"Those of us here at Exterro are already preparing for a new year of E-Discovery and have put together a feast of new tools and resources that will help you get ready for what lies ahead."
Definitely worth a bookmark for future reference!
"One panelist, U.S. Magistrate Judge Kristen Mix, who sits in Colorado, said the first thing lawyers need to remember is that most judges don’t have Facebook pages, and may know about how the site works only through their grandchildren’s explanations.
“Our understanding is nowhere near as thorough as complete as if we were users,” said Mix."
And yet, when it comes to making legal decisions about social media evidence, those decisions are left in the hands of lawyers and judges who admit to not using them or understanding how they work?
I wouldn't be proud of that. Would you?
Look, the article is absolutely correct. Data is being created in millions of different places that didn't exist even a couple of years ago. That data could be evidence. That data could be the most important piece of information about a case.
That's why bar associations are laying down rules that say lawyers need to be competent or hire someone who is, when it comes to dealing with this data. More and more, cases hinge on data created is not being created on a local computer, but online, in various networks, websites, cloud storage locations and so on. Not understanding how these things work is not an excuse to not do your job.
"The three major distinctions are:
Per Family (email + attachment) vs. Per Document
Deduplication is performed on the family level, while near-duplication is performed on the document level.
Textual Analysis vs. File Analysis
Near-duplicate detection uses only the text AND white space to compare documents, but deduplication uses a set of criteria based on the actual metadata of the files.
Duplicates vs. Similarities
Deduplication removes identical document families, while near-duplicate detection groups documents together by similarity."
Deduplication is not the same as identifying near-duplicates. On the other hand, there are a lot of reasons to do both, so long as you understand the differences, and the different things you are trying to accomplish with each.
"There is so much potential benefit and harm for provider driven content being delivered by formal academic institutions that it boggles the mind. I remember early debates at EDRM about these kinds of programs and frustration that we could not get the resources allocated. The more than $2.2 Billion (yes, I capitalize that B) in 2015 investment in the eD/IG market certainly is trickling down to the next generation of law students and technical colleges. California’s new requirements for eDiscovery technical competence and other compliance challenges (EU Data Protection) are raising the bar for counsel and giving marketer’s an audience. Let’s hope that the content is solid and peer reviewed to remove potential bias."
Greg asks an interesting question here. On one hand, having eDiscovery technology available to law schools will help make sure that lawyers are graduating with at least some hands-on experience with technology before they have to go deal with it in the real world. On the other, how can schools avoid becoming a marketing place for that specific tool? It's easy to say they should offer more than one tool, but let's face it, budgets being what they are, they'll take whatever free tool is offered to them, by companies who understand that lawyers will be reluctant to "try something" other than what they're already familiar with.
Of course, the other thing in that equation is that, in many places, it's not the lawyers who are really digging into the tools, so are they better positioned in paralegal programs, or should we just have legal technology programs in schools?
That last one is an idea I could get behind.
Did you learn a specific tool in college that was donated by the company? Did it impact the curriculum, or did it impact a later purchasing decision?
"Q: Since electronic information is an intangible item, what are some of the more common issues that arise for your clients in e-discovery practice?
A: Clients will often ask about the best ways to manage the enormous amounts of data that they create on a daily basis. I will work with clients to focus on what needs to be preserved and eventually needs to be collected in any given case – this can affect not only the scope of the litigation but also the cost. E-discovery is becoming a much more complicated area than it used to be. Emails and documents saved on a computer or server used to be all that clients needed to worry about, but in recent years that has changed. Courts now expect parties to be able to preserve text messages, instant messages sent through corporate systems, and also different forms of data saved on the cloud. Companies are also realizing that they need to have a better grasp on the data that they create. This is a developing area where I have been keeping busy lately, and where I think there is a lot to be learned as far as the new ways in which people are communicating and the resulting data that is being created."
As I wrote earlier this week, the importance of information governance is growing. Whether you want to talk about keeping it secure, or deciding whether to preserve it as part of eDiscovery, you have to know what and where it is first.
" Information gleaned from social media should be top of mind when lawyers are considering e-discovery requests in litigation matters ranging from personal injury to labour and employment and the corporate sphere, according to a panel of in-house lawyers.
Despite the way many people freely share their personal information on Twitter, Facebook, and Instagram these days, many lawyers don’t think to turn to it for valuable material to use against someone in a case."
This should be obvious. Of course, this being the legal industry, it isn't. I'd say the law is slow to adapt, but that would be putting it mildly. While the rest of the world is experiencing stunning technological changes, lawyers are still trying to figure out how many pages this stuff is.
I'm only half-joking.
Seriously, though, if you're going to be involved in litigation, why wouldn't public information you post to social media be part of it?
"If you don’t, you should. When litigation is anticipated, it’s never too early to begin collecting potentially responsive data and assessing it by performing searches and testing the results. However, if you wait until after the meet and confer with opposing counsel, it can be too late.
On the very first day we introduced eDiscovery Daily, we discussed the danger of using wildcards in your searches (and how they can retrieve vastly different results than you intended). Let me recap that example.
Several years ago, I provided search strategy assistance to a client that had already agreed upon several searches with opposing counsel. One search related to mining activities, so the attorney decided to use a wildcard of “min*” to retrieve variations like “mine”, “mines” and “mining”.
That one search retrieved over 300,000 files with hits."
Really, how can you agree to search terms without knowing what the terms will return? It's like going to court and asking your witness a question that you don't know the answer to already, and don't they teach you not to do that in law school?
I'm a big fan of email threading technology, especially one that can identify the endpoints of email threads. Why look at every single email when it takes 15 emails for a small group of coworkers to plan lunch, when you can just look at the end of the thread, scroll through the previous messages quoted in that last email, and decide the whole conversation is irrelevant?
It only makes the review process more efficient, and as a non-lawyer, I can't understand what could be wrong with that?
"Predictive coding tools have serious ROI beyond litigation, because employees can find what they're looking for -- quickly."
Makes sense to me. I've worked with some folks who are using their eDiscovery tools to simply store and index data that they may need to search at some point. Most of the time that decision is driven by the need to be prepared to deal with eDiscovery, but once the data is there, it opens up other possibilities.
"As the Internet of Things continues to expand, so too will the sources of potentially material evidence. Xively, a part of LogMeIn, claims to connect 400 million devices, from usual suspects like computers down to individual light switches. The usefulness of that information those devices collect will continue to increase as IoT manufacturers improve their ability to connect device interaction with individuals. Just last Thursday, LogMeIn announced Xively Identity Manager which seeks to link device usage to individuals.
Take a nap? Turn off a light? Turn down the A/C? The Internet of Things knows and it's keeping a record."
This will be interesting to watch. Lawyers are already struggling with eDiscovery from mobile devices and things we've already had for years. As the Internet of Things starts tracking lots of information about us, how will that data play out, and how will we verify that the data is correct? How many people really think about whether the reporting can be hacked, making it appear that our car was in a specific area, when it really wasn't, for example?
Never a dull moment!
Google is really doing a lot for apps customers to make it easier to store data in the cloud. Security improvements, and now improvements to make it easier for companies to use Google Drive without losing what they need in terms of Information Governance and eDiscovery, mean that corporations can seriously think about storing data in Google Drive as part of their IG plan, rather than an IG nightmare. Good for Google.
The obvious answer here is yes, of course.
Is there a job where those aren't important?
The whole thing was bizarre, but yes, no matter how much it might freak you out that someone is going to be going through your cell phone, destroying it in the face of an investigation only makes you look guilty.
In this case, the team didn't issue Brady's cell phone so there can be some debate as to whether or not he had to turn it over to the NFL, but in cases where your employer issues your cell phone, at least in the US, they can pretty much do what they want with it. That's a really good case for having two cell phones, one for business and one for personal use.
Assuming you can reasonably make that work!
"Over the course of the one-hour presentation, the panel covered the following forms of analytics:
Identification of near duplicates.
Communications and social network analysis.
Fuzzy and advanced search.
Technology assisted review (TAR).
What these tools have in common, Noel explained, is that they let us take a big mass of data and slice it along different dimensions. This allows us to see different patterns in the data and different ways it is organized so we can drill in and find what is important to the case."
Now this is a webinar I might have to set some time aside to watch. There are lots of tools available to legal teams, it makes little sense not to use some of them!
I didn't manage to get to sessions where data security was the main topic, but I know it was a large topic of conversation all around the conference. Law firms are being held reaponsible by clients for keeping data that belongs to those clients secure, but it's a tough thing to do when you don't even know what data you have or where it's been stored. Trying to do that is the first challenge many firms are facing.
This a good article talking about chat/messaging apps like Bloomberg and how it alters what we're used to doing with eDiscovery. The one thing I have had numerous discussion about during training classes in the idea of keyword searching. In the informal world of chat, doing keyword searching without considering alternate spellings is a huge risk. What are the chances that someone used that word, but didn't spell it correctly, either on purpose by using text-speak, or just by being careless?
It's vital that you have a plan to include those possibilities in your searching, whether it's using fuzzy searching tools, or custodian interviews to ask about their chat use, or analyze a sample of the char before coming up with your terms.
I'm not a lawyer, and I'm not qualified to tell you what the plan should be, but don't think we don't discuss exactly these types of things when we get to the part of class that talks about fuzzy search! ;-)
How have you dealt with this possibility? Or are you still hoping all this mobile phone, chat, IM, stuff will just go away?
Not surprising at all is it? If you want to target sensitive data, a third party who doesn't have the same strong sense of protecting it, and an industry that has a reputation for somewhat lax security measures, would be a pretty tempting place to start.
Admittedly, this article had me at the headline.
You can buy all the expensive tech toys you want, and in the eDiscovery world, there are plenty of them out there, but if you don't have the people in place to use them properly, they do you no good. The real power over eDiscovery, investigations and what have you on the legal front, is having smart, talented, people included in the process, and believe it or not, much of the time, those people aren't lawyers.
Lawyers, you might have to get used to that idea...;-)
The main concern for eDiscovery is what email communication is no longer available, but I'd suggest a secondary concern, whether the recipient grabbed a screen capture or saved it some other way before it expired, and how we would locate those. Still, it's not like we don't already have concerns with people deleting emails or other items.
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