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European (EU) Data Protection Law Handbook now live

Posted in Cross-Border (International) Privacy Issues, Data Privacy, European Union (EU), International Law and Cross-Border Data Transfers

This 214-page document, “Handbook on European data protection law,” looks incredibly comprehensive.  It ends with 13 pages of citations to European case law on various issues.

The resource was “jointly prepared by the European Union Agency for Fundamental Rights and the Council of Europe together with the Registry of the European Court of Human Rights.”

Note also that, since 2012, the Euriopean Union has been working on major proposed amendments to the “Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995″.   A revised EU Directive was “adopted” in January 2012, and ostensibly implementation in 2015 is still the goal.  See this home page for the EU Directive amendments.

For some pertinent developments last fall, including backlash from Edward Snowden’s NSA revelations,  see:

To learn about the inherent conflicts between: on the one hand, U.S. discovery rules/scope; and, ont the other hand, data-privacy laws promulgated by the EU Parliament as well as by various individual countries in the EU (e.g., France, Germany, Italy and the UK . . .  check out these resources:

While You Are Gorging — FRCP 45 (Non-Party Subpoenas) Changes Take Effect 12/1/13

Posted in eDiscovery Law & Process, Electronic Information Management (EIM), Federal Rules Changes, FRCP 45, Non-Party Subpoenas, Third-Party Subpoenas

Amended Federal Rule of Civil Procedure 45 to take effect

When we all return to work from Thanksgivukkah weekend, Federal Rule of Civil Procedure (FRCP) 45, governing non-party subpoenas, will have changed, effective December 1, 2013.  To review the new content, follow one or both of these links:

A set of accompanying changes will also have been made to FRCP 37(b)(1), as reflected at these other links:

And, the all important Advisory Committee Notes can be accessed here:


 

Overview of Several of the Key Changes

 

1.  Issuance from Court Handling Underlying Case

  • Now a subpoena not only can but “must be issued from the court where the action is pending.” (emphasis added)
  • No longer must it issue from a court located in the geographical area for compliance.

2.  Nationwide-Service and Compliance-Location Clarification

  • Now “[a] subpoena  may be served at any place within the United States,” even though the compliance location must be tethered to the recipient’s place of residence, work or business.
  • No longer does one ever need to refer to state law — as to, e.g., compliance location.

3.  Forum for Subpoena-Related Motions/Disputes – a Change but With Some Flexibility

  • Now, subpoena-related disputes will typically be resolved in the district court in the compliance location; however, there is a possibility of transfer of a pertinent motion to the issuing court.
    • FRCP 45(d)(3) [formerly (c)(3)]
    • FRCP 45(f) [NEW subsection]
    • Advisory Committee Note to 45(f)
      • “In some circumstances . . . transfer may be warranted in order to avoid disrupting the issuing court’s management of the underlying litigation, as when that court has already ruled on issues presented by the motion or the same issues are likely to arise in discovery in many districts[; t]ransfer is appropriate only if such interests outweigh the interests of the nonparty served with the subpoena in obtaining local resolution of the motion.”
  •  No longer does one have to bring such a motion before the issuing court; however, “the court where compliance is required . . .  may transfer a motion . . . if the person subject to the subpoena consents or if the court finds exceptional circumstances.”

To Learn More

As to a range of eDiscovery issues related to non-party subpoenas, see:

–  eDiscovery: Subpoenas and Non-Party Production Issues (lengthy slide deck from a webinar I did for Lorman Education Services 5/20/13)

   –  Obligations When Third Parties Control Data, by Barry M. Kazan & Emily J. Mathieu of Thompson Hine, N.Y.L.J. (10/7/13)

 As to the brand new FRCP changes (including ones not touched on in this post), see these excellent resources:

–  Changes to [FRCP] 45  . . .  Promise To Simplify Federal Subpoena Practive, by Christopher Tompkins & Ethan E. Kent, Jenner & Block (11/14/13)

–  Rule 45 Changes in Motion, by Richard Marcus, Distinguished Professor of Law, UC Hastings College of the Law, Recorder (8/8/11) (LEXIS ID & Password required)

–  Rule 45 Third‐Party Subpoenas and Upcoming Amendments, by Jonathan E. Goldberg of SNR Denton and Darren A. Craig of Frost Brown Todd, Strafford Publications (7/11/13)

–  Report of the Civil Rules Advisory Committee  (6/6/11)

–  Survey of Issues Regarding [FRCP] 45, by Prof. Richard Marcus, Associate Reporter to the Advisory Committee on Civil Rules of the Judicial Conference of the U.S. (3/14/09)

Additional Resources Now Live on ITLawToday

Posted in Culling and T.A.R., eDiscovery Law & Process, Electronic Information Management (EIM), Records Retention/Destruction

Just a quick note to remind (?or first-mind?) everyone that this site’s Resources page is an ever-expanding universe.

