.

So I expect we’re going to see more and more of those cases as well.

Sharon D. Nelson: Yeah, I have no doubts you’re right.

Doug Austin: Yeah for sure.

John W. Simek: Well before we move on to our next segment, let’s take a quick commercial break.

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Sharon D. Nelson: Welcome back to Digital Detectives on the Legal Talk Network. Today our topic is ‘eDiscovery Before and After COVID-19: What to Expect’. Today our guest is Doug Austin, an established eDiscovery thought leader with over 30 years of experience providing eDiscovery best practices, legal technology consulting and technical project management services to numerous commercial and government clients.

John W. Simek: Well Doug, how do you think this pandemic is ultimately going to impact the legal profession, I know we’ve got tons of changes already, but specifically the eDiscovery industry in particular?

Doug Austin: Well, I certainly think most of us agree that there will be a new normal of remote work and collaboration. Suddenly many companies have had to take a look at their business continuity plans or maybe they’ve had to even create them in the first place, and make sure they account for this new normal of remote work.

We had a business continuity plan at CloudNine when I was there and we actually had to act on it once before, back in 2017 when Houston was hit by Hurricane Harvey and our entire office had to work from home for the entire week afterward because many roads leading to the office were flooded for days. We all work from home and we didn’t miss the beat.

So business continuity has become so much more important for pretty much every business out there as a result of the pandemic, whether they’re in eDiscovery or not.

Certainly, I also feel that the increase in remote workers unfortunately is also going to increase in vulnerability of companies to hackers. Let’s face it, the more openings into a company, the more likely a hacker can find one to exploit. Everybody may be using a different type of computer and a different ISP set up and companies are going to have to ensure or try to ensure some standardization to minimize their exposure.

Unfortunately, many won’t do it or many won’t do it fast enough and I’m afraid we’re going to see data breaches go up and probably way up.

(00:14:55)

From an eDiscovery specific standpoint, I would definitely say that the importance of discovering audio and video is also likely to go way up, as companies are likely going to have exponentially more audio and video recordings from Zoom and other web conferencing platforms than ever before.

They’re going to take the opportunity to preserve that record for all these meetings that they’re having and there’s going to be a lot more audio and video files out there.

So in my opinion, audio and video discovery just took a huge leap and importance from an eDiscovery standpoint and I think you’re going to see that companies are going to really try to work on solutions to even improve the ability to handle those forms of electronically stored information.

Sharon D. Nelson: Unsurprisingly, I totally agree with that. Both the new audio-visual evidence we’re going to see, because everybody is now doing things via Zoom or some other platform like that, and also the endpoint protections, you’re quite right, that the remote working is a threat and I can remember one day we did 20 contracts for endpoint protection from law firms who are clients, who we had pleaded to get the endpoint protection extended and they didn’t want it until they realized how vulnerable they were when they were working from home. That’s a very good point to underscore.

Doug Austin: Yeah, I like the analogy, you know somebody, I read an analogy somewhere, what’s easier to break into a bunker with one entrance for a mansion with 35 windows and five doors. Obviously, all you have to do is find one entry point and you’re in and it’s much easier to do now.

Sharon D. Nelson: It is much easier to do, yeah, and I think the same thing that we’re going to see some really bad leakages and breaches, so that will be interesting to monitor over time.

Doug Austin: Yeah, and we already has, yeah.

Sharon D. Nelson: Yeah, we have, we have indeed. I will be curious to see what that celebrity law firm, how they got into there, but we don’t know that yet.

Doug Austin: Yep.

Sharon D. Nelson: So what do you think eDiscovery providers need to do to emerge from this pandemic successfully, because I know even a lot of law firms are worried about that?

Doug Austin: Sure. Well, so I just read an article this morning that discussed the possibility that companies may exercise the force majeure clauses in their contracts to free them from obligations, either temporarily or permanently. So that’s certainly one concern that companies have to deal with.

And as you guys know, many eDiscovery relationships can be as much as four or five companies deep. You will have a corporation which uses a law firm for litigation and that law firm outsources work to an eDiscovery service provider which in turn uses one or more eDiscovery software provider to provide those services. And maybe one of those software providers outsources work to a managed review provider.

So if that corporation struggles it impacts four other companies. So to the extent possible I think providers are going to have to be prepared to be flexible with their customers as some of them may need to delay payments and extend terms.

Those who do, I believe will build loyalty for the long term. Providers that take a hard line on payments they may sacrifice the relationship in the long run just to maintain that short-term cash flow. So that’s certainly one of the things I think that companies will need to do is kind of recognize the situation everybody’s in and work with their customers.

