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Data Lockdown: How In-Place Preservation is Changing the Preservation Game

Posted By ACEDS Staff, Thursday, February 22, 2018

Data Lockdown: How In-Place Preservation is Changing the Preservation Game
By Michele C.S. Lange

To collect or not to collect. That is the question.

In discovery, parties must be proportional with what they preserve and collect – avoiding over-collection of information that is not needed, but at the same time not missing something and risking spoliation.

An organization’s legal hold tools and processes are critical to strike this appropriate balance. Moreover, the technology in this area is quickly advancing, changing the preservation lifecycle in many organizations. In-place preservation platforms are an example of one such emerging option.

ACEDS recently hosted a webcast discussing what in-place preservation is and how legal teams are leveraging this type of technology to ensure defensible and efficient discovery collections. Webinar panelists included Mike Hamilton, Director of eDiscovery Programs at Exterro; Bobbi Basile, Managing Director at HBR Consulting; and Chris Sitter, Information Security Director of Forensic Technology at Juniper Networks.

When Preservation Goes Wrong
The webinar kicked off with panelists explaining what happens when preservation fails. Sitter enlightened listeners on the three most common causes of spoliation: not knowing where data is located, not considering automated deletion, and not acting fast enough. Sitter noted, “If you can do a rapid preservation, it often shows a good faith effort to meet discovery obligations.”

Basile reiterated the problem of uncontemplated data types, explaining that even though email and file share data make up the majority of most discovery collections, the obscure locations sometimes cause the most difficulties. The most tricky locations: data created under a “bring your own device” (BYOD) policy, audio recordings, and data in third party platforms. Basile commented, “These are areas where parties are simply not even thinking about preservation.”

To close the topic, moderator Hamilton conducted an audience poll on this topic asking, “Which way are you most afraid of spoliation?” The poll results did not surprise Sitter and Basile, with a majority of webinar attendees revealing that the most alarming spoliation scenario is when a custodian deletes or modifies data.

Pathways to Productive Preservation
Understandably, deskside spoliation is a top concern for IT and Legal teams charged with locking down data sources for litigation, regulatory matters, or internal investigations. However, most organizations do not have a seamless mechanism for making this happen. Effective legal hold processes involve technology that does not interfere with day-to-day business activities, a robust notification system to employees, and an administration process that controls each step.

Hamilton asked a second poll of audience members, “How do you preserve data for eDiscovery purposes at your organization?” Data collection was chosen by about forty-four percent of audience members, and self-preservation was chosen by approximately forty-two percent. Fourteen percent of attendees said that they suspend the data retention policies at their organizations in order to preserve data for eDiscovery.

Basile stated that these results, like the last poll, were not surprising. Many legal professionals are not familiar with the latest legal hold tools, such as in-place preservation technologies. There is also some confusion over the term, “in-place preservation” and what it actually means.

Understanding In-Place Preservation
Sitter explained that in-place preservation uses an automated script to retain data in place, such that the automated system takes the original documents and places them into a central store that does not allow modification in any way, including not changing metadata. The in-place preservation system permits the custodian to keep working on a copy of the document, providing for a seamless preservation and collection method for discovery. In addition, in-place preservation technology can be used for compliance or tax purposes as well.

“This is the way of the future; locking down a file in-place without actually collecting the file,” expounded Basile. “We are at a tipping point where organizations are closely looking at new ways such as this to manage collection and preservation obligations and really move the needle on discovery costs.”

However, because in-place preservation is so easy to implement, there is a risk of casting too wide of a net. Sitter cautioned, “Because it is so easy, you have to be careful to not over-preserve. Also, you cannot forget to release the holds once they are set up.” Further, in setting up holds, legal teams need to still analyze whether the information is relevant and proportional to the matter. Another risk is preserving private or confidential data. Sitter explained a method of harmonizing the in-place preservation tool with an anonymization technology that can support the “right to be forgotten” required by General Data Protection Regulation (GDPR) or other privacy statutes.

In the end, panelists encouraged audience members to start researching the various platforms and learn their capabilities. Understand the types of data in your environment and look for tools that can support the in-place preservation of this data. Sitter cautioned, “Don’t make any assumptions. For example, most people think it’s impossible to do in-place preservation on a database, but there are systems that can do this.”

A recording of the webinar is available for ACEDS members at aceds.org.  