Some highlights of recent additions and changes include:

  • Brand new eSignatures Bibliography posted on 9/11/13
  • New/replacement Records-Retention slide deck from a webinar I did for NCC on 9/10/13
  • Revised/updated Predictive Coding & T-A-R slide deck — as revised 5/11/13

Keep visiting ITLawToday’s Resources page and the rest of this site to stay up to date on the intersection of law and IT.

PowerPoint Handouts Not Needing a Magnifying Glass — Tuesday Tech Tip # 002

Posted in Tuesday Tech Tips

Over the past dozen years, having done almost 400 presentations  (almost 500 including eDiscovery law school class sessions) within my firm and out in the world I have learned a number of tricks of the trade.

Though generally I am function paperlessly, a reality is that many an attendee still likes a hardcopy slides handout on which he/she can take notes.  I do generate same and have them printed in color, double-sided.

More importantly, from a technical perspective, I’ve never been happy with Microsoft PowerPoint’s default Handout Creation modes, at least up through the 2007 version.

Even assuming one doesn’t put too much text on each slide, neither out-of-the-box approach is very satisfying.  Either there are 3 slides to a page so the attendees can barely see the miniscule text.  Or there are 2 slides to a page but no note lines.

So, many moons ago, my former assistant (she’s still a tech-savvy secretary here at Fenwick & West) Berta Lopez helped me come up with a better way.  The end result, as coined by me, is  . . . drum roll please . . . .  ”Display-One-Readable-Slide-And-Lines” (“DORSAL”) handout version.

Maybe Microsoft or a handshake-software programmer can come up with an automated approach to generate my favored version.  Until that day, here’s a “how-to” if you or your assistant would like to give it a try:

  • Open the .ppt version and from the Office button, choose ”Create Handouts in Microsoft Office Word”:

  • Then, in the ensuing window, choose “Blank lines below slides”:

  • Click on OK or press the Enter key.
  • Once it all goes into Word, save the file
  • Then, for each slide/image, right click, then choose Format Object:
    • Click on the Size tab

  • In the Height field input 4.8 over the default height
  • [You can copy the 4.8 for pasting into this filed for each of the other slides/objects.]
  • Then click on OK or press the Enter key.

 

  • Repeat for each slide.

 

  • Once you get through all the slides/images, save the file
  • Then convert it to Acrobat (File . . .  Print . . . . AdobePDF)

 

  • In the .pdf version in Adobe Acrobat, click on the Pages tab (on the left).
  • Via Ctrl+Click, select all the pages that have only blank lines (every other page).
  • Right click on one of them and choose Delete Pages.
  • Click OK as to each of the next two prompts.
  • Save the file, which should now only have slides (one per page).
  • Remove the Metadata.
  • Save the file again.

Your attendees will thank you. . . .

New Jersey 13th State to Protect Social Media Passwords

Posted in Applicant/Employee Online Privacy, Electronic Workplace, Employee/Applicant Online Privacy, Social Media Rewards and Risks

The Just-Signed New Jersey Law

On Thursday August 29, New Jersey Governor Chris Christie signed revised legislation, namely A.B. 2878, which, among other restrictions, forbids employers to ask applicants or employees for their social-media or other online logins/passwords.  A few months back, on May 6, Gov. Christie had conditionally vetoed a prior iteration of the bill, asking that it not rein in employers so much.

For example, the Governor sought — and ultimately obtained by an August 19 unanimous vote – amednments that would allow employers to conduct various types of investigations and not prohibit “an employer interviewing a candidate for a marketing job  . . . from asking about the candidate’s use of social networking so as to gauge the candidate’s technological skills and media savvy.”


