Gibson Dunn recently released its 2014 Year-End E-Discovery Update. There was a big focus in the last year on predictive coding solutions, social media, mobile devices, and the upcoming Federal Rules of Civil Procedure (FCRP) amendments. Spring is the time for new trade shows and conferences to discuss this year’s trends in the Discovery industry. Among these are the Jolt Symposium at the University of Richmond and Legaltech New York which both took place in February 2015. What are some of the biggest topics being discussed in technology and electronic discovery so far?
In this episode of The ESI Report, Michele Lange interviews two experts in the e-discovery field, Eric Robinson and James Sherer, about the main takeaways from the Jolt Symposium and Legaltech New York and how current trends could affect the day-to-day jobs of e-discovery professionals. At the Jolt Symposium, Sherer explains, there were discussions about social media implications, artificial intelligence and its application to current and future technology, and an increase in “bring your own device” policies within companies. Robinson attended Legaltech New York and thought the main topics in e-discovery to be predictive coding, maximizing current processes, and gaining efficiencies. Both experts believe the future of e-discovery brings a change in the “save everything” preservation mentality.
Eric Robinson is a solution architect for Kroll Ontrack. He has more than 20 years of experience in litigation, legal consulting, and project management and regularly advises clients on e-discovery matters in corporate audits, investigations, formal litigation and regulatory matters. He is an expert in large, complex, multi-party ediscovery projects and is a frequent speaker on ediscovery and legal technology.
James Sherer is counsel at BakerHostetler in New York City. He is a litigator with a focus on e-discovery, data privacy, data security, and information governance matters. With an eye on new technologies, he stays abreast of the changing industry and how it can affect his clients’ businesses, as well as his own practice of law. Utilizing his litigation experience, as well as his graduate degree and time spent in-house, Sherer provides his clients with comprehensive and confident representation. Sherer is also the co-chair of BakerHostetler’s Information Governance Team.
Special thanks to our sponsor, Kroll Ontrack.
The ESI Report: 2015 Trade Shows and Trends in E-Discovery – 3/30/2015
Michele Lange: Hi, I’m Michele Lange and welcome to the ESI Report. There are a few things this time of year that remind us of Spring approaching. One that everyone can relate to is daylight savings time as we spring forward for more daylight. But for those of us in the e-discovery industry, this time of year is also marked by all of the trade shows and conferences that are springing up. Have you been to any e-discovery recently? What are some of the e-discovery themes you have been noticing at these various conferences CLE’s and trade shows? Joining me today for our discussion are Eric Robinson and James Sherer, two experts in the field of e-discovery. Eric Robinson is a solution architect for Kroll Ontrack. He has more than 20 years of experience in litigation, legal consulting, and project management. He regularly advises clients on e-discovery matters in corporate audits, investigations, formal litigation and regulatory matters. He is an expert in large, complex, multi-party ediscovery projects and is a frequent speaker on e-discovery and legal technology. James Sherer is counsel at BakerHostetler in New York City. He is a litigator with a focus on e-discovery, data privacy, data security, and information governance matters. With an eye on new technologies, he stays abreast of the changing industry and how it can affect his clients’ businesses, and his own practice of law. James is the co-chair of BakerHostetler’s Information Governance Team. Eric and James, thank you so much for joining me today on the ESI Report.
James Sherer: Michele, thanks for having me, it’s a pleasure to be here.
Eric Robinson: Yes, I’m happy to be here, Michele.
Michele Lange: So let’s get us started. James, you are involved with February’s JOLT symposium at the University of Richmond which focused on mobile devices and the wireless world – at least one panel, one aspect of that conference focused on that. Could you tell us a little bit about how you got involved with the JOLT conference and some of the general themes?
James Sherer: So we’ve been involved with JOLT for a little while. We worked on some scholarships for them on merger acquisition due diligence, which implicated among other things, e-discovery considerations, when you’re involved with an M&A deal and due diligence in these real big sets of data. So it wasn’t just e-discovery but also big data, information governance, data privacy, data security. We started speaking with JOLT about that and they said okay, well we’ve got this symposium coming up and here we really are focused on a lot of the mobile technologies that are being involved with this type of practice. And we can see some application here but what we’re really looking for is a number of different facets on bring your own device and the world at large. We took this as an opportunity to start doing some investigation about bring your own device considerations that you might have if you’re multinational, or if you’ve got employees that cross borders. And then some of the e-discovery implications associated from that. How do you collect from those devices, how do you get good advice. How do you get good advice, how can you get consistent advice if you’ve got employees doing what they want to do that’s going to support the business but without doing it in a consistent manner. And that was the genesis of our panel and our presentation.
Michele Lange: So, Eric, perhaps you could give a little advice in talking with clients about what they’re seeing when it comes to mobile and social e-discovery best practices.