Michele C.S. Lange is a freelance writer and attorney based in Minneapolis, MN.  She has more than 15 years of experience in the legal technology industry and can be reached at mcs222@yahoo.com. Analysis by Michele Lange for ACEDS at www.aceds.org.

 

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Bold Thinking, Not Tinkering - What is the Hackathon's purpose?

Posted By Mary Mack, Thursday, February 22, 2018

Bold Thinking, Not Tinkering - What is the Hackathon's purpose?
By Mary Mack

The Hackathon brings together multiple streams of entrepreneurial activity (internationally) and taps into a global community of individuals and organizations with a passion for innovation via legal technology. Given that it is competitive, the goal for participants is not only to have fun, but to also win!

David Kinnear, incoming president of the NYC ACEDS chapter and founder of High Performance Counsel (@HipCounsel), was able to answer a few questions regarding the Hackathon:

Mary Mack: How does the mission of HPC align?
David Kinnear: HPC reflects the face and the voice of the modern legal industry - and where it is heading over the next ten years. Inherent in this position is the view that technology will become wholly intrinsic to law and the delivery of legal services. Telling the stories of legal innovation and the founders driving change - well, that's what we do. We're excited to learn what people are building - and we're excited to support the winners by providing exclusive VIP coverage on High Performance Counsel.

MM: Why is this relevant to the ACEDS community?
DK: Our own relationship with ACEDS reflects our view of ACEDS as being a cornerstone of the emerging, modern legal industry - harnessing the key elements of technology and people. We think ACEDS is uniquely positioned in its nexus to the growth of legal technology and its certification of professional competencies. For the modern legal professional, technology will become a much more vital part of day-to-day participation in the modern sector.

MM: How can the ACEDS community get involved?
DK: Follow our updates on Twitter (#GLH2018, #GlobalLegalHack), on LinkedIn and also postings on High Performance Counsel under: #BulletPoints (our market commentary). Our experience of ACEDS is that it is very proactive in providing great content and support for fellow CEDs so stay tuned and use this great organization to be informed. Professionally, this is a very important time for individuals to get informed and stay informed about the change and innovation that technology is bringing - both in terms of preparing for workplace changes and also in terms of the career opportunities it can represent.

MM: As a judge in NYC, what will you be looking for?
DK: "Bold thinking - not tinkering." Yes, we will be writing about that on High Performance Counsel! I'm interested to see ideas and concepts that do indeed have practical application, but they are (much) more than "just another layer" on old thinking and old workflow models. I am particularly interested in the digitization and productization of law - a concept which remains painfully early still but that (I think) will have huge revenue implications for service providers.


John Tredennick, Founder and Chief Evangelist at Catalyst, was also able to share his thoughts on the Hackathon:

Mary Mack: What is the Hackathon's purpose?
John Tredennick: The goal is to bring together a lot of very smart developers, have them focus on legal problems and see what they can come up with to solve those problems.

MM: How does the mission of Catalyst align?
JT: Catalyst was formed to focus on legal problems, in this case the need to better manage the discovery process. We put together a lot of smart people who came up with our Insight Discovery Platform. We have succeeded because the platform does in fact help clients save on discovery costs and time.

MM: Why is this relevant to the ACEDS community?
JT: ACEDS has always been focused on helping legal professionals better manage litigation so it has a vested interested in a program like this

MM: As a judge in Denver, what will you be looking for?
JT: Innovative ideas that can actually work. To succeed, an idea has to be simple, the solution has to be easily managed and it has to provide at least a 30% benefit over existing options.

I am excited to see what the hackers come up with after a weekend of caffeine and intense focus on legal needs. My thanks to everyone involved. It will be an honor to participate and be a judge.

 

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No Love for the 2015 Discovery Amendments: Landry v. Swire Oilfield Services

Posted By ACEDS Staff, Wednesday, February 14, 2018
No Love for the 2015 Discovery Amendments: Landry v. Swire Oilfield Services
By Michele C.S. Lange

February is the month of love. Hearts, candy, and flowers. The hint of spring harkening. The enthusiasm of a new year upon us.

But for one federal court judge, the New Year brought no love. 

In early January 2018, Judge James Browning, from the district of New Mexico, issued an opinion reviling the 2015 Federal Rules of Civil Procedure (FRCP) amendments – the same amendments that most of our e-discovery community heralds. Why no love?

