State Capital Group 2017 Annual Meeting, Denver

by Howard J. Reissner
CEO, Planet Data

The State Capital Legal group held its 2017 annual conference in Denver on September 7-9. The group consists of midsize firms from all of the United States (usually located in the state capital) and 45 foreign countries.  The main purpose of the group is to educate the member firms about leading trends in the legal industry, such as business opportunities, market changes and technology developments and to foster a network of cross referral opportunities across the member firms in various jurisdictions

The SCG conferences always have an overarching theme that establishes the foundation for the panel discussions.  This year’s theme was the Internet of Things (IOT).  In support of the group’s mission to educate about new niche opportunities that are a fit with the firm’s strengths, the panel discussions explored new business opportunities for the firms by developing expertise in IOT related issues such as security, privacy, regulations (both Federal and State), privacy, contracts and lobbying. 

It was noted that many startups are entering the IOT market with various internet and “App” enabled technology offerings. These new companies require guidance in all of the previously noted areas, but will also may need guidance in business establishment formats (eg: corporate, LLC, or LLP), licensing contracts, personnel issues and protection of their Intellectual Property

The SCG member firms are particularly well positioned to capture these opportunities because of their proximity to key governmental personnel and the legislatures in their jurisdictions.

Early stage companies require the types of services that in general are outside the market segment of “Big Law”. These entities need a lot of personal attention, explanations, and creative, cost effective legal advice. The SCG firms have the ability to provide niche expertise and solutions to these growth companies.

A second track which was sponsored by Planet Data, was a panel that addressed the opportunity for the member firms to compete for State initiated litigation. The presentation focused on the recent State entity filings of law suits against the manufacturers and distributors of Opioids. These litigations have a focus and scope that are similar to the tobacco law suits filed in the 1990’s. The States are claiming substantial damages to their populations and health care systems as a result of the explosion of opioid addiction amongst their populations. The panel was kicked off by  Marilyn Gartley, Asst. Attorney General of South Carolina, and Mike Wade, CTO of Planet Data. Mike and Marilyn described and demonstrated some of the basic concepts of ediscovery, data searching and culling, and validation. Utilizing Planet Data’s Exego platform, the participants were provided an overview on how to approach an investigation of large data sets to establish that there is sufficient information to commence a legal action.

Jim Batson, of litigation funder, Bentham IMF then described how the member firms could secure the financial resources that will enable them to sustain a long term contingency based case against an opponent with much greater resources. Jim emphasized that this type of strategy can help level the playing field, while freeing up the firms’ assets for other purposes.

Mike Berman of Rifkin Weiner, eDiscovery expert, noted author and law professor presented an extremely engaging primer on how to handle Electronically Stored Information (ESI) at the outset of the case. Mike shared a series of clever slides describing real scenarios of people posting criminal action on Facebook (admissible evidence), failing to preserve data, and most amusing, the manner in which spoliation caused Tom Brady some pain off the field in the “deflategate” soap opera.

To reinforce the timeliness of this presentation, on September 20, 2017 major news outlets reported that a group of states investigating the opioid painkiller industry (including New York, California, and Tennessee) has stepped up their probe with a new demand for documents from manufacturers and distributors of these drugs.


Starting With More Data Shouldn’t Lead to Reviewing More Data

trees shedding data

By Howard J. Reissner, Esq.

Yes, we are now starting with much greater quantities of raw data that is subject to discovery.

No, that does not mean that more documents need to be reviewed by attorneys.

What has been the common thread in eDiscovery over the past year? In a nutshell; the practical and economic necessity to substantially reduce the quantity of data requiring direct attorney review. Period.

The latest Amendments to the FRCP (effective December, 2015), had their origins in the realization that the ever-increasing amount of data now being created and stored was often skewing the legal process. The costs of the discovery process were becoming a central issue as to whether litigants would be denied the right to have their cases decided on the merits, and not denied the just, speedy and inexpensive determination of their case (Rule 1).

Always with the Best Intentions

The primary intent of the Amendments is to enable the discovery process to be faster, more focused, reduced in scope, and thereby less expensive – ultimately allowing cases to avoid being derailed by the costs and burdens of discovery.

Consistent with this theme is the effort to clarify document preservation requirements, allowing the routine deletion of data stored without the fear of sanctions at some point in the future. We believe that one of the practical implications of the Amendments, the accelerated number of days to comply with scheduling requirements, is having an impact on the eDiscovery industry that was not fully anticipated.