John W. Simek: Well Doug, it’s no secret, the unemployment rate just continues to slope upward and I don’t know when if ever it’s going to start to turn around, but what recommendations would you have for all the legal professionals that have lost their jobs as a result of this pandemic?

Doug Austin: Well first, I can say that I feel your pain as I am one of you. I lost my job at the beginning of April. I wrote a two-part blog post with considerations for those displaced with my own recommendations and those of Jared Coseglia of TRU Staffing, who indicated that he seen a huge increase in resume submitted, not surprisingly.

Certainly now’s the time to get your certifications which will help boost your resume as you job hunt and we’re seeing some providers EDT Software as an example, offering those for free, for people who are out of work.

Another thing I would say is be as active as you can be on social media. Jared had a great quote in our article, he said 90% of credibility is visibility, and I couldn’t agree more. Catch up on your reading. There’s — as we already said there’s many resources, terrific resources out there, including your blog Sharon, my blog and other sites. Attend webinars, again, there’s many free webinars out there as it’s right now one of the primary ways providers can reach out to the market.

And while you should certainly make sure to coordinate your job search through a recruiter, also reach out to your inner circle. They may not have a job for you, but many of them can offer advice and other support. eDiscovery today exists in large part to support from Craig Ball, and from Mary Mack and Kaylee Walstad of EDRM. They offered to be foundational sponsors of my new blog, which really helped me get it launched quickly and successfully.

(00:20:03)

And now I have my first educational sponsor, HaystackID with hopefully more to announce very soon and all that started for me by reaching out to my inner circle.

Sharon D. Nelson: Well that’s wonderful advice and I especially love that quote 95% of credibility is visibility, that’s — I’m going to steal that one Doug.

Doug Austin: That’s a good one to steal.

Sharon D. Nelson: Now do you think that there are — is any good news that will come out of the pandemic for legal professionals because I know John and I do think that there are some positives but what do you think?

Doug Austin: Well, I almost hate to classify this as good news, but in our industry it is good news. Many people do expect a ton of litigation to result from the pandemic and the corresponding economic crisis and we’re certainly already starting to see some of that.

LinkedIn published, recently published a Workforce Confidence Index which indicated that those in the legal profession were feeling more secure in their profession than any other industry except for public administration and we know those jobs aren’t going anywhere. So I feel the jobs are coming back and it’s really I think just a matter of when.

I also think that the force move toward remote work has opened up job opportunities to any location as opposed to requiring job positions to be filled in a particular job market. We were already seeing more remote work scenarios even before the pandemic but it’s certainly been accelerated, considerably since. So I think smart employers will snap up qualified candidates even if they’re not located in their primary markets and they’ll figure out how to get the most out of them where they are looking.

John W. Simek: Well Doug, final question for you. Do you have any remaining final thoughts or recommendations for our listeners?

Doug Austin: Well you know the saying, at least you have your health, may be try, but it’s also never been more appropriate to. If you’re healthy, count your blessings, do everything possible to stay safe and stay well. That’s really the most important thing. The business and job challenges are short-term and they’ll get better. I truly believe that and I truly believe that everything happens for a reason.

Sharon D. Nelson: Well that’s very inspiring and we sure thank you for being our guest today Doug. I know you and I have been professional friends for a long time, admired each other’s work and I have had the opportunity, the splendid opportunity of watching you and your good work now for so many years that as you know, I said use me as a reference. So I hope that anybody on this list who — anybody listening to us, I’m certainly willing to talk with you about how much I’ve admired Doug for how long and why and thank you for just sharing your thoughts with us today. It’s such a strange time but I like the fact that you ended on such an inspirational note., that’s just the kind of guy you are.

Doug Austin: Well thank you Sharon and thank you John. I appreciate that. Certainly as always, I had a great time discussing trends with you and I really enjoy your Digital Detective series. I never miss one of your interviews and if you allow me to end on one last shameless plug, I hope everybody will check out my new blog eDiscovery Today, that’s ediscoverytoday.com altogether with no dashes. So I can’t help but end with a shameless plug, but I do appreciate the support, and thanks for having me guys I really appreciate it.

Sharon D. Nelson: Well you know I’m already a subscriber but I agree. It’s good advice to be a subscriber.

John W. Simek: Well that does it for this edition of Digital Detectives. And remember you can subscribe to all the editions of this podcast at legaltalknetwork.com or in Apple Podcasts. And if you enjoyed our podcast, please rate us on Apple Podcasts.

Sharon D. Nelson:  And you can find out more about Sensei’s digital forensics technology and cybersecurity services at senseient.com.

We will see you next time on Digital Detectives.

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Outro: Thanks for listening to Digital Detectives on the Legal Talk Network. Check out some of our other podcasts on legaltalknetwork.com and in iTunes.

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