The opinion came in Landry v. Swire Oilfield Servs., No. CIV 16-0621 JB/LF (D.N.M. Jan. 3, 2018), a suit involving Fair Labor Standards Act claims by oilfield operators who assert they were not paid appropriate overtime and minimum wage rates. In discovery, the plaintiffs sought electronic payroll records controlled by a third-party payroll processor. Controversy arose when the Defendants produced 12,249 pages of payroll records in a PDF format, without labeling or indexing. The Plaintiffs objected, arguing that the documents were not produced in an electronically searchable format, just as they were kept in the usual course of business. The Defendants stated they were granted a one-time download of records into PDF files before their relationship with a third-party payroll processor ended. They further contended that they could no longer demand the information from the former payroll vendor, asserting that what they produced was in a “reasonably usable form” per FRCP 34.

Complex databases; access, custody and control; production format – all of the fixings for a significant discovery dispute. 

Many of you know what comes next: protracted motions, multiple hearings with the court, deadline extensions, drawn-out depositions. In fact, in one hearing, the court stated that sometimes “you have to do a little discovery to get discovery” and ordered deposition testimony to get to the bottom of the payroll database issues between the Defendants and their third-party processors.  

This “discovery about discovery” set the stage for Judge Browning’s January 3rd Order. In the Order, Judge Browning went deep into the annals of FRCP history, studying the scope of discovery language in Rules 26 and 34 dating back decades. His conclusion? Almost 20 years of FRCP amendments have narrowed the substantive scope of discovery and injected courts deeper into the discovery process. 

Towards the amendment drafters, he ridiculed, “Instead of being Aristotelian and trying to draft rules, the 2015 amendment drafters largely opted to make federal judges Plato's enlightened guardians. They have decided that no single general rule can adequately take into account the infinite number of possible permutations of different claims, defenses, parties, attorneys, resources of parties and attorneys, information asymmetries, amounts in controversy, availabilities of information by other means, and other factors.” 

He further expressed his frustration with the role of active judicial discovery management. “They have dropped all discovery disputes into judges' laps. The drafters have decided that this determination requires the individualized judgment of someone on the scene,” stated Judge Browning.

In discussing the process behind the 2015 FRCP amendment promulgation, Judge Browning hinted at the conservative biases of the drafters, resulting in amendments favoring corporate defendants. Highlighting a New Mexico article from January 2016, he wrote, “The Court shares some of the concerns with the new amendments being pro-business and giving corporations new tools to limit plaintiffs' discovery.” He went so far as questioning the benefits of the 2015 amendments, writing “…the Court is skeptical that the 2015 amendments will make a considerable difference in limiting discovery or cutting discovery costs.”

In the end, Judge Browning ordered the Defendants to produce the documents in the electronic format requested by the Plaintiffs. However, he also granted a couple of the Defendants' discovery motions, including a request for a one-week discovery deadline extension. In essence, despite the peevish (but thorough) Order, Judge Browning worked to find a bit of a balancing act between a corporation and the plaintiffs needing access to relevant information. 

If there is one thing that this 50+ page order illustrates, it’s this. E-discovery is messy. But, as ACEDS professionals, that’s probably nothing new to you. Difficult discovery scenarios bring out the dark side of both the FRCP and the judges charged with interpreting those rules. Yet, no amount of love for cooperation or proportionality – or any other favorite provisions of the 2015 amendments – can outweigh the reality that the efficacy of some of the rule changes remains to be seen.  
  
Michele C.S. Lange is a freelance writer and attorney based in Minneapolis, MN.  She has more than 15 years of experience in the legal technology industry and can be reached at mcs222@yahoo.com. Analysis by Michele Lange for ACEDS at www.aceds.org.
 

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After Panel Sponsored by UK ACEDS, Chris Dale Calls for Rules Reform

Posted By ACEDS Staff, Wednesday, February 14, 2018

HH Judge David Waksman joined Ed Crosse of Simmons & Simmons, President of the London Solicitors Litigation Association, Tim Brown of RPC, and Caroline Field of Fox and Partners, for a robust discussion of proposed rule changes for England and Wales, with Vince Neicho of Integreon as the moderator.  The forum was organized by James MacGregor and the ACEDS UK Chapter, hosted by Clyde and Co, and sponsored by Inventus

Chris Dale’s eDisclosure Information Project blog has long chronicled the aspirations and practice of international eDiscovery and eDisclosure. Chris Dale was an active participant in the rule changes as a member of Senior Master Whitaker’s working party which drafted PD31B and the Electronic Documents Questionnaire, the subject of the proposed changes.  