In essence, the reduced timeframes required for obtaining knowledge of a litigant’s document systems and data within their control has had an effect similar to the adoption of the 24 second shot clock in the NBA 60 years ago. There is a lot less time now to pass the ball around. The “scope” of the potential discovery for a case now needs to be addressed at the very outset of that case (if not before, when possible). Rule 26(b)(1) directs that discovery requests to be focused on non-privileged evidence that is relevant to a claim or defense AND (emphasis added) is proportional to the needs of the case.

Also, information necessary to support claims or defenses needs to be identified and understood pursuant to Rule 26 (a)(1) Initial Disclosure. The practical result is that discussions regarding the scope of discovery are taking place much earlier in a case. Outside counsel now need to be knowledgeable of the legal issues and relevant data under the control of their client to enable competent responses at 26(f) conferences and to early requests for discovery on every case.

M&A Activity Complicates the Data Landscape

To further complicate matters, the low interest rate environment in the global economy the past few years has facilitated a substantial amount of corporate merger activity. Low financing costs have made it less expensive than ever to buy, rather than internally develop business growth. This activity has created new corporate structures encompassing disparate legacy data management systems. From an information governance perspective, data increasingly resides in multiple locations, often with no common connectivity or searching capabilities.

The Ball is Moving Much Faster Now

What are some of the unintended consequences of the well intentioned changes to the Rules that have compressed the time periods for data identification, analysis review and production? I am willing to offer that they have blind-sided technology providers, litigants and attorneys who had been relying on tools and work-flow developed during a more leisurely, less complex, less cost sensitive era.

While the Rules were being amended over a period of several years, fundamental changes in technology was rapidly expanding the volumes of data created, the complexity and variety of information, and the decreasing costs of storage (e.g. cloud back-up). In essence, technology developments are far outpacing the ability of the law to keep pace. The law is always fighting the battle with the last war’s weapons.

Several years ago, it was generally accepted that organizations needed to implement information governance processes that disposed of information on a routine basis. The general concept that this is good corporate policy has not changed. Information that is not legally (or for good business purposes) required to be retained should be discarded. The practical effect will be to reduce the costs of locating, processing, searching and producing the information when subjected to a discovery request.

Storage Lockers Drop in Cost

Until quite recently, one of the main economic reasons supporting this concept was the high cost of storage (i.e. hardware, software, security, expert personnel). While the need to appropriately eliminate data to avoid unnecessary costs at the outset of future litigation has not changed, the acceptance of inexpensive cloud base storage has encouraged the current rationale of “let’s just keep it all because it’s a cheaper solution than figuring out what to discard and what to retain”.

To summarize, the corpus of information potentially responsive to discovery requests has skyrocketed, and time frames to respond have become compressed. Nonetheless, corporations are insisting vigorously to their outside counsel that due to much tighter budgets, the number of documents requiring attorney review should not be increasing. This has accelerated the emphasis on the utilization of technology earlier in cases to identify a more discrete universe of potentially responsive data.

It’s Important to Have the Right Tar for the Specific Job

So what is the most efficient, cost effective way of limiting the quantity of data that must be reviewed by attorneys?

At least a few times a week I see an article describing new methodologies of “TAR”. I consider the TAR designation a catchall phrase for various technology and work-flow paradigms that attempt to identify, cull and categorize information throughout the discovery process. Properly implemented, TAR workflows during pre-review can eliminate a large percentage of the non-relevant data, thereby allowing a more targeted, relevant subset of the data that ultimately is reviewed.

I am confident that in the right types of cases (and data sets), TAR methodologies such as conceptual search, categorization, clustering, “predictive coding”, and “continuous active learning”, have proven effective in substantially reducing the original corpus of information that requires human review. Additionally, in the latest emerging technology frontier, much progress has been made in utilizing Artificial Intelligence to identify relationships and threads in data sets that may not be apparent when viewed in a traditional linear manner.

But strip away all of the above TAR methodologies to their bare essentials; they are not effective if not designed and utilized in a manner that provides complete, accurate results in a consistent, defensible platform. As important, the technology and work-flow should be user- friendly and understandable to attorneys and their support staff.

For the majority of litigation cases, advanced TAR is not being utilized. That is because most attorneys do not wish to become technologists; an eDiscovery platform that can accurately process all of the data, provide detailed reports, enable an easy to navigate work-flow, and supported by knowledgeable people is the often unmet “gold standard”.

Implications for Attorneys, Litigation Support, and Service Providers

The practical realities of today’s economic environment are that corporations demand streamlined, efficient discovery, with as few documents requiring attorney review as possible, at the lowest cost. The challenge for service providers is to achieve this result without compromising on work quality (and completeness), and of course, client service. Industry service providers who did not anticipate the current environment and failed to adapt their work-flows, technology and personnel resources to meet these challenges are failing to meet these heightened levels of client expectations.