Similar Laws in Force in a Dozen Other States

New Jersey joins the following 12 other states that have enacted similar bans during since May 2, 2012:

 Already in force:

       Arkansas; California; Colorado; Illinois; Maryland;

       Michigan; New Mexico; Utah; Vermont; and Washington

  

 – Taking effect soon: 

      Nevada (10/1/13); and Oregon (1/1/14)

Some of those states’ statutes contain very broad prohibitions.  Others, like Michigan’s and New Jersey’s, grant employers some exceptions, usually encompassing workplace investigations. Delaware has also enacted an analogous ban, which, although not directed at employers, focuses on universities vis-a-vis students. For a very good recent article on the various approaches the states have taken, see Philip L. Gordon and Joon Hwang, Making Sense of the Complex Patchwork Created by Nearly One Dozen New Social Media Password Protection Laws, Workplace Privacy Counsel (July 2, 2013).

Controversy re: These Login/Password Bans

The wave of state legislation in this context is  a privacy victory for employees, job seekers and/or students.  But, from the  management perspective, many have criticized the stricter of these laws as addressing a discrete (non-)issue with a blunt instrument approach. See, e.g., Molly DiBianca, Michigan Enacts Social-Media Privacy Law, Delaware Employment Law Blog (Dec. 30, 2012).

Others have noted that a greater priority should be a modernization of the federal Electronic Communications Privacy Act (“ECPA”). Behnam Dayanim, Employee Privacy Forces Legislation, Recorder (Aug. 8, 2012) (“these ‘bullet bills’ … represent a missed opportunity both to update the SCA to reflect today’s technology and to re-engage . . . over the broader policy questions.”) (LEXIS ID and password needed).

Indeed, the federal Stored Communications Act (SCA) — Title II of the ECPA — of is sorely in need of an update as its outdated provisions do not come close to addressing modern technology and 21st century methods of electronic communications. The SCA was passed in 1986 to try to address that new-fangled technology known as voicemail.

The only amendment to the SCA since its 1986 inception was via the USA PATRIOT Act, hastily passed just weeks after 9-11 to make it easier for prosecutors to obtain from Internet Service Providers the missives of potential terrorists. The SCA’s sister provision, the Wiretap Act — now Title I of the Electronic Communications Privacy Act (ECPA) — has barely been changed since way back in 1968, when wiretapping on phone calls was the primary concern.

Note, though, that the SCA has been interepreted many times by various federal courts to criminalize and provide civil damages for anyone who illictly obtains an individual’s login credentials and then accesses a password-protected online environment. See Robert D.Brownstone, eWorkplace II White Paper (Apr. 3, 2012), at 19-20 (.pdf pp. 24-25).

But see also this brand new piece, Philip L. Gordon, New Jersey Court’s Decision Provides Roadmap For Access To Employees’ Restricted Social Media Content, Workplace Privacy Counsel (Aug. 27, 2013), which addresses a recent decision in a case whose prior opinion was discussed in Venkat Balasubramani, Accessing an Employee’s Facebook Posts by “Shoulder Surfing” a Coworker’s Page States Privacy Claim — Ehling v. Monmouth Ocean Hosp., Eric Goldman Blog (June 4, 2012).

As to a reboot of the ECPA for the 21st century, of course none of us — including our state legislators — can force Congress’ hand.


Congress Asleep at the Switch with SNOPA (why didn’t they call it “SNOOPA”?)

 Speaking of Congress, don’t hold you breadth for the oft-threatened ECPA reboot.   As in the notice-of-data-breach   context, the states have jumped in to fill the void in this arena because of Congress’ inaction.   On the federal level, the  ”Social Networking Online Protection Act” (SNOPA) was introduced in the House as H.R. 5050 on April 27, 2012 and  reintroduced on February 6, 2013.  But the bill has languished with no activity since then.

Two Dozen More State Bills Pending

 Approximately two dozen states have pertinent pending 2013 legislation (linking to 2012 legislation compilation).  Some of those states are considering entering the fray for the first time.  Others — California, Delaware, Illinois and Maryland –  are contemplating beefing up or expanding their current provisions.

Open Issue = “Shoulder-Surfing”

Banning forced disclosure of logins/passwords has been the thrust of the pertinent statutes so far.   Thus, some of the enacted and pending bills have been silent as to the related practice of “shoulder-surfing” — namely, having an interviewee log into, e.g., her/his Facebook while the interviewer stands or sits behind the prospect so as to see all the private content to which the applicant is instructed to surf.