Front loading of costs, particularly for smaller cases, education, competence and adoption were discussed, with a mandate to disclose adverse documents and to not obscure relevant documents with a data dump.

Chris Dale reports the current state of the process:


"With senior judges and the GC100 behind the idea of comprehensive change, and with a wide range of views considered, the working group set about drafting a new rule. Consultation closes at the end of February, and a pilot will be launched as soon as possible thereafter, perhaps by October 2018, for a two-year period in the Business and Property Courts in the Rolls Building in London and in Bristol, Cardiff, Birmingham, Manchester and Leeds."


Are the rule changes necessary?  After considering the panel discussion, Chris Dale’s opinion is that the rules need attention.  “Before the evening’s session, I would have said that we should leave well alone, educate some judges and tighten up the sanctions for defective disclosure. After it, I think I am persuaded that the present piecemeal rules and PDs should be replaced.”

ACEDS is grateful for the UK Chapter stewarding this important discussion, and for Chris Dale sharing his thoughtful critique and suggestions. Thank you to James MacGregor of Inventus and the UK Chapter for organizing, the hosts Clyde & Co, and Inventus for providing refreshments.

 

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Top 10 List: ACEDS Highlights from #Legalweek18

Posted By ACEDS Staff, Thursday, February 8, 2018
Top 10 List: ACEDS Highlights from #Legalweek18  
By Michele C.S. Lange

Each January, thousands of legal technologists gather in New York City to learn from peers, network with old and new colleagues, and let their hair down. Yes, another Legalweek (aka Legaltech) is behind us, and the ACEDS community was there for every step of the education and camaraderie.  

Whether you attended the conference or stayed back home, the Twitter posts helped ensure we didn’t miss a beat. Below is a top ten list of memorable ACEDS moments (and tweets) from #Legalweek18. Enjoy!

10.  The best swag: selfie lights. Kudos to the lucky few who snagged a selfie light, which ACEDS was handing out as its tradeshow swag this year. Who knew there was such thing as a selfie light? 

9. #eDiscoveryRockstar selfies. Legalweek #eDiscoveryRockstar selfies were all the rage across the ACEDS community, and Kaylee Walstad, ACEDS Director of Strategic Partnerships, captured dozens of tradeshow attendees as they walked the exhibitor floor.
 
8.  ACEDS around the world. Jan Scholtes and Annelore van der Lint from ZyLAB joined the Legalweek festivities, travelling from the Netherlands to represent the new ACEDS Benelux chapter. Jan and Annelore are two members of the Benelux ACEDS chapter board which is leading the first professional e-discovery community in the region. 

7. Chapter bonding, New York style. New York ACEDS members gathered for a chapter “meet and greet” as this chapter, and many others across the world, plan to increase activities in 2018.

6. Bloggers unite. Legal tech writers amassed for a bloggers lunch sponsored by Relativity and hosted by ACEDS. For many attendees (including myself), it was a chance to meet the faces behind the articles that show up in our inboxes each week. 

5. Merriment with Doug and Mary. Good food, fine drinks, and wonderful company. What more is needed after a long day of sessions? Doug Austin of CloudNine and ACEDS Executive Director Mary Mack were happy to accommodate anyone that made it over for happy hour at Ruth’s Chris Steak House

4. Education. Education. Education. Top-notch speakers with interesting commentary. Don’t miss a full recording of the session, “From AI to e-Discovery: Innovation in Legal and Technology Education” featuring David Horrigan, Relativity, Honorable Xavier Rodriguez, US District Judge (W.D. Tex.), Mary Mack, ACEDS, Daniel Martin Katz, IIT Chicago-Kent College of Law, William Hamilton, University of Florida Levin College of Law, and Laura Norris, Santa Clara University School of Law.

3. Back to the Future. ACEDS partnered with Thomson Reuters to host a judicial panel the night before Legalweek kicked off. ALM’s Rhys Dipshan summarized the panelists' candid dialogue, “Federal Judges: FRCP, Digital Evidence Laws Have Long Way to Go.” 

2. New CEDS members join the community. Certification is the best way to validate your e-discovery skills. New CEDS members showed up in full-force at Legalweek, proudly touting their freshly earned credentials. If you didn’t get your certification in time, make a 2018 resolution to get your CEDS. 