To conclude, the current challenge for e-discovery service providers is to offer highly efficient, easy to navigate technology solutions supported by expert personnel. The size and complexities of the raw data universe will only increase. Attorneys, most who are not technophiles, are being challenged to adapt to this new era, whether by choice or practical demands.

Easy to navigate, intuitive technology, combined with expert support, will for the vast majority of cases be the most efficient way to confidently reduce the quantity of documents requiring attorney review. This is good news for the market participants that have invested their resources in creating flexible, scalable technology while noting the increased importance of responsive, client support.

George Washington Law Alumni Association (GWLAA) Presented Inaugural Specialized Curriculum Event at Holland & Knight’s Washington, DC Office

Pictured left to right: Lara Covington (Partner, Holland & Knight LLP); Norma Krayem (Senior Policy Advisor, Holland & Knight LLP); Sherri Davidoff (CEO, LMG Security); Howard Reissner (CEO of Planet Data)

Q&A with GWLAA Board of Directors, Barry Nigro and Howard Reissner

Q: What is the Specialized Curriculum committee and why was it started?

HR: We formed this new committee after several discussions with friend and colleague Barry Nigro, Esq. about how to provide law students and young alumni with specialized knowledge that will give them a competitive advantage in the legal marketplace. We believe that particularly in small to mid-size law firms and corporations that have limited resources, an attorney who can lead in areas such as privacy, cyber-security, forensics, compliance, regulatory, and data management will enhance their chances of long term employment.

A key part of this approach will be to introduce the group to thought leaders and experts in diverse areas of the legal field. Specifically, the initial thoughts were to invite those who can discuss new developments in technology that will have an impact on the legal profession. The goal of this committee is to identify leading edge legal issues that are under-addressed at GW Law, and develop seminars of approximately one hour focusing on specific topics that will teach practical utilities and skills. I welcome the participation of fellow Board members who would be interested in designing, developing and participating in this program over the next several months.

BN: As Howard explained, the committee was created to facilitate the enrichment of our GW Law community through a series of specialized programs. It is a new committee; I expect it will evolve as we learn what works and what our alumni want and need. I am looking forward to watching it grow.

Q: What is the committee’s primary goal?

HR: We want to help prepare law students and young alums with the tools to compete in this highly competitive legal environment. These experts can share their experiences and specific domain expertise to assist in the preparation for professional life. The intention is to provide guidance, knowledge and skills that will be differentiators in this competitive job market. We also can assist more experienced alumni in maintaining and enhancing skill knowledge in these leading edge areas of the legal practice.

Q: How important is this type of “real-world” instruction to students and alumni?

BN: It is critical. Being a successful, and happy, lawyer is not just about good grades and passing the bar. GW Law School recognizes this and has instituted a number of programs for law students to prepare them for success in the real world. I think of the Specialized Curriculum as going a step further by continuing to provide access to this type of practical programming after law school.

HR: This type of practical instruction is critical for success today’s ever evolving legal environment. Most national law schools teach basic legal theory and focus on a course of study that prepares students for Bar exams and then legal practice in large, structured law firms. Only a few law schools have embraced the need to offer real world practical training that will enable young lawyers to provide valuable skills that can be applied at the outset of their careers, especially at smaller law firms and corporations.

Q: Tell us about the inaugural event.

HR: The inaugural event was held on September 20 at Holland & Knights Washington, DC office. We were incredibly lucky to have Sherri Davidoff, CEO of LMG Security present. Sherri noted that we are constantly reminded of the ever-changing ways to create data, store data, hide data, move data, secure data, send data, receive data, AND HACK DATA. In the corporate world, all that data could potentially be needed in litigation, investigations, due diligence, compliance, or even worse it could be BREACHED. For this committee’s first session, there could be no timelier nor important topic than Cyber Security, as there was most likely another new headline today.

Q: What challenges are new attorneys faced with in the current digital data age?

BN: The “social media” generation has grown up in an environment in which people share far more information about themselves and those with whom they interact than ever before. As lawyers, however, we have an obligation to protect client confidences. Navigating the tension between technology that promotes sharing as a default and our ethical obligations to preserve confidentiality is a challenge.

HR: Volumes of data are multiplying by the nanosecond, along with new ways to create data, and increasingly, more people intent on hacking into the information for a variety of purposes, unfortunately, most of them with nefarious intent. Lawyers are ethically and practically required to have knowledge of these constantly evolving issues, not only to protect their own and their client’s information, but to also to competently advise these issues.

Q: What was the response to the inaugural session?

BN: It was fantastic. We had a good mix of alumni, mostly from the Washington DC area. In addition to enjoying a great substantive program, this event provided a good networking opportunity.

HR: There was a good mixture of new graduate, attorneys at the beginning of their career and experienced attorneys, and a Judge! The response to the program was outstanding. No one looked at their phones for almost an hour, for fear of missing any of the compelling topics such as hack prevention, post hack response, data security, and cyber-crimes and the manner in which they are initiated. There were many questions throughout the program and many people remained afterwards to continue the dialogue.

Q: What type of sessions will be held in the future?

HR: Our goal is to have regular sessions featuring more speakers from the Cyber Security sector, as well as domain subject matter experts in Privacy, Compliance, Discovery, and other leading edge areas of the law. We also plan to have sessions in other markets such as New York, Boston and Philadelphia.

Q: What benefit do these types of sessions provide to alumni?

HR: The most obvious benefit is that alumni will continue to feel connected to GW Law School, and recognize that the school experience and benefits continue throughout their lives. A secondary benefit is the knowledge that these programs will provide, enabling the alumni to enhance their potential of their professional goals.

BN: I agree with Howard. Our hope is that through more programs like this we can engage our alumni and equip them with practical knowledge that they can use in their law practice.


Bernard (Barry) A. Nigro Jr., Esq.
Chair, Antitrust Practice Group – Fried, Frank, Harris, Shriver & Jacobson LLP (Washington, DC)
President – George Washington Law Alumni Association (JD ’86)
Vice Chair, Section of Antitrust Law – American Bar Association

Howard J. Reissner, Esq.
Chief Executive Officer – Planet Data
Chair of Specialized Curriculum – George Washington University Law Alumni Association (JD ’79)

A CEO, a Judge and a Few Attorneys Chat About the FRCP Revisions…..

Practical implications of the recent revisions to the FRCP Rules 26(b)(1) (incorporating proportionality) and 37(e) (failure to preserve)

by Howard Reissner, Esq.

I’ve had many conversations on the newly enacted rule revisions with several defense attorneys, a leading plaintiff’s attorney and a Federal Judge. Each of them had differing thoughts on how these amendments would impact Information Governance re: preservation of data and on the broader scope of Discovery in general.

The new focus on proportionality in Rule 26 was encouraged by the Defense Bar to limit what they perceived as the often broad based, unfocused discovery requests in “asymmetrical” litigation, where a Plaintiff with limited resources could force the larger Defendant to settle the case rather than expend large dollars on the gathering and review of expansive quantities of data. The practical application from the Plaintiff’s point of view is that going forward they must have greater knowledge of the Defendant’s potential sources of responsive data at the outset of the case so as to avoid the claim that the discovery requests are not proportionate to the value of the case, the resources of the parties, and the issues at stake.

The concept of “duty to preserve” addressed in the changes to Rule 37 (e) has received a substantial amount of attention and comment. The basic premise behind the Amendment to this rule is that there would be more clarity to corporations on the issue, allowing voluminous quantities of data to be removed from preservation without fear of sanctions. The Federal Judge was of the opinion that if management and retention policies were properly designed and implemented, it would in fact reduce the risk of possible negative consequences for eliminating data that could someday become responsive to a discovery request. He does feel that there will be varying interpretations of the meaning of “intent” as the trigger for when sanctions may be imposed for failure to preserve.

Several defense attorneys felt that the concept of “reasonable steps” taken to preserve data would be dependent on the sophistication of the party and their resources, especially as data sources from social media and mobile devices continue to proliferate.

As a service provider, we have seen an explosion in the volume and disparate sources of data creation and storage. It is imperative that business entities implement and maintain Information Management systems and policies that are fully defensible under the standard of “reasonableness”.

A Better Document Review Begins With Better Data

Leveraging Pre-Review Analytics to Pinpoint Documents is a Good Start

by Michael Wade, CTO – Planet Data

In today’s environment the demand to get more done, in less time and for less money while striving to achieve higher quality is one that we all frequently hear – and very loudly! 

One effective tool to do just that is email threading analytics.  This often overlooked tool does not only provide significant improvements in efficiency, but it also provides a significant increase in quality.   While this sounds too good to be true, there is a growing body of evidence that this along with some simple changes in your review process will allow you to achieve these goals.   At a recent conference a presenter made a really astute observation: “when you are trying to read 10 books, you would not read a few pages out of each book until you read them all.  You would just read each book in order“.  While in this context this sounds patently obvious, it is exactly what you do when you batch out documents to be coded by custodian. 

Can you imagine trying to fully understand the individual stories of those 10 books if you attempted to do it that way? Why would we expect our reviewers to understand complex chains of communications when they only see parts of the entire chain?  Organizing your data by conversation/topic allows us to present the entire story to your reviewer.  Furthermore, by having the reviewer read only the “inclusive” or the most information rich emails, we can reduce the total number of records that are required to be reviewed.

This process improves your results in several ways:

  • Supporting these technologies in Pre-Review allows you to understand the scope your case more quickly by allowing you to focus in on entire conversations rather than just snippets.  This can be used to improve search term selection, prioritize custodians and concept cluster choices earlier in the process.
  • Improved consistency in coding decisions.  Since reviewers are seeing the entire context, small snippets of a conversation may have a clearer meaning and result in a more consistent and accurate coding calls.
  • Provides a great QA/QC tool to look for inconsistent coding calls by reviewing all the documents in the thread.  In particular reviewing coding decisions on privilege are easier to review and validate.
  • Reviewing by inclusive emails can reduce the number of individual records that have to be reviewed.  Beyond the obvious costs savings, the presentation of the entire conversation to a single reviewer gives them the greatest chance of understanding the nuances of that particular chain of communication.

In its most simple form, email threading is an improved method for organizing the data to make your review process more efficient and effective.  We can further improve on this method by utilizing clustering to group the email threads by topic!   As we alluded to earlier, the main goal is to get the complete story, or conversation to individual reviewers so that they have the best possible understanding of the material that they are reviewing. 

Imagine if you had an automated way to identify all the email threads that are discussing a particular topic like “Financial Auditing Standards”.  You could then focus a few reviewers on that topic.   This gives those individual reviewers the ability to accumulate related knowledge which will result in better and more consistent coding calls. 

With the proper application of email threading and clustering you can zero in on the important documents earlier in your case and your review team will achieve higher coding quality, improved decision making and better efficiency!

1Angela Green, Lockheed Martin at Relativity Fest 2015

Pre-Review or Pay More

shutterstock_120719548 by David S. Cochran

It’s a pretty basic proposition. Reduce data sizes earlier in a matter and you will save money. It’s that simple. But, as the recent presidential debates make clear, there is always nuance to every message.

Cost avoidance, by implementing a data mapping process prior to custodial interviews, ensures that the legal team will know where data resides. This reduces potentially non-relevant data prior to actually collecting it. Then, applying a targeted data collection process reduces the data even further.

So, the data has now been reduced through interviews and collection techniques. What’s next?

There has been great discussion on how predictive coding and other forms of technology can save a client time and money. What’s missing? The nuance. These approaches don’t go far enough early enough in the process. They don’t make as much of an impact as they could at being efficient and reducing costs. And, these approaches are built for large matters and are not a fit for every project.

Traditional early case assessment is not enough. A Pre-Review Technology or “PRT” solution goes above and beyond by including a comprehensive tool set to drastically and efficiently reduce the data volumes earlier in the process regardless of the size.

1. Search completely processed data. Without completely processed data, (embedded objects, image types OCRd, spreadsheets formatted correctly, etc.) there is no confident process to ensure the data is all there to search.
2. Conceptual searching to perform analytics. Applying analytics earlier in the process provides more knowledge about the collection.
3. Email threading. View the conversations of custodians with email and attachment analysis.
4. Mobile data inclusion. Mobile data collection is an emerging component for every matter. There must be a seamless process to collect the data and import it into the PRT solution.
5. Tagging data to promote to a managed review platform. The tagging at this stage can then be loaded to a managed review platform to make the review even more efficient.
6. Detailed reporting. Validate your approach and defensibility. Detailed Search Analysis Reports provide a chain of custody during the culling and filtering process as well as defensibility so you know how you did, what you did.
7. No additional costs. There should be no charge for accessing these tools in a PRT solution.

One or two legal team members can drill down into the data and potentially reduce the data by 90% before it even gets to the expensive managed review portion of the project.

Pre-Review Technology should be used for all types and sizes of matters. Through PRT, a legal team can be more efficient, better understand their data, reduce its size, maintain it for future need, analyze it and do it at significantly reduced costs.

Exego Select is the leader in Pre-Review Technology and incorporates all of these tools and functionality.

Mobile devices are not just for saying hello anymore…

Written by Howard Reissner, CEO at Planet Data

Not many years ago there were basic expectations of personal privacy in the United States. Of course we had the 4th Amendment to the Constitution since 1787, which prohibits unreasonable search and seizure by the government relating to suspected criminal activities. And in 1965 the Supreme Court ruled that the Constitution implied a basic right to privacy from governmental intrusion in Griswold v. Conn., 381 U.S. 479. However, these protections applied only to governmental intrusion, and did not address the issue of privacy protections from corporations, individuals or other entities, with several categories of exceptions, notably health and financial records (e.g. HIPAA, Gramm Leach Bliley legislation).