Eric Robinson: Well, sure. So this is, as we’ve all experienced in an evolving area, it has given a proliferation of mobile devices in the workplace. It is still surprising, sometimes, to walk into a situation and have people not really still thinking about that they’ve got to be aware of these other sources of data. And that they do have under the current rules and under the pending rules as well, an obligation to preserve data in a way that if they do need to go after it that it is usable. So it’s been an interesting discussion and I think companies are becoming more aware. And some of the e-discovery conversations are actually growing out of policies around bringing your own device and things of that nature, which complicates things too, because that raises the bar of privacy when you’re intermingling your private information with your business information. But it is an interesting conversation and I think it’s one that will continue to evolve as companies vacillate between these bring your own device policies and issuing devices to their employees. And the statement’s true for the social media elements. A lot of times, social media sites that companies are using are – I don’t want to use the term neglected – but they’re temporarily forgotten when it comes to the exercises in discovery and preservation. So it is those areas where there’s been a lot of discussion about, but we’re still seeing a fair amount on a learning curve of how to approach those types of data sources when it’s involved in litigation and investigatory matters.
Michele Lange: So building upon that, JOLT, the Journal of Law & Technology from the University of Richmond, that that isn’t the only speaking event, James, that you’ve done this Spring already. Talk to me a little bit about Legaltech New York, which is really the superbowl of the e-discovery world in the terms of conferences and tradeshows. You spoke on a Legaltech New York panel and what did you talk about and what were some of the key themes that emerged that you saw?
James Sherer: So our panel was on artificial intelligence and its application in current and future practices. And again, not just in e-discovery, but really in the practice of law generally. When we were looking at this topic and when we were talking about the actual practice and how things were changing and specifically in the e-discovery world, we talked about technologies and how your interaction with data and your interaction with devices is just changing. So JOLT touches on this, a lot of Legaltech touched on it, and a number of other conferences including Sedona and Georgetown are really focusing on this now, which is we’re trailing users. We’re trying to follow what users are doing with the technologies, and then in some instances, rushing to keep up and catch up. So we see different uses of mobile devices and how different your use of a mobile device is, based on whether or not you have connectivity. In the past, you think of your computer as a discrete device, sitting on your desktop, maybe a laptop, and that carried with it a history of your interactions with your data and is a repository of your data – except for things that might be server side. Now with a renewed interest in thin clients, you’ve got information stored up in the Cloud or that enterprise environment. You’ve got phones that really are just these conduits of information if you’re interacting with services up in the Cloud or on the internet. You’ve got different types of social media interactions. The names of which we were working on, some of our paper and our work – I didn’t know, I was learning as I went. And I was wary and didn’t go ahead and try a lot of the technologies for fear of what would happen. But as you see, different users use different technologies, different platforms, different types of softwares for different purposes and trying to knit that back together in some kind of narrative for a case or of showing how you’ve got defensible e-discovery collection and preservation processes is just an evolving challenge. And it remains one and we looked at it and said okay, in the first instance, we really have to go back to the first instance here and say what does the user do; we have to ask the user. There’s a real difficulty in trying to apply one size fits all process or standard or even question to users without getting into the meat and the heart of what they really do with their devices, both for work and personal instances and how that information kept, if it’s saved, if it’s changed or transmogrified, whatever happens to it, we have to be part of that discussion and then do some of our own due diligence. Secondly, we looked at how then can we look at the forefront of some of these practices. How can we look at artificial intelligence and some of the work that’s being done in other cases within advancing technology and say okay, well how is this going to impact our practice of law. How is this going to impact our staff development? How can it help us when we try to develop the case and get to the point and the heart of this practice, which isn’t just to undertake e-discovery measures, but it’s to win a case. We pulled together a number of different advances within the technology and my personal favorite in the presentation was something called the A* algorithm, which is really a path finding algorithm. When you look and say, as opposed to how the crow flies, we know we want to get from point A to point B, which might be a literal point A to point B in the case of GPS in car systems, or the idea of making it from point A, which is your supposition, to point B, any kind of conclusion in making your case. So we examined that, we presented to our panel, and then subsequently presented to the audience. After the fact, I met up with some people who had been active participants during the panel in the audience, and one said A* was great, we really liked that you mentioned that. And the other said well, I don’t know; I don’t know if A* is really an artificial intelligence application. And the other said no, no, it really was, and I stepped back and I was excited to have created some dialogue; even though I quickly lost track of the conversation as they went into some really esoteric things.
Michele Lange: Sounds like it was an interesting dialogue that came out of a very interesting panel that you were able to participate on. Eric, you also attending Legaltech New York this year. Perhaps you can talk about some of the prominent themes that you saw emerge from the tradeshow stepping back, and then what were service providers, attendees, lawyers, litigation support paralegals, technology folks talking about at a macro level?