1. Start planning for next year. Mark your calendars for #Legalweek19, January 29-31, 2019. ACEDS hopes to see you there!

Keep the conversation going.  Join ACEDS for a TwitterChat on Friday, February 9th at 1pm EST. Use the hashtag #ACEDSTC to share pictures and stories from Legalweek18. 

Michele C.S. Lange is a freelance writer and attorney based in Minneapolis, MN.  She has more than 15 years of experience in the legal technology industry and can be reached at mcs222@yahoo.com.
 

Tags:  Legaltech  Legalweek 

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TAR Protocol Rules the Roost: In Re Broiler Chicken

Posted By ACEDS Staff, Thursday, February 8, 2018

TAR Protocol Rules the Roost: In Re Broiler Chicken
By Michele C.S. Lange

It is well established that courts will support parties electing to use technology assisted review (TAR) to identify responsive documents in discovery. However, TAR methodologies and quality control (QC) measures are still very grey for many judges and parties alike. What technologies are most appropriate for identifying the scope of the data universe? How do you sufficiently train the system to properly classify documents? How do you demonstrate that the review method adequately found everything? A new order assists in bringing clarity to this grey space surrounding TAR.

On January 3, 2018, Magistrate Judge Jeffrey Gilbert and Special Master Maura Grossman released a detailed search protocol in In Re Broiler Chicken Antitrust Litigation, a complex, document intensive class action currently pending in the Northern District of Illinois. From deduplication and email threading to sampling and recall, the Order covers an array of topics. And rest assured, Grossman adds in plenty of references to transparency, cooperation, and the importance of regular meet and confers.

This new Order will quickly gain momentum outside of chicken industry lawsuits. In your next e-discovery matter, take heed of the Broiler Chicken search and QC parameters to avoid ending up with egg on your face.

Background of the Case
In September 2016, a food service distributor filed a class action suit on behalf of purchasers of broiler chickens from more than a dozen of the country’s top poultry producers. The action alleged producers conspired to manipulate the supply of chicken to keep prices artificially high, driving up profits. 

In February 2017, the plaintiffs filed their first set of requests for production. As foreshadowed by Magistrate Judge Gilbert in a September 2017 discovery order, discovery in this case is likely to be complex and expensive, given 3 putative plaintiff classes, nearly 30 defendants, multiple theories of liability, and conduct covering nearly a decade in a $20-30 billion dollar industry. Perceiving potentially thorny ESI issues, in October 2017, Magistrate Judge Gilbert appointed Special Master Grossman to address and resolve disputes regarding e-discovery. Grossman wasted no time, issuing an Order in January 2018 outlining the document sourcing, search, and validation methods to be used by the parties.

Breakdown of the Order
Grossman begins the Order establishing that the parties will be reasonably transparent regarding the universe of documents collected for search, the search terms utilized, and the processes applied for TAR. Notably, throughout the Order, Grossman refers to this process as “TAR/CAL” (CAL signifying Continuous Active Learning) and never once uses the term “predictive coding."

Next, the Order addresses culling technologies that will be applied prior to searching. Laying this foundation ensures that processing details are clear, so there are no surprises in identifying the scope of documents selected for searching/TAR. Specifically:

  • De-Duplication: Data should be de-duplicated by hash value across all document custodians.
  • Email Threading: A producing party may choose to only include inclusive emails from a thread, but must disclose this to the receiving party.
  • Email Domains: If a party seeks to eliminate domains from a search, it will produce a list of those domain names to the opposing party.
  • Targeted Collections: Documents that are not going to be searched should not be used for search term testing.
  • Exception Reporting: The producing party must disclose processing exceptions.
  • Other Culling: The producing party must disclose other culling parameters if used.

The second section of the Order addresses search methods, dissecting this topic into two areas: TAR/CAL searching and keyword searching. If using TAR, Grossman requires the producing party to disclose the name of the software and vendor, how training will work, what categories of documents will be included and excluded, and what quality control measures will be taken. Similarly, the producing party must disclose comparable details about selected keyword search terms, including stop words, case sensitivity, metadata field searching, synonym searching, and misspellings, to name a few. In developing the processes for TAR and keyword searching, Grossman expects the parties to cooperate and work together in good faith to resolve any differences.