Before the invention of the internet and mobile devices, there was a general sense that your personal information (e.g. papers and photographs), communications and daily activities (especially in the privacy of your own home) were generally immune from third- party intrusion, save for the small likelihood of civil litigation discovery. Neither the government (without a warrant) nor parties to litigation could simply invade your home or office and view your files and personal data.

Then we began to create information in electronic formats, such as word documents, and a bit later, email. This data was stored either on computer hard drives or in the case of email, at third party storage facilities. Personal and employment related electronic data were generally separate; created on different devices, and maintained in different storage locations.

So, what has caused the separation of personal and company information to erode over the past decade? In a nutshell, the rapid evolution of mobile devices and all of the accompanying technology has changed the manner in which data is both created and stored. Today, information – often both personal and work related – can reside on a single device (either employer provided or employee owned) that is in effect a repository of enormous amounts of information about the user and others.

In this new environment attorneys face significant new challenges when utilizing mobile devices for creating, storing and transferring confidential client information.  How should they counsel their corporate clients regarding policies and procedures governing the use of mobile devices that may contain vast amounts of both company and personal information?

The ABA Model Rules of Professional Conduct (Model Rule 1.1) require attorneys to maintain the requisite skill and knowledge to competently represent a client, which includes the benefits and risks associated with relevant technology.  The requisite level of knowledge should extend to protecting the confidentiality of client information (Model Rule 1.6); counseling clients on Mobile Device policies; and the myriad issues relating to the identification, preservation, search and production of information during the discovery process.

The protection of the confidentiality of client information is of paramount importance. Attorneys must be proactive in establishing physical and administrative controls to prevent the inadvertent unauthorized access or loss of this data.  A key first step is to make certain that client data is physically segregated and access restricted, with strong administrative controls implemented within the firm. These controls should include policies, procedures, training and ongoing monitoring.  Technical measures such as firewalls, virus protection, encryption and incident response protocols for mobile devices also need to be addressed.

Attorneys also must be capable of properly advising their clients on issues of data privacy and security as it relates to corporations and employees.  With the proliferation of mobile devices (both employer supplied and BYOD) in recent years, the overlapping of personal and work related data has the potential to intrude on the individual’s privacy while also potentially causing security issues for the employer.

While in general under state law employers have a right to monitor employee email, it is advisable for the employer to have a corporate policy in place to give clear notice to the employee that information created or disseminated on devices utilized in the work environment do not enjoy an expectation of privacy. While a few court decisions have upheld the right of privacy in specific situations (e.g. email to individual’s attorney on personal matter), the basic premise of minimal privacy rights in this context have been upheld. Nonetheless, the employer should also receive employee consent regarding mobile device tracking, incident protocol (i.e. remote wiping, geo-location), and actions to be taken upon termination of employment.

The employee’s expectations of privacy must be established by the employer in a clear, concise policy.  The policy should denote permitted uses of both employer provided devices and employee owned (BYOD). The policy should describe employee training, usage, and tracking procedures. It should also clearly state protocols that will be implemented if there is a risk of data breach, such as a lost or hacked device. In the event of anticipated litigation in which a preservation order must be followed, it should inform the employee of the procedures that will be utilized to preserve the data. Employee consent to the policy should be in writing, and should waive any action against the employer for loss of personal data in the event that the device needs to have the data wiped.  Finally, procedures and control of the data upon employee termination should be acknowledged in the policy.

These policies and procedures should be regularly evaluated and updated, as new technologies and monitoring software are continuously enhanced.

The growing inclusion of mobile device data in the litigation discovery process is an additional source of potentially relevant information that must be addressed by lawyers.

Pursuant to FRCP 34 (a) 1, items under “possession, custody or control” of the responding party (e.g. corporation) are discoverable. See: E.E.O.C. v. Original Honeybaked Ham Co. of Georgia, Inc., 2012 WL 5430974 (D. Colo. Nov. 7, 2012), where the court allowed discovery of class members’ social media, text messages and email.

Recent cases addressing the issue of preservation of potentially responsive data on mobile devices have levied sanctions on attorneys who failed to identify and preserve client data (see: Small v. University Med. Ctr. 2014 U.S. Dist. LEXIS 114406 (D. Nev. Aug. 18, 2014; In Re Pradaxa (Dabigatran Etexilate) Products Liability Lit., 2013 BL 347278 (S.D. Ill. Dec. 9, 2013).

