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Welcome to the official blog of the Association of Certified eDiscovery Specialists! Tune in for weekly articles on eDiscovery news, interviews and highlights with industry thought leaders and eDiscovery specialists working in the field, and other happenings in the legal world.

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An All Day, Coast to Coast Celebration: ACEDS E-Discovery Day Recap

Posted By Jim Gill, Wednesday, December 6, 2017
Updated: Wednesday, December 6, 2017

It seemed like almost everyone who is involved in the world of e-discovery was celebrating on December 1st. The third annual E-Discovery Day was bigger than ever this year - according to fellow E-Discovery Day sponsor and ACEDS affiliate Exterro, “12 sponsoring organizations hosted 13 separate live events, with over 370 attendees, in 7 States plus the District of Columbia. More than 2000 virtual participants listened to 14 hours of news, analysis, practical tips, and advice presented by 39 e-discovery experts in 15 webcasts.”

And ACEDS was right there doing our part. ACEDS Executive Director, Mary Mack, participated on webinars as a speaker, moderator, or panelist from dawn till dusk, closing out the day with Top 5 E-Discovery Process Improvements Legal Needs to Make (But haven’t made yet…) - the most well attended event according webinar co-sponsor Exterro. This roundtable discussion featured William Hamilton, Director, UF Law; Hon. John Facciola (Ret.), US Magistrate Judge, D.C.; and Mary Mack, these experts, who are not only e-discovery teachers but have also navigated complex e-discovery projects, weighed in on what 5 e-discovery process improvements legal teams need to make to start seeing real results.

When asked what some of the biggest obstacles legal teams are facing when it comes to process improvements, two main themes arose: the lack of focus on understanding e-discovery, and because of this, the inability to match team members’ skills with specific tasks. As Judge Facciola said, “most [obstacles] come from attorneys not knowing how delegate the handling of a matter. They either need to truly understand it or give the jobs to someone who does. And at the same time, there are too many young attorneys not getting guidance from their superiors.”

William Hamilton supported this by saying, “law firms have a peculiar culture, similar to corporate settings, where there’s a lack of structure around e-discovery. Even within the same law firm, you’ll have attorneys with different levels of expertise regarding e-discovery.”

In another ACEDS sponsored webinar, 5 Critical Cyber Security Updates for Firms and Corporations in 2018, a similar theme of understanding and taking the steps towards competency, only this time on the cyber security side of things. Roy Zur, Intelligence Expert and CEO of Cybint (a fellow BARBRI company), explored the upcoming security trends for 2018 and what companies should do to prepare for new threats and intrusions. Roy Zur covered all the different types of threats and attacks in one of the clearest ways I’ve ever heard, next he went into the Dark Web – what it is, how it’s used – and then prevention, detection, and best practices for minimizing risk. It’s more important than ever for law firms to protect themselves. “Mainly it was financial markets and government and big retailers” Mr. Zur said of targets of cyber-attacks, “but now there are increased attacks on law firms, because a firm is a hub for a lot of confidential information, serving many companies.” 

There were other events around the country with ACEDS chapters and affiliates as well. The ACEDS Philadelphia Chapter put together the largest gathering of e-discovery professionals in Philadelphia with ILTA, ARMA Liberty Bell Chapter, and Women in eDiscovery Philadelphia Chapter. Exterro sponsored the event, which focused on the topic of “The good, the bad and the ugly of ISO 27050-3 - Code of practice for electronic discovery.”

The Twin Cities ACEDS chapter and Mary Mack hosted a panel discussion regarding the appropriate disposition of client data: “The Case is Done but the Data’s Still Everywhere. What’s a Client to Do?” For many clients this can be the biggest headache, so this webinar looked at considerations when looking at the security of data once that data gets to law firms and providers; what measures should be taken to protect data held by those organizations, and how to vet those measures; and, how should the client ensure appropriate disposition of data by their law firms and vendors at the end of a matter.