The third section of the Order is devoted to a document review validation protocol, which applies no matter TAR or “exhaustive manual review” is used. In detail, a QC sample is created, consisting of 500 responsive documents, 500 non-responsive documents as coded by a human reviewer, and 2,000 unreviewed documents as the result of TAR. These documents are combined into a blind validation set to be reviewed by a human subject matter expert (SME) in the case. From there, a table of each document and its coding will be prepared and provided to the receiving party and Special Master Grossman. The producing party must also provide copy of each responsive, non-produced document found in the sample, along with recall statistics. At this point, parties must meet and confer about the recall estimate, and the quantity and nature of the responsive documents identified through the sampling process to determine if the review is substantially complete. Grossman strongly warned parties about turning to the recall estimate percentage as the sole indicator of an adequate review. Obviously, if there is a dispute, Special Master Grossman can intercede.

Implications for E-Discovery Professionals
If there were any questions about the complexity of e-discovery, this Order lays those doubts to rest. In the coming days and months, this Order will likely be examined at length across our community, but here are three brief takeaways.

  1. E-Discovery does not occur in the dark. The sheer number of times that Grossman mentions meet and confers, cooperation, and transparency is awakening. Make friends with your opposing counsel and their e-discovery team because you will be talking to them regularly.
  2. TAR and keyword searching work together in tandem. Nowhere in the Order did Grossman mention either searching or TAR. It’s almost assumed that parties are using both these tools to their fullest capacities. Moreover, Broiler Chicken is not an outlier in requiring parties to leverage keyword searching and TAR. Recently, Judge Katherine Parker, in Winfield v. City of New York, 2017 U.S. Dist. LEXIS 194413 (S.D.N.Y. Nov. 27, 2017), encouraged the parties to go beyond mere keyword searching, especially when the parties cannot agree on search terms, and also utilize TAR. As e-discovery aficionado, Ralph Losey, explains, “The Broiler Chicken protocol urges parties to use what I call a ‘multimodal’ approach where human intelligence is paired with multiple technologies in forming a legal search. Parties should not rely on a single method.” In sum, savvy parties will know how to harmonize all the e-discovery tools available at their fingertips.
  3. Get smart on sampling and recall. Perhaps the clearest theme from this Order is the importance of validation. If a myriad of technologies are used to identify responsive documents, then QC is key. Parties better have someone on their e-discovery team that understands math more than just a little and is prepared to have meaningful discussions about recall to demonstrate that the search and review protocol was adequate. 

Michele C.S. Lange is a freelance writer and attorney based in Minneapolis, MN.  She has more than 15 years of experience in the legal technology industry and can be reached at mcs222@yahoo.com.

 

Tags:  TAR 

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Moving On: Embracing Job Change in the E-Discovery Industry

Posted By ACEDS Staff, Wednesday, January 24, 2018

Moving On: Embracing Job Change in the E-Discovery Industry
By: Michele C.S. Lange

The last time I looked for a job, I was in my 20’s. Gas cost less than $1.50 a gallon; George W. Bush was president; and no one binge-watched anything other than old Seinfeld episodes. I finished law school and had three job offers waiting for me. Being a bit adventurous, I decided to take the risky path and not practice law. I joined a tech company helping lawyers use software to find a needle in a haystack.

And that was 16 years ago – 16 challenging, fulfilling, and wonderful years in the e-discovery industry. In those years, I solved complex problems, built amazing tools, and helped clients navigate sticky situations. As career trajectories often go, now I find myself in transition, leaving my former employer and figuring out what’s next.

I know I am not alone in this transition. The e-discovery industry is anything but constant, and that includes the job landscape. Many of you have found yourselves in a similar place, voluntarily or involuntarily seeking your next career move.  

As I look to the future, I have learned that my most valuable asset from the last two decades is all of you. Those of you reading this blog; those of you I used to work with; and those of you at the conferences and tradeshows. The e-discovery community is just that – a community. I want to share what I have learned in this transition period, along with the wisdom of others who have travelled this same journey.

My hope is that these experiences help you pursue a new job now or in the future.

Six Tips for E-Discovery Career Changes

1. Hunt like it’s your job, but take time to smell the roses. Job hunting is my new job, so I treat it like a job. That means every single day I spend time in pursuit of my future. My new office is the kitchen table, and the dog is my new co-worker. I check email, reach out to people, troll LinkedIn, go out for lunch, make “to do” lists. Phil Favro, a Consultant at Driven, recommends, “Keep your name out there, diversify your skill set, pursue new certifications, and most importantly, keep your reputation intact.”

However, as many of you know, working in the e-discovery industry is fully immersive, leaving little time for outside interests. If you are in transition from one job to the next, now is the time to do something meaningful. Volunteering, freelancing, hobbies, travel, friends. From personal experience, elementary school teachers and pro bono lawyer networks are thrilled to hear you have some extra time on your hands, and without even asking, you will find yourself with a fulfilling volunteer role.

2. Become a story-teller. To find that next opportunity, you need to share your story. What you did previously, why you left (or are thinking about leaving), where you want to go next. In this transition phase, I have come to value the multitudes of people who have been willing to talk to me. It means the world to hear from people in your network. They will help you refine your story, brainstorm networking avenues, and build your confidence. 

Further, I have learned to be systematic about expanding my network. I keep a spreadsheet of everyone I talk to, what was said, who they refer me to, and the action items. Sometimes this means reaching out to people I have not talked to in 10+ years, asking a LinkedIn contact to make a referral for me, or cold-calling people I have never met. "As long as I have been networking, it still surprises me how truly small this world can be. When you are seeking a new opportunity, it is imperative that you talk to as many contacts as possible to leverage those relationships because you never know where those conversations will lead you. And, just as importantly, be helpful to those that are looking. Being able to connect a viable candidate to a company that needs a particular skill set will cement your relationships on both ends," noted Denise B. Bach, CEDS, Vice President of Enterprise Sales, Stroz Friedberg, an Aon company.

3. Add letters behind your name. During your career transition, whether you are still employed or seeking work, there is no better way to propel your career than to attain a certification. Most of these certifications require passing an examination, which will help validate your experiences. Also, the process of preparing for and taking an examination will help you stay relevant in a changing industry. In the e-discovery industry, this could mean achieving an association-based e-discovery certification, adding a platform or tool certification, or extending into an adjacent space with a privacy or security certification. “Initials after your name validate specific, usually technical, experience. You will share the initials and what it took to earn them with others, who become part of your community,” said Mary Mack, CEDS, CISSP, CAIM, Esq., Executive Director, ACEDS. “I found, as a woman (and an attorney) that questions about my technical competence stopped after earning my CISSP. The CEDS community is very generous with its members in transition, ready to make introductions, help with resumes, and generally support our job seekers.” 

4. Embrace headhunters. Staffing professionals are here to help you, but do your diligence. Ask people in your network which staffing companies they have used and ask for them to introduce you. “Having the right representation is more important than having just any representation,” says TRU founder and CEO, Jared Coseglia. “Something many candidates actively looking for a job do not realize is that once an agency sends your resume to a client, only they can represent you there for the next six to twelve months typically. So, choose your representation wisely, and make sure no one sends your resume anywhere without your express permission first.” Coseglia recommends asking these questions of any staffing agency:

  • What do you specialize in?
  • How often do you successfully place professionals with my profile? In my geography? In my industry vertical?
  • What separates your agency from others?
  • Are you reaching out to me for just a specific opportunity or will you have others like this?
  • Have you staffed for the company you are searching for in the past?

5. Look outside e-discovery. A former law school colleague said to me, “Stop being so timid in submitting applications.” He went on to enlighten me of a study showing that women only apply for jobs if they are 100% qualified, while men apply if they meet 60% of the criteria. I have learned to be bold in touting my experience, including looking for jobs outside of the e-discovery industry. “To become good at e-discovery, [it] requires a core level of knowledge, or even expertise, in many things, including computers, mobile devices, removable media, server systems, networking devices, cyber security, as well as organizational structures, business process and workflow and project management,” notes Eric P. Mandel, Vice President of Information Governance & Cyber Security Strategy at Ricoh USA. “All of this knowledge, and the skill sets that you develop while doing the job, are transferable into other roles in other areas.”

6. Get comfortable with uncomfort. Suppress your inner “type A” persona that tends to flock the e-discovery profession and learn to accept the present uncertainty. You will hear “no” a lot. Get okay with that and learn to move on quickly. “Use your situation as a chance to try something new. You may be rejected one, two, or even twenty times before the right opportunity comes along. Ask for feedback to help you better prepare for the next one," says Jackie Rosborough, Independent Consultant and Executive Director of Women in E-Discovery.

Michele C.S. Lange is a freelance writer and attorney based in Minneapolis, MN.  She has more than 15 years of experience in the legal technology industry and can be reached at mcs222@yahoo.com.