Clearly, we are in the midst of a vast expansion of the potential sources of data subject to the discovery process, with new methods of data creation seemingly materializing by the week.

The proliferation of the use of mobile devices in the workplace has radically altered the boundaries between personal and company information. Both employer and employee need to be aware of how this dynamic could affect the relationship in unintended ways.  This is a rapidly evolving intersection of the law, technology and human interpersonal interactions. They are all moving at different speeds, and are constantly being realigned.

Sensitivity to these issues would be a wise decision.

Guest Blog – An Interview with William Wang of the AABANY

Planet Data is proud to announce that we are the exclusive eDiscovery vendor partner of the Asian American Bar Association of New York (AABANY) for 2015!

We recently had the chance to sit down with the organization’s President, William Wang at their Annual Dinner. William shared his thoughts on the AABANY, recent eDiscovery trends and new challenges the legal industry faces today.

PD: Congratulations! We understand your term as President of the AABANY began April 1, 2015. What goals do you have for its members?

WW: I am very excited to take on the challenge of being AABANY President in 2015-2016. AABANY has grown tremendously in the past few years and I follow the footsteps of many great past AABANY presidents. Our membership recently eclipsed 1,100 in our last fiscal year. In terms of goals, I will focus on increasing member engagement. While our membership has grown, I would like our new members to get involved with our committees, which are the backbone of our organization. With a diverse and engaged membership, we can continue to thrive as one of NYC’s specialty bar associations. We have big plans for our Fall Conference in 2015, which will be hosted by Cleary Gottlieb, and some special community events planned as well. I don’t want to give too many spoilers, but this will be a very exciting and cutting edge year.

PD: A recent survey reported that law firms are seeing an increase in total case load over last year and that those cases are much larger than ever before. How does this affect the eDiscovery process from your point of view?

WW: I think the growth in the size of cases just makes an efficient e-discovery process that much more important. I’ve worked on enormous-sized cases where discovery takes several years because of the terabytes of data exchanged. If the process is run efficiently and appropriately, things can move at a much more palatable pace.

PD: Do you feel the upcoming FRCP rule changes will have any effect on discovery and litigation moving forward?

WW: Yes. I believe the new FRCP rule changes will focus on speeding discovery up, making sure e-discovery is proportionate to the needs of each case, and ensuring compliance with maintaining ESI. Hopefully, the process will be improved, with discovery being narrowly tailored enough to allow cases to proceed and not so broad as to bury matters in litigation for years and years. I do believe the FRCP is being modernized to reflect the unmistakable influence of ESI and eDiscovery in modern litigation.

PD: What are the common challenges you face when dealing with international cases with regard to privacy, language or data?

WW: (I don’t deal in international cases very often). The challenges I face are usually language and when clients come from foreign countries and their rules with respect to civil litigation are different. Translations can also be challenging, when you are dealing with handwritten notes scanned into PDFs. The collection of data is tricky of course, in foreign language, because you are really limited in what you can do with respect to search terms.

PD: Do you feel law schools are generally preparing future attorneys for the technological life they might eventually lead at a law firm?

WW: No, I think law students are not exposed enough to e-discovery. I think a class covering this topic as part of a basic litigation skills course would be great and needed.

PD: Please offer a few words of advice to tomorrows litigation attorney.

WW: Think strategically. You may be bogged down in a document review and you may be drafting basic responses to discovery requests, but always think about the big picture. The documents and data play a major role in strengthening or weakening your case through discovery. If you case is strengthened, your client gains leverage in settlement negotiations and of course at the summary judgment stage. Think big picture, and think about how certain search terms can accurately and efficiently net you the correct documents without getting you terabytes of useless data. Prepare, prepare, prepare. Think about the right custodians and search terms before delving deep into discovery. Go broad to capture what you need, but tailor requests narrowly in order to not be inundated with data. Good Luck.

PD: How much snow did you get while at Binghamton and was it more or less than we’ve had in New York City this year?

WW: It snows in Binghamton until May. People escape from hibernation around Memorial Day. It snowed on the first day of Spring in NYC!

PD: What was the first concert you ever went to?

WW: I didn’t go to a lot of concerts when I was young. I was more into sports than music. My first concert was in college. I drove with friends to Ithaca and Cornell University to attend A Tribe Called Quest concert.

More Cases With More Data Create More Challenges

Written by Howard Reissner, CEO at Planet Data

Recent Industry reports have emphasized the issue of law firms claiming higher volumes of eDiscovery case workload and larger raw data sets.  The underlying theme is that attorneys and support staff are undoubtedly and increasingly stressed by this situation.
This information has made me consider why this is occurring and what does this trend portend for corporate clients, law firms and litigation support vendors?