At first blush, conceptually shoulder-surfing seems quite similar to login/password access.  But maybe there are differences, such as that the element of surprise might not allow an applicant the chance to “clean up” his or her social-media possts and friends/followers lists.  And maybe, some ban exceptions should exist in certain public sector situations.

Apparently, cities and counties  like to be able to try to sniff out whether prospective cops have relatives or friends who are gang members.  On the other hand, government action intruding into individual privacy is a constitutional law concern for public agency employers.

As to the various sides and aspects of the shoulder-surfing issue, see generally: Bob Sullivan, Govt. Agencies, colleges demand applicants’ Facebook passwords, NBC News (Mar. 6, 2012).  And the above-linked Gordon/Hwang piece sheds some light on which of the first 12 password-bans bans ostensibly did and did not address in-person shoulder-surfing — and on some do’s and don’ts (mostly don’ts).


The Future?

Stay tuned for developments in this area, as one state after another takes the plunge.

Two Defaults to Change in MS Word — Tuesday Tech Tip # 001

Posted in Microsoft Word, Tuesday Tech Tips

First in a Weekly Series of Tuesday Tech Tips

Each week, ITLawToday will bring you a “techology tip.”  Welcome to the inaugural Tuesday Tech Tip.  Some will focus on legal compliance.

Others will focus on the nitty-gritty of day-today workflow and information-management.

As we say in California, “Enjoy.”  As they say in my hometown NYC, “Knock yourself out ‘hon.”


Introduction

Out of the box, Microsoft Word traditionally has a number of default settings that hinder efficiency.  For better day-to-day information-management, I suggest you make these two changes that I routinely implement each time I first use a new version or uprade of MS Office.


Hyperlink Followable WITHOUT Ctrl+Click

My propensity is to embed as many hyperlinks as possible in documents I generate.   Each such link should be readily followable IMHO.

So that you or any user of the file can readily click to follow a hyperlink, disable the need to hit Ctrl+Click as follows, per Microsoft’s instructions:

  1. Click the File tab.
  2. Click Options.
  3. Click Advanced.
  4. Under Editing Options, clear the Use CTRL + Click to follow hyperlink check box.

Spell Check to Address ALL UPPERCASE Words Too

Nothing against inserted Comments. . . .

But when I send a client an annotated draft of a compliance policy, I prefer to input directly into the text — in all UPPERCASE — a bold, yellow-highlighted question in each respective spot where the client needs to provide more facts or make a philosophical decision.

By trial and error, I realized Spell Check was not catching typos in those annotations.   ASAP, I re-configured Spell Check to be more thorough. You can do the same as follows:

  1. Click on the flying-windows icon in the upper left.
  2. Click on Word Options.
  3. Click on Proofing.
  4. Click to uncheck the box to the left of Ignore words in UPPERCASE

To learn more, visit Microsoft’s “Choose how spell check and grammar check work“.


Conclusion

Comments?  Questions?  Other Word defaults that make you cringe?

Anyway,  each of us have different peeves and desires.

So, your suggestions for future tips of all sorts are more than welcome . . . .

Employers’ Technology Acceptable Use Policies — Top Ten Tips

Posted in Electronic Workplace, Technology Acceptable Use Policies (TAUP's)

The Landscape of Electronic Workplace (eWorkplace)  Technology Acceptable Use Policies

Every U.S. private and public sector employer should develop, maintain and enforce an effective, appropriate workplace technology-acceptable-use policy (“TAUP”).   In large part, a TAUP is a no-expectation-of-employee-privacy (“NoEEP”) policy.  Thus, to strive for maximum defensibility, every employer should keep up on two key tasks.  First, it should have a coherently written acceptable-use policy adapted to modern technologies.  Second, it should train – and periodically remind/re-train – its managers of the do’s and don’ts of consistent, appropriate enforcement.

The U.S. Supreme Court decision in City of Ontario v. Quon, 130 S. Ct. 2619 (June 17, 2010) culminated a long, cautionary tale with many lessons.  The key Quon defendant (a public sector employer) ultimately succeeded in fending off a Fourth Amendment challenge to enforcement of its acceptable-use policy when it reviewed the contents of a police officer’s text messages (to his wife and his mistress) sent on a city-issued pager.    

Yet the years of litigation could have been avoided if the employer, the city of Ontario, had been more disciplined in its  written policy maintenance and less reckless in its policy-enforcement approach.