Eric Robinson: Well, at a macro level, I think information governance was in the forefront of conversation. But when we’re talking specifically about e-discovery, I think predictive coding is another area, and when you started talking about different types of technologies and things like that, and I think this all plays into it about where the industry is going and how technology is evolving. But looking at it at a macro level, it’s really about how current processes can be maximized and efficiencies can be gained. And i think that was true whether the conversation was with individuals coming from a law firm environment or individuals coming from a corporate legal or risk management and compliance environment is that this continued push towards efficiencies of process and best practices was a common theme among the conversations that I was taking a part in as well as that I was overhearing and things that I was seeing at the show itself.
Michele Lange: So, James, did you also notice a significant information governance theme and perhaps even broadening that even more to data privacy and data breach at Legaltech New York and what were some of your observations?
James Sherer: Yeah, i had the opportunity to attend some of those panels and speak with some of those practitioners. What stood out to me as being a central theme was this difference between the say in everything mentality where you assume that because storage is cheap, and because it’s easier just to let things be saved now as opposed to actively managing it, that maybe that’s the default and maybe that’s the inevitable course of progress. Now contrary to that, those of us that are still working and trying to help clients with information governance policies and strategies to deal with this information, we look at that and say yeah, that’s the easier, and it can be the default. But it turns with it some true risk and we saw some of that come home to rue this past Fall. So some of the bigger data breach cases that made the news, you’ve got instances within those of different things happening on the employee by employee levels. It’s not just a matter of enterprise considerations when it came to storage or how you kept things, but individuals who save things, who may have taken information or decades of email, in some instances, from one organization to another. And when you do that, and then if that information is subsequently breached, these are these hypotheticals you look at and say, can these things really happen, what do you do if they do happen, wouldn’t practices be better. In the first instance to deal with that as opposed to letting just everything ride and pretending that open kimono is going to be the best way to go.
Michele Lange: Eric, perhaps you could wrap it up for us with general perceptions. We’re sitting here in the early Spring of 2015, and as you look ahead for the next 3, 6, 9 months as we wrap up 2015 9 months from now. What do you think will be the significant themes and trends that are continued to be discussed at upcoming conferences, trade shows and the like that are ahead throughout the Spring and the rest of the Summer?
Eric Robinson: Yeah, I think as we look forward to 2015, we’re looking at potentially some changes in approaches to preservation and things like that with the implementation of the new amended rules that will go into effect at the end of the year. But we’re already seeing an anticipation of that, organizations – whether they be law firms or corporations – starting to change the way they think a little bit about how the new rules may impact current processes and procedures. So I think that’s one area and the impact of those rules still remains to be seen because how they’re going to be interpreted and how they’re going to be applied. I think still there’s room for interpretation there, and we’re going to have to wait and see how that plays out. But that is an area of conversation as we move forward throughout the year. I also think we’re going to continue to see a greater interest and expansion of use in predictive coding and technology assisted review in general as organizations are looking to better manage bigger volumes. And then also looking at as we’ve talked about the rules as how the courts are going to deal with sanctions with respect to failure to meet discovery obligations. And things like legal holes, which was another area that was not as prominent as maybe some of the juicier aspects of e-discovery but how legal holes are being implemented and best practices as well.
Michele Lange: James, perhaps you could take us home with one final question regarding what conferences are you excited about coming up this Spring and Summer and what do you think some of the prominent themes coming out of those conferences that you’re excited about, what should people keep an eye on?
James Sherer: The international cross-border issues are certainly continuing to be of interest, and as multinationals are dealing with bring your own device considerations and looking at either determining whether or not they’re going to maintain or pull back devices to make sure they have additional control, or if they say okay, this is inevitable, we want our employees to be happy and healthy and to work harder, therefore we’ve got to support them in a way that’s going to get business done as they see fit. How do we react to this? What are going to be the best practices, what can we do to support our employees while still doing what we need to do both here in the states and abroad. So Sedona’s Working Group 6 has a conference in Hong Kong this year. They’re going to be focusing on that pacific rim area, where we’ve seen a lot of dialogue surrounding Europe and those environments, and we’re just now starting to get into these other markets where because of the operations of the organizations, the practitioners are either running to catch up, or we’re starting to see what other people have been doing and we can work off of those practices in that way.
Michele Lange: We’ll wrap it right there. Eric and James, thank you so much for joining me on the ESI Report.
Eric Robinson: Thanks very much.
James Sherer: Thank you, it’s been a pleasure.
Michele Lange: So that wraps up another edition of the ESI Report. Thank you to everyone who’s listening and thanks to Kroll Ontrack for sponsoring the show. If you want to make sure you are in the e-discovery know, make sure you check out the e-discovery blog, TheEDiscoveryblog.com. You’ll find all the latest and greatest e-discovery news. Until next time, I’m Michele Lange, signing off for the ESI Report.