And finally, Mary was at it again, this time with LTPI Chairman and President, Eric P. Mandel, and three of the Discovery Data Governance Model co-authors, Quintin Gregor, Kevin Clark and Seth Eichenholtz, to discuss explore the state of the industry, and to examine LTPI’s DDG project, as well as the ACEDS / LTPI relationship.

Other ACEDS chapters had gatherings around the country as well: The New England ACEDS chapter kicked things off with a breakfast roundtable discussion, while our friends in Florida were celebrating E-Discovery Day with the Jacksonville and South Florida chapters both had educational and networking events. There was also a New York City networking event sponsored by LTPI, ACEDS, WIE, and Exterro. There was even an ACEDS hosted E-Discovery Day Twitter chat (click here for highlights). 

It’s easy to see why E-Discovery Day has become the year-end event for the industry, and we’re already looking forward to next year’s celebration!

Tags:  e-discovery  e-discovery day  legal processes 

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Worst Nightmare: Court Uses 502 to Compel a Sneak Peek of Privileged Docs

Posted By Jim Gill, Wednesday, December 6, 2017
Updated: Wednesday, December 6, 2017

Court of Federal Claims Judge, Margaret Sweeney, who presides over Government litigation regarding oversight of financial institutions, has issued another opinion on attorney client privilege, this time distinguishing Federal Rule of Evidence 502(d). In the most recent status report in the case, Fairholme Funds, Inc. v. United States, No. 13-456C, 2017 WL 4768385 (Fed. Cl. Oct. 23, 2017), the defendant produced an additional 3500 documents in response to an earlier order by the court, but in so doing, produced 38 documents that were privileged, then after a review of those, then produced another 22 additional documents. The plaintiff asked to use the quick peek procedure under Rule 502(d), to which the defendant disagreed.

Judge Sweeney, clearly frustrated by lack of cooperation, fashioned a remedy to move the case forward on jurisdictional discovery as a way to bring the long running case to a merits determination.

Judge Sweeney required the defendant, among other things, to:

  • Provide plaintiffs with the opportunity to review the approximately 1500 documents at issue—which are currently being withheld by defendant as privileged pursuant to the deliberative process and bank examination privileges—at a time and place to be determined by defendant.  In so doing, defendant shall not be deemed to have waived any privileges as to these documents.

Judge Sweeney also rejected Sedona’s comment disarming 502’s use as a weapon:

  • [FRE] 502(d) does not authorize a court to require parties to engage in ‘quick peek’ … productions and should not be used directly or indirectly to do so. … Rule 502 was designed to protect producing parties, not to be used as a weapon impeding a producing parties’ right to protect privileged material. Compelled disclosure of privileged information, even with a right to later claw back the information, forces a producing party to ring a bell that cannot be un-rung.

This case may be distinguished due to the comingling of confidentiality into the privilege designation and FRE 502’s focus on privilege protection, the resources of the court anticipating an in-camera review and the Judge’s lack of patience with the producing party.

K&L Gates discusses the case, and provides a direct link to the opinion here.

Tags:  Case Law  FRE 502  Judge Margaret Sweeney  Quick Peek 

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Library? What’s a Library? The Growing Need for Legal Information Specialists & Continuing Legal Education

Posted By Jim Gill, Tuesday, November 28, 2017

When I taught research as a writing professor, I would regale students of the olden days when I’d work in the government documents repository at my university’s library; tales of checking microfiche into a paper spreadsheet and Bates stamping their sleeves before sending them into the stacks; of the time I literally measured the length of the cards in the card catalog, so that I could more effectively space them out in the drawers; or how there were specialty resources for particular areas of study, the giant Standard & Poor’s books that business students were always asking for, or the single computer terminal marked Lexus/Nexus that only law students would visit.

It might be easy to think, “Who still uses a library?” but they are alive and well, particularly in the legal industry.

Recently, the American Association of Law Libraries published its 13th Annual Salary Survey, a comprehensive overview of comparative salary information for legal information professionals. For years, people have been saying that the need for librarians is obsolete as we move at lightning speed through the digital landscape. But, according to the AALL, the need for legal information specialists remains steady, even growing in some instances, despite changes in law firm staffing structures and declining law school enrollment. While everyone has made the switch to digital libraries? over the past ten years, the survey shows that “law firms spend on average three times more than academic libraries” when it comes to digital resources.

The need for information and knowledge will never go away, regardless of the medium (print, digital, conference panels) or the repository (library, law firm, internet). The benefit of living in the information age, is that we have so much available to us at any given moment that it’s not hard to seek out the best minds in any given field to see what they’re saying about the latest trends or best practices.

E-Discovery, of course, is no different. In fact, Friday, December 1st, is E-Discovery Day, an industry-wide event with 15 scheduled webcasts, as well as in-person gatherings across multiple time-zones. Some of the featured speakers include:

  •  Craig Ball, Esq.
  • Hon. Michelle Childs, US District Judge, South Carolina
  • Ralph Losey, Esq
  • Hon. Joy Conti, Chief District Judge, Pennsylvania
  • George Socha, Esq., Co-Founder, EDRM
  • Hon. David Waxse, US Magistrate Judge, District of Kansas
  • Maura Grossman, Research Professor, University of Waterloo
  • Sr. Master Steven Whitaker (Ret.), Courts of England & Wales, Queen’s Bench Division
  • Hon. Andrew Peck, US Magistrate Judge, Southern District of New York
  • Roy Zur, CEO, Cybint Solutions (a fellow Barbri company)
  • And our own Mary Mack, Executive Director of ACEDS

 ACEDS is also one of the sponsors for E-Discovery Day and was a part of four of the scheduled webinars. I think it’s easy to see that all the day’s happenings covered interesting and useful topics for anyone working in e-discovery and data management. Or as Mary Mack, ACEDS’ Executive Director puts it, "There are so many great webinars and events this year for E-Discovery Day.  I'll be looking for the archives!"

For a full list of events and webinars, go to www.ediscoveryday.com.

Tags:  aall  american association of law libraries  cle  continuing legal education  e-discovery day 

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Data, Data, Everywhere: Critical Cyber Security Updates for 2018

Posted By Jim Gill, Monday, November 20, 2017

In a recent NPR podcast entitled, “Your Cell Phone’s A Snitch,” we hear a story which,  in many ways, is old news. They share talk about a string of armed robberies in Detroit in 2010, and how the police and FBI began collecting data from a suspect’s cell phone carrier, so they could build a clear and detailed understanding of his life: “where he went and when, which Sundays he skipped out on church, and which nights he decided to sleep somewhere other than his own house.”

In the end, the suspect, Timothy Carpenter, received 116 years in prison after authorities compiled data from four months of surveillance; all of it without a warrant. Case closed. Now it has resurfaced and has led to a Supreme Court hearing , which will determine if this type of warrantless search and seizure of cell phone records are in violation of the Fourth Amendment. .

Tracking electronic data for use as evidence has become a daily occurrence. According to NPR, cell phone carriers receive 10,000 requests per year,  such as the one in the Carpenter case. . With this normalcy, many of us have accepted the Orwellian logic that comes with our digital world: that you remain anonymous if you go with the crowd; that if you’re innocent, you have nothing to hide. While most of us aren’t going to give up our smartphones and go off the grid -- because let’s face it, digital devices have revolutionized the way we do pretty much everything, often for the better – it’s important to have a clear understanding of how to protect your data; especially for corporations.

In the same way that digital evidence catching criminals has become old news (Can you believe HBO’s The Wire is over ten years old?), data breaches with large banks, corporations, and government agencies have also become just another part of the news cycle. That’s why, moving into the new year, Chief Information and Security Officers should  be keeping up to date with the latest strategies in the field.

On December 1st, as part of E-Discovery Day, ACEDS sponsored a free webinar: 5 Critical Cyber Security Updates for Firms and Corporations in 2018, presented by Roy Zur, Cyber Security and Intelligence Expert at Cybint, a BARBRI company.  In this webinar, Roy explores the upcoming security trends for 2018 and what your company should do to prepare for new threats and intrusions. 

This webinar gives you an introduction to:

  • Trends in cybercrime and attacks - what you should expect to happen to your firm
  • Dark Web 101 - your confidential information may already be out there
  • Prevention and detection - best practices for minimizing risk
  • Cyber plan - from training and education to planning and preparing
  • Leveraging the intelligence on the Web to proactively approach due diligence, and litigation

In the same way that cybercommerce ushered in a whole new way of conducting business, the cybercrime that comes with it requires a whole new approach to security. With the constantly changing data landscape, it’s important to be on the leading edge.

 

Tags:  ACEDS  cyber security  Cybint  legal technology  Roy Zur  Supreme Court 

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The Internet-of-Things May be New, but the Legal Processes Remain the Same

Posted By Jim Gill, Tuesday, November 14, 2017

Just when eDiscovery specialists have gotten a handle on the more common forms of Electronically Stored Information (ESI), and have begun adapting to the newer data types such as cloud and app based messaging platforms, along comes the Internet-of-Things.

One might ask, “What things?” Hasn’t the internet always been about things? Well in this case, ESI isn’t created by traditional (or more recent for that matter) devices such as a desktop or laptop computer, smartphone or tablet, but instead is created by a “thing” – refrigerators, cars, Fitbits, home management devices, doorbells, you name it. All of these can now create data which can be used as evidence during litigation.

Tom O’Connor, Director, Gulf Coast Legal Tech Center, recently wrote an article for Advanced Discovery about how the IoT is affecting the eDiscovery landscape. In it, he gives a brief history of the Internet of Things as related to the legal world, and through that we see that it’s actually been lurking around for almost a decade, but not until more recently are eDiscovery teams getting on board with the need to preserve, collect, and review this type of data. For example, Tom mentions how the data from an airbag was used during a trial regarding a car accident in the British courts back in 2008. And in 2011 in Massachusetts, another car’s “black box” data was used in court.

More recently, when writing for our affiliate, Exterro, I’ve addressed different murder cases – one where the data from a victim’s FitBit was used; in the other case, data was requested from the home’s Amazon Echo to see if it had recording anything during the time of the murder (ACEDS addressed the Alexa case in Canada and Craig Ball exposed the data collected by this talkative IOT device). And on the civil side of litigation, there was the case where the Boston Red Sox were caught using Apple watches to steal signs from the Yankees.

So how can legal teams prepare for this? Tom O’Connor suggests five steps:

  •  Know the Facts
  • Know the People
  • Make Early Case Analysis Part of Every Case
  • Validate Current Data from Past Results
  • Collaborate

As Tom states, “Engaging in these five steps will enable litigators to collect all the necessary information to evaluate exposure, assess risk, make recommendations to clients, and set case strategies, including a budget and possible settlement options.”

New data types are always changing, but the processes remain the same. This is where continued legal technology training becomes useful. Someone who knows the law and the steps that need to be taken during Someone who knows the law and the steps that need to be taken during discovery -- the most expensive and time-consuming part of litigation -- as well as understands the different types of ESI and how they can be collected, is going to be successful in eDiscovery.

Tags:  ACEDS  E-Discovery  ESI  Internet of Things  Tom O'Connor 

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You Don’t Have to Reinvent the Wheel Just to Place a Legal Hold

Posted By Jim Gill, Monday, November 13, 2017
Updated: Tuesday, November 14, 2017

We’ve all done it: when accomplishing some task that we take for granted -- like cooking a meal or driving to work or even tying your shoe – we start thinking about the fact that someone along the line had to figure it all out, after what must have been an enormous amount of trial and error. And then they had to explain how and why this way of doing things is much more effective and efficient than whatever old way people were doing before that.

 

What’s interesting is that we also know how stubborn we can be about adopting new ways of doing things (I know I am!), even when someone explains a better way. And it’s understandable – we like what we know works, even if it potentially might take longer or require extra steps, at least it has a known outcome (This may be especially true in the legal world, where attorneys and other professionals are naturally risk averse). I also think we’re hesitant, because we second guess our ability to learn a new way of doing things, particularly after we’ve already mastered another.

 

Well, eDiscovery is no different. Just like everything else, the processes that legal teams use to carry out their duties had to be learned through education and on the job trial and error. But that doesn’t mean that you have to go through the same.

 

On December 1st, we’ll be celebrating E-Discovery Day, an industry-wide event that brings together some of the leading voices in eDiscovery for a day of education and knowledge sharing. And you won’t want to miss the ACEDS / Exterro sponsored webinar: Top 5 E-Discovery Process Improvements Legal Needs to Make (But haven’t made yet…)In this roundtable discussion, learn from three e-discovery experts (William Hamilton, Director, UF Law; Hon. John Facciola, Ret. US Magistrate Judge, D.C.; and, Mary Mack, Director, ACEDS), who are not only e-discovery teachers but also have navigated complex e-discovery projects, on what 5 eDiscovery process improvements legal teams must make to start seeing real results.

 

Plus, you don’t have to stop there -- The day is full of webinars from other organizations!

 

 Remember, it’s always good to check out what other people are doing in your field – they just may have stumbled over something that will make your life a lot easier.

 

 

 

Tags:  ACEDS  ediscovery  e-discovery day  Exterro  legal education  webinar 

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Bringing E-Discovery In-House Makes Perfect Sense! (But only if you invest in training and tools)

Posted By Jim Gill, Wednesday, November 8, 2017
People like doing things themselves: it gives them more control on timelines, outcomes, and costs. And if you can get that without sacrificing quality, then it’s a no brainer. But a successful DIY project takes more than just saying, “I can do that!” For me, a great example of this is when, several years ago, I converted an attached garage in my house to four new rooms, including a second bathroom. I’d had experience framing, working with drywall, and wiring, and felt confident in taking care of those things. I’d also done a little plumbing, but honestly it was not my favorite undertaking. So, I told myself, I’ll do everything but the plumbing. But as I was working, I kept thinking, I don’t want to deal with finding a contractor, scheduling the time to do it, and paying someone for something I knew I could do myself if I just took the time to study the processes and get the proper tools.

So that’s what I did, and when everything was finally in place – it didn’t work perfectly; but, after sticking with it, reviewing the steps and making a few adjustments and tweaks, it did.

A similar thing has been happening in the past few years in eDiscovery – more and more corporate legal teams are bringing services in house. But the reality of this undertaking becomes clearer as more and more people do it, which is evidenced by the 2017 In-House Legal Benchmarking Report, sponsored by EDRM/Duke Law, Exterro, and BDO.

Legal Teams Are Happy Bringing Things In-House

According to the benchmarking report's results, over the past year, more than a third of respondents increased the amount of litigation services they did themselves. And when asked why, they most frequently responded that it was because they had built or expanded internal capacity, as well as acquired better software solutions, which allowed them to save money.

Technology!

When it comes to the technology being used by in-house legal teams, 46% of respondents use matter management software, 40% spreadsheets, 40% email, 25% legal project management software, and 11% generic project management software. Of those who responded to this question, 52% used just one of these approaches. 31% use two approaches, 12% use three, and just 5% use four different sets of tools.

Things Keep Changing

But as with all trends, this one won’t stay for long. In the next two years, 54% anticipate they will be using matter management software, 38% expect to be using legal project management software (a marked rise in this category from last year), spreadsheets will drop to 32% as will email, and generic project management software will hold on to last place with 12%.

Future Trends

Even with all of these changes, there is still work to be done: when asked to rank challenges managing legal and e-discovery projects, respondents ranked controlling costs as the biggest challenge, followed by completing tasks efficiently, visibility into the status of legal projects, and ensuring a defensible process.