For a full discussion of the legal reasoning of the U.S. Supreme Court in Quon, see Brownstone eWorkplace Materials II, at 20-24 (.pdf pp. 25-29).  For employees, Quon’s enduring lessons are: be mindful of what one commits to writing; and do one’s best to erect a divide between one’s personal and work-related communications.  For employers — both in the public and private sectors – please read on below for my TopTen post-Quon Taup tips.


Top Ten TAUP Takeaways  

10. Have a clear, bold, highlighted written provision covering – at least as to U.S. employees (EU countries’ privacy laws are much more employee-friendly) – NoEEP as to all information created, stored, received or transmitted on or by any system or device provided by the employer.

9.   Decide whether to extend the NoEEP to all devices supported by (e.g., Outlook access) or costs–reimbursed  by the employer [are you OK with BYOD?]; and then make the scope clear: a) in the written policy; b) to all supervisors/managers; and c) to all staff.

8.   Specify all employer rights, including to: monitor; search; access; inspect; and read.

7.   Give clear written notice to all employees and covered third parties allowed access to employer systems/networks.

6.   Be realistic as to “personal use” – strongly consider a “limited” or “incidental” exception, but with carve-outs for certain activities: violating the law or any other employer policy; interfering with the employee’s job performance; or aiming for personal pecuniary gain to the detriment of the employer.

5.  Train new employees – and periodically retrain experienced ones – on key TAUP provisions, especially as to NoEEPP.

4.  Train supervisors/managers on consistent, fair enforcement.

3.  In the trenches, do not overreach as to: an employee’s own attorney-client privilege; or the illicit obtainment – let alone use – of an employee’s personal login/password.

2. Provide an annual concise reminder summarizing key TAUP provisions, including employees’ right to discuss employment conditions.

1. Periodically – every two or three years? – review (and revise?) the TAUP so it’s: consistent with actual practices; and up-to-date as to current technology, e.g., smartphones, social media and “The Cloud”.


The “e”     Big Picture    

Always remember the Three E’s of compliance: Establish, Educate and Enforce as propounded by Nancy Flynn of the ePolicy Institute <@ePolicyInstitut>.  First, policy goals must be established.  Second, once the policies are written, employees must be educated on the content.  And, third, only then, should technology be used as one enforcement/ implementation mechanism – not as a magic-bullet.


This post is based in part on “A Wake-up Call for 21st Century Employers“, Daily Journal (Sep.  29, 2010), which I co-authored with my colleague Sheeva Ghassemi-Vanni <@EmpLawSJGV>.

 

Translating for Technologists, Lawyers & Earthlings

Posted in Data Collection and Computer Forensics, eDiscovery Law & Process, Preservation and Spoliation

The Murky Way         

An oft-repeated translating maxim is: technologists are from Mars, lawyers are from Venus.

So getting IT folks and attorneys — both infamous for acronyms and jargon — to work together during eDiscovery can be challenging.  An interplanetary translator is often needed when attorneys and techies collaborate to tame the world of electronically stored information (ESI) – especially when someone needs to explain status or next steps to the client.


You Talkin’ To Me?

Some different monikers for common ESI terms used in eDiscovery follow below:

(click chart to enlarge)

My favorite is the “custodian” one.  The most oft-misunderstood one in that list could very well be “index”.   But there’s an even more troubling one . . . .


You Say “ARChive”, I Say “ArcHIVE” . . . 

Consider the word “archive.”

 

While its everyday meaning – any kind of information maintained for historical reference – can seem straightforward enough, “archive” in the ESI universe can mean either a backed up set or subset of an organization’s enterprise-wide data, or the e-mails stored somewhere other than in people’s active e-mailboxes.

Complicating matters even further, the term can have two additional connotations in both the worlds of backup and email. In the backup context, “archive” can refer to either: the arcane practice of copying of some or all of an organization’s data into a storage format (in old days, mostly on tape, but now often on hard disk) from which it is restored most typically after a disaster; or live data in “near-line storage” available for a relatively easy connection to the company’s network.

Then, in the e-mail setting, “archive” can refer either to an automated, company-wide repository of employees’ older e-mails; or e-mail messages that an individual manually copies ad hoc to a personal storage file, known as a “.pst” file in the Microsoft Outlook environment.