To address the first point, these trends are likely correlated to the improvement in the US business environment, low interest rates, and the ever increasing volume of data creation and retention.

I have heard from many industry participants that towards the middle of this year the pace of litigation began to significantly increase.  Some of this activity was due to increased corporate budgets for discretionary litigation (especially in the IP area) and an additional bump was derived from the flurry of M & A activity  resulting from extremely low interest rates and the ability to finance acquisitions on favorable terms (i.e.: lots of cash sitting around earning nothing).

These combined factors have enhanced the competitive position of law firms and their support teams that can properly handle and manage these complex data collections in an accurate and timely manner.  The life cycle timeframe for many of these cases is often quite truncated.  What has changed is the raw size of the data collection, and the complexity and diversity of the data formats (i.e.: cell phone, text and social media originations).  And, believe it or not, we are seeing the same trend with Lotus Notes databases, which still gives many data processor’s headaches.

So it is no wonder that the workload has increased for law firms and their vendors.  Today law firms are challenged greatly by not only more work, but finding a way to do that work with the same amount (or fewer) staff.   Unit pricing has declined significantly over the past two years, but demand for a high level of client service and support has not.  With the music playing much faster now, it will be interesting to see who can dance at these speeds.  People expertise, efficient work- flow, and a scalable technology platform (that you own, can control and customize for specific solutions) will be more crucial than ever for success.  Clients will not be very tolerant of missed deadlines, data processing errors and a declining level of client service and support.

So in sum, what advice would I offer those firms that are facing the  new paradigm of much larger (and complex) raw data sets, tighter timelines, and financial pressures to reduce (or not increase) the net costs of discovery?  Whether or not you decide to bring the entire process in-house or outsource to a third party vendor, the key issues are the same.  Does your staff have the expertise, technology platform and work-flow than can quickly and accurately identify, process, search and produce large volumes of complex data? Is the system flexible (i.e.: can it quickly incorporate new types of information) and is it scalable, so that ever increasing volumes of data can be managed without slowing down the process, thereby failing to meet deadlines? And most importantly , can you provide a high level of on-going project management while unit pricing for all of these functions continues to face market pressures?

It could get interesting, very soon.

Data Retention, Storage, and the IRS

Observations about the political issues relating to the Proposed Changes to FRCP Rule 37

Written by Howard Reissner, CEO at Planet Data

Over the past few weeks we have seen the issues involving the IRS’s inability to produce emails pursuant to a Congressional inquiry re: Lois Lerner and other IRS staffers grow in complexity. The initial reaction from much of the public has been disbelief that this data was not properly retained and archived, especially in light of the fact that a litigation hold should have been implemented when a lawsuit was filed against the IRS by a tax exempt group, in 2010! The agency claims that Ms. Lerner’s computer crashed in 2011, well after the time the relevant data should have been preserved. I have read multiple explanations of why the IRS’s claim to no longer have that data could in fact be valid, due to the utilization of outdated storage systems and a lack of funding to acquire additional resources to retain the emails on a network wide basis. As such, the IRS is sticking with the claim that the only copy of the emails were on the computers of Ms. Lerner and her associates.

What I find most interesting is that the Congressional inquiry into this matter is being led by the Republicans. They are upset that the information that they seek to further their review of possible improper IRS conduct is being hampered by a failure to adequately maintain a large, complex data creation and storage enterprise.

Over the past year, there have been numerous comments and policy positions taken as the new proposed amendments to FRCP Rule 37 winds its way through the legal and political process. Not surprisingly, the Republicans are sympathetic to the final proposed amendments which should enable corporations to more comfortably reduce data preservation expense and lessen the risk of sanctions when reasonable steps have taken to preserve relevant data. I do find a bit of irony in the fact that the IRS is claiming that its failure to properly identify and retain the emails sought by the Republicans was due to a lack of adequate resources, thereby inadvertently allowing the destruction of back-up tapes that may have contained the requested information.

So, to date, the Congressional inquiry has been hampered by the inability to obtain the information requested of the IRS. This is the type of argument made by Democrats who believe that the proposed FRCP Rule 37 will make it more difficult for plaintiffs to obtain potentially relevant data from corporate defendants.

All of this should make for some interesting developments over the next several months as these issues mature.

Read more from Howard ReissnerDownload Planet Data’s latest legal analysis — a candid review of the proposed amendments to the FRCP Rule 37 — authored by nationally recognized consultant, Anne Kershaw, Esq., with commentary from eDiscovery expert, Howard Reissner, Esq. and prominent industry analyst, David Horrigan, Esq.