George Socha's Take

As George Socha, Esq., Co-Founder of EDRM and Managing Director at BDO, states in his executive summary of the report, “Litigation services have come in-house, with the majority of respondents reporting they do over half their litigation work themselves. Generally, corporations are satisfied with the quality of work done internally, more so than with the work done by outsiders. For now, they are doing a lot with a little. They tend to deploy fairly small, dedicated workforces, ranging from a single person to maybe half a dozen people or more, but those people (along with other employees) tackle a lot….”

Conclusion

I think the focus on those “small dedicated workforces” is a key element to this, and really is part of the larger debate in the legal community – how do we do more for less? Of course, this is a discussion that’s been happening across areas of commerce, business, and government since the industrial revolution. As technology becomes more advanced, the need for highly trained professionals who know how to leverage that technology grows. Technology alone doesn’t solve problems. Neither does throwing more personnel into the fray without properly training them. And there’s no better example of this mix of emerging technology and specialized personnel than in eDiscovery.

So train up! If I can install a bathroom from scratch, then just think what a well-trained eDiscovery team can accomplish!

Tags:  2017 In-House Legal Benchmarking Report  ACEDS  EDRM  Exterro  George Socha  Legal Training 

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E-Discovery Continues to Open New Paths for Legal Professionals on a Non-Traditional Education Path

Posted By Jim Gill, Thursday, November 2, 2017
Updated: Thursday, November 2, 2017

At Relativity Fest ’17, held last week in Chicago, I attended a panel on the future of preparing legal professionals to stay effective in the fast-changing world of e-discovery. Our own Mary Mack sat on the panel, along with David Horrigan from Relativity, who moderated the session. Other panelists included Patrick Burke from Cardozo Law School; Wendy Collins Perdue, Dean of the University of Richmond School of Law; William Hamilton, Professor at the University of Florida School of Law; and Hon. Xavier Rodriguez, US District Judge and Professor at St. Mary’s Law school.

There was so much great discussion, it would be hard to give any single part justice in one post, but one that stood out to me was a story Patrick Burke told about his experiences working with students who may be on a more non-traditional educational path that one might find in the usual approach to work in the legal profession.

He told a fantastic story about a student who had served as a Marine in Afghanistan and was now working on a law degree. Traditionally, a student studying law might be told by advisers that his or her previous military experience (unless it was perhaps in law enforcement) wouldn’t necessarily add to their legal resumé.  When Patrick asked the student what he had done in the Military, it was related to data management / technology, which – when put in the context of eDiscovery – was exactly the kind of relevant experience that would add to his legal training.

It’s no surprise at this point that the legal profession is changing. With the rise of electronic evidence and the need for technological know-how due to trends in the legal world (not only with eDiscovery, but with legal project management, metrics tracking, AI, etc) the traditional training of attorneys and paralegals is shifting. There will always be a need for attorneys well versed in the foundations of law which has always been a part of legal education, but there is now the need for attorneys, paralegals, and litigation support specialists who also have a solid understanding of the role technology plays in today’s legal landscape.

Read more on how ACEDS can help you develop your training in eDiscovery here.

Tags:  ACEDS  Cardozo Law School  eDiscovery  legal education  relativity fest 

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Introducing the ACEDS eDiscovery Voice! A new blog for the Association of Certified eDiscovery Specialists

Posted By Jim Gill, Tuesday, October 31, 2017

Welcome to our new blog: ACEDS eDiscovery Voice!

For everyone who is a part of the ACEDS community, you can now turn to the eDiscovery Voice for articles around industry news, interviews and profiles of thought leaders and practitioners in the trenches, and updates about upcoming events and resources.

For the past two years, I’ve been managing the blog and content marketing for Exterro, and now I'm ready to continue my eDiscovery writing with ACEDS. For 16 years, I worked in higher education, teaching college writing and literature, so it feels like a bit of a return to my roots working with ACEDS and their amazing continuing education programs for eDiscovery specialists.

Be sure to subscribe to the blog so you don't miss a thing, and feel free to reach out if you have ideas for an article or interview or just simply to say hi – as always, we love hearing from our community!

Tags:  ACEDS  eDiscovery  legal education  legal technology 

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