Tags:  Career Change  E-Discovery  Job Search 

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Chips Ahoy: #Meltdown and #Spectre Implications for Legal Professionals Part I

Posted By ACEDS Staff, Monday, January 15, 2018

Recent press reports talk about a newly discovered form of security threat that involves attackers exploiting common features of modern microprocessors (aka chips) that power our computers, tablets, smartphones, and other gadgets. These attacks, known as “Meltdown” and “Spectre”, are getting a lot of attention.

The chips at issue are those that were designed and marketed to be secure for multiple processes running at the same time.  The intent was to have the processes be independent, and to have the flow of data isolated one process to the next.

Research found that passwords and other sensitive data could be accessed by processes not authorized for such access.  Chip makers, operating system makers, anti-virus software providers and others are rushing to patch the systems.  Initially billed as a hardware fix, security professionals have designed and deployed software patches.  The initial software patches made systems run as much as 30% slower. The patches are being optimized to reduce the drag.

There will be a deluge of substantive work to determine the indemnity, IP, breach notification and liability around the vulnerabilities that have been identified to date and those that will emerge in the future.  Legal teams and those who serve them must be ready to work together to mitigate its impact, e-discovery, info gov and privacy professionals should be well positioned to assist the security professionals on the front lines.

Garden-variety computer forensics often times provides access to data not intended for harvest:  encryption keys, passwords, account access, caches of documents written to disk as an operating system artifact and not erased.  This data can be available to those who break into a system.  The vulnerabilities exposed with Meltdown and Spectre make multi-tenant systems, that is, cloud based, or systems intended to secure multiple, segregated projects from each other, are at increased risk.  The risk is that with a timing attack, an unauthorized intruder could read in memory some of these same encryption keys, passwords and caches of documents.

Hardware upgrades often force changes in operating systems and key infrastructure.  Because work product is so critical, and ediscovery depends on hash codes to flag differences in files as small as a character, it is important to know when to test the impact of patches and upgrades on your ediscovery data.  As patches have been released, some have worked at the operating system level but not at the anti-virus software level, necessitating a new patch—and new testing.

With patches, there may be changes in how metadata is handled and new impacts on searching (new stop words, perhaps) and document impacts.  You may need to accept changes in hashes for the same file, or you may be able to store two hash values, a before and after value.  These values not only authenticate collections and native productions, they also provide the framework for data reduction (cost savings) via deduplication.

Patching how chips handle data and how operating systems handle files can introduce changes in how file metadata is handled.  Without documenting why metadata looks different, you may be allowing the requesting party an opening to challenge the authenticity of your evidence.

It is likely that Meltdown and Spectre will take months to patch, and that new vulnerabilities will emerge, making this remediation a time and staff consuming event.

Part II will cover a plan for eDiscovery and legal teams to get their arms around the problem and remediate.

Resources courtesy of Christophe Veltos aka @DrInfoSec
Meltdown, Spectre: The password theft bugs at the heart of Intel CPUs • The Register
Meltdown and Spectre
Experts Weigh In On Spectre Patch Challenges

Tags:  chips  e-discovery  legal professionals  meltdown  spectre 

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Boilerplate Objections

Posted By ACEDS Staff, Thursday, January 11, 2018

Boilerplate Objections
Judge Peck sends a warning shot to the bar about meaningless, repetitive boilerplate responses to document requests.  Judge Peck, in essense, tells counsel to RTFR (a Chris Dale acronym meaning read the F(abulous) Rules and to update their template responses to include specific answers to requests.  Unless objections observed the “requirement to state objections with specificity”, he would consider boilerplate objections as waivers to all but privilege claims.

Fischer v Forrest, 2017 U.S. Dist. LEXIS 28102 (S.D.N.Y. Feb. 28, 2017)

Tags:  boilerplate  Fischer v Forrest  Judge Peck 

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Inherent Authority

Posted By ACEDS Staff, Wednesday, January 10, 2018

Inherent Authority
The US Supreme Court examined the inherent authority of the court to apply sanctions for discovery misconduct.  The Court validated the court’s authority to apply a sanction for fees, but limited the amount to determine “only the portion of his fees that we would not have paid but for” the misconduct at issue, and without including amounts designed to punish.

Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178 (Apr. 18, 2017)

Tags:  inherent authority  sanctions  US Supreme Court 

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