Sometimes months can go by before the key players realize that their minds never met on this single word.  The outside legal team thinks it has been processing and reviewing all e-mails collected from live mailboxes, back-ups and .pst’s, the CEO believes costs were saved because only live mailbox data was addressed; and the techie feels proud that he followed directions by only collecting e-mails from .pst’s stored on shared network drives.


Truth or Consequences

It can be difficult enough to resolve the resulting squabbles and finger pointing.

But then you need to convince the other side that re-production is necessary due to an innocent mistake; and you have to maintain your credibility before the judge (crucial to effective lawyering).  In addition to everything else, the court often treats e-mails and back-ups in diametrically opposed ways.  E-mails are presumptively discoverable as long as they contain relevant information within a pertinent time frame.  But, at least in federal court, back-ups are presumptively not discoverable until the requesting party shows good cause.

Mixing up enterprise-wide data with email backups – or a similar snafu – during discovery can lead to inefficiency and spoliation sanctions.  It can also keep a client from understanding his/her options when analyzing the risks and benefits of various e-discovery decisions.  At each stage, making a mistake about what a word like “archive” means can seriously jeopardize effective communications in written discovery responses, meet-and-confer correspondence and status conferences at the courthouse.


Let’s Be Careful Out There

Ambiguity inheres in many a term or phrase.

In the throes of discovery, confusion can reign when lawyers don’t have someone to communicate with IT staff who are trying to get their day-job done and client leaders who are busy running their company.   The trick is to be as specific as possible when discussing ESI.  When in doubt about an acronym or a computer-technology process, ASK.

An effective dialogue can be pivotal for the ultimate success of your navigation of the e-discovery universe — and the lawsuit as a whole.


A prior version of this article was published in the May 2010 issue of California Lawyer.


TO LEARN MORE:

See the eDiscovery Terminology Glossary (.pdf) compiled and maintained by the author.

See also this excellent Technology-Assisted-Review Glossary created by Maura R. Grossman and Gordon V. Cormack and posted on the EDRM site.


eDiscovery’s eVolution Akin To Disney’s Fantasia

Posted in Culling and T.A.R., eDiscovery Law & Process, Meet and Confer

Introduction to eDiscovery’s eVolution – Past, Present and Future

Three segments of the 1940 Walt Disney classic Fantasia correspond with the three historical phases business information and civil litigation discovery have undergone in the past three-quarters of a century.  Fantasia, an iconic combination of a set of Disney-animated vignettes each set to a well known classical music piece, went into production in 1938.  That same year, the first version of the U.S. Federal Rules of Civil Procedure was adopted.

In the now distant past, from 1938 until approximately 1995, business information — and thus lawsuit discovery — entailed an evolving and growing universe, mostly of paper documents.  One of my former Fenwick & West LLP colleagues,  J. Carlos Orellana, once pronounced that discovery “document review is the primordial ooze of litigation.”  Yet, even as that ooze grew and took over lawsuits, there were outer bounds.  Yet, in the next era, from 1995 to 2011 (but still the status in most circles), the explosive growth of the internet, storage chip capacities and portable devices magically rendered the scope of information and discovery vast and overwhelming.

After what seemed to some like an interminable wait, in 2012 some judges ushered in a futuristic phase.  Their respective orders addressing technology-assisted-review (TAR) – a/k/a predictive coding – were long-awaited harbingers that opposing litigators will be forced to collaborate.  Why?  To get to the merits efficiently – or at all.


I.  Distant Past – Primordial Ooze to Prehistoric Behemoths to Extinction via The Rite of Spring

Amoebae and then primitive fish were depicted throughout the beginning of the Fantasia segment The Rites of Spring, set to the music of Igor Stravinksy.  Similarly, information creation processes sputtered and slithered along for eons before eventually growing bigger and increasingly powerful.  At some point, earth’s creatures emerged from the ooze and became lumbering dinosaurs.  

Ultimately, the dinosaurs slugged it out with each other.  But to what end?  They ultimately all became extinct, as vividly displayed in the Disney Rites of Spring segment.  Similarly, as the Internet era dawned, those in the business and litigation worlds who remained wedded to paper began their own march toward obsolescence.

However large a “paper dump” ensued in a lawsuit, relatively speaking there were finite sets of discoverable materials to be collected, reviewed and produced, on the one hand, and requested, obtained and reviewed, on the other hand.  Although lawsuits lumbered along as the parties duked it out in discovery, there was more of a chance to get to the merits than nowadays.


II.  Past (& Still Present) – Taming an Army of Clones Created by The Sorcerer’s Apprentice

A non-expert, Mickey Mouse, uses his boss’ magic in the Fantasia segment Sorcerer’s Apprentice, set to the music of Paul Dukas.  The power to create goes awry as a lone broom comes to life to carry two water buckets.   Then duplication occurs and re-occurs until hundreds of identical broom-plus-buckets run amok to flood the premises.

Anologously, once paper came to be more and more displaced by electronically stored information, the size of most every company’s discoverable data set became expansive and often infinite.  Consequently, so did the vast amounts of electronically stored information (ESI) potentially subject to electronic discovery (eDiscovery) in lawsuits.  Amendments of procedural rules in the federal and states’ realms reflected were supposedly designed to shrink the scope of discovery.  But a variety of factors, including disparity in computer-savvy and financial-resources among litigation adversaries, have bogged down lawsuits more and more in a sea of data battles.

In the Disney Apprentice segment, the Sorcerer jumps in to save the day and clean up the mess.  But modern day judges have often been unable or ill-suited to readily enter the fray to tamp down on the chaos.  All judges operate under budgetary and resource restrictions; and many of them do not have sufficient technological expertise  or fierceness to ride herd on the data.

Some positive developments emerged as this next era came to an end.  For example, between 2008 and 2012, 135 judges signed onto the Sedona Conference Cooperation Proclamation (.pdf; free registration required), which urges opposing litigants and their counsel to take a collaborative approach to eDiscovery.  More significantly, a number of courts began to adopt their own orders and guidelines requiring the parties to engage in early attempts to narrow scope and cut to the chase.   For example, see:

–     the Federal Circuit’s 2011 MODEL ORDER RE: E-DISCOVERY IN PATENT CASES; and

–     the Northern District of California’s 2012 E-Discovery (ESI) Guidelines.


III.  The Future is Now –Technology-Assisted-Review Will Get the Gator and the Hippo to Join in the Dance of the Hours

A cartoon ostrich is lying down, curled up and hiding her face in the opening of the Dance of the Hours set to Almicare Ponchielli’s ballet music from the opera La Gioconda.   Eventually various other animals emerge, including a hippo who is initially terrified of an alligator.  Eventually the hippo and the alligator cooperate and even dance a pas de deux.

     

In the eDiscovery jungle, traditionally opposing counsel have been wary of each other and cooperation has been a difficult pill to swallow for many a litigator.   For many years, some tech-savvy judges and lawyers, commentators and computer scientists have been beating the drum for a better way.  For example, see:

          –     International Association for Artifical Intelligence (“AI”) and Law (“ICAIL”) (1992-2013);

         –     Collaborative Navigation of the Stormy eDiscovery Seas, 10 Rich. J.L. & Tech. 53 (2004);  and

          –     Text REtrieval Conference (“TREC”) Legal Track (2006-2013).

Between February 2012 and April 2013, half a dozen judges — in various federal and state courts nationwide — wrestled with the issue of requiring the use of technology-assisted-review (T-A-R) to help cull through one litigant’s large data set.  Five of those judges essentially issued some form of court order requiring T-A-R, a/k/a “predictive coding.  For links to all these decisions and to explanatory articles, see this T-A-R slide deck my tech colleagues and I prepared.

In sum, T-A-R involves a litigator knowledgeable about the facts of a case engaging in an iterative process to “train” a sophisticated eDiscovery platform’s AI feature to distinguish relevant documents or messages from irrelevant ones.  The promise of T-A-R is that much of the old-school document-by-document manual review by human reviewers can be avoided.  The trick is making sure the platform’s coding and algorithms work, the trainer/lawyer is effective and the people-plus-machine process is  sound as well as acceptable to the other side and the court.

While this new batch of five cases is just the start of a new era, it bodes well for the future of court-ordered cooperation aimed at forcing the alligators (plaintiffs’ counsel) and the hippos (defendants’ counsel) gracefully dancing with each other.  And when the real conductors — the clients themselves — start regularly waving their batons of efficiency and cost-effectiveness, a new futuristic cut-to-the-chase era will truly be in full swing.


Conclusion

My crystal ball shows that, in approximately a decade, eDiscovery culling and review will routinely  involve T-A-R.

In the meantime, keep returning to this new blog as we journey together to navigate ESI’s ever-changing tides.


TO LEARN MORE about T-A-R: