Weekly Trends Report – 1/29/2020 Insights

Insight into where e-discovery, information governance cybersecurity, and digital transformation are heading – who is doing what now or in the future, what works and what doesn’t, and what people wish they could do but can’t – gleaned from recent publications

ABOVE THE FOLD

Legalweek events – Join me at the following events during Legalweek:

• EDRM Pro Bono Project In-Person Kickoff Meeting
  Mon 2/3, 5:00 – 5:30 pm, Ruth’s Chris Steakhouse
• EDRM Legal Tech Jumpstart with HaystackID
  Mon 2/3, 5:00 – 7:30 pm, Ruth’s Chris Steakhouse
• Second Annual Legalweek Walk/Run and Breakfast
  Wed 2/5, 6:15 – 8:15 am, New York Hilton Midtown
• EDRM Pro Bono Project In-Person Kickoff Meeting
  Wed 2/5, 4:00 – 4:30 pm, Ruth’s Chris Steakhouse
• Drinks With Doug & Mary
  Wed 2/5, 4:00 – 6:00 pm, Ruth’s Chris Steakhouse

2020 UF Law E-Discovery Conference – Register now to join me in person or via livestream on March 19 as I get together with Bill Hamilton and a host of new and returning speakers for the 8^th Annual University of Florida Law E-Discovery Conference in Gainesville, FL.

BDO knows CCPA – BDO’s California Consumer Privacy Act resource page enables privacy executives to stay abreast of the impending regulation and learn about overarching privacy and governance considerations in one convenient location.

ELECTRONIC DISCOVERY

New document production obligations go into effect in California civil matters – Elisa M. Cariño of Proskauer reported that effective Jan. 1, 2020, the California Code of Civil Procedure now requires “[a]ny documents or category of documents produced in response to a demand for inspection, copying, testing, or sampling shall be identified with the specific request number to which the documents respond.” Cal. Civ. Pro. § 2031.280(a). Cariño noted that the California Senate Judiciary Committee is of the view that the rule, which applies to all pending matters as well as new ones, “will provide more streamlined and responsive document production, if at the slight expense of the producing parties.” Experience suggests otherwise.

Judge Grimm on good faith in discovery – In an article published in the Winter 2020 issue of the ABA Litigation Journal, U.S. District Judge Paul Grimm argued that “much of the unpleasantness that characterizes discovery can be avoided by following both the letter and spirit of a single rule of civil procedure—one that has been part of the rules since 1983, yet seems to have been forgotten or overlooked by lawyers and judges. That rule is Federal Rule of Civil Procedure 26(g)…”

Bill Hamilton on the need for better use of social media in e-discovery – In another article in the same publication, University of Florida Levin College of Law professor Bill Hamilton implored lawyers and e-discovery software providers and vendors to pay closer attention to – and make better use of – the discovery of social media content.

Active Learning activity – In an article about Relativity’s Active Learning TAR tool, the company’s Jacque Flaherty noted that since Relativity launched the capability in Dec. 2017, the tool as been used to make predictions on over 750 million documents.

Emoji law – Santa Clara University School of Law professor Eric Goldman published an update to his report on the number of cases referencing “emoji” or “emoticon” – 101 in 2019, nearly double the number from the year before.

Legalweek overview – Doug Austin of CloudNine has published an overview of his take on the highlight’s of next week’s Legalweek.

CYBERSECURITY & DATA PRIVACY

Cyberinsurance costs rising – Sharon Nelson of Sensei Enterprises noted a recent report from Insurance Journal that  U.S. insurers are ramping up cyber-insurance rates by as much as 25% and trying to curb exposure to vulnerable customers after a surge of costly claims.

US retailers blocking European website visitors – David A. Zetoony reported that according to a recent study performed by his lawfirm, BCLP, 25% of Fortune 500 retailers had blocked their websites from being visited by European IP addresses – demonstrating the impact of the GDRP.

IAPP US privacy law comparison tool – Mitchell Noordyke of Faegre Baker Daniels maintains a US State Comprehensive Privacy Law Comparison section on the IAPP website. The section tracks proposed and enacted comprehensive privacy bills from across the country.

New version of Washington Privacy Act – Scott T. Lashway and Matthew M.K. Stein of Manatt reported that a new version of the proposed Washington Privacy Act, Senate Bill 6281, has been introduced in the Washington state Senate. The new version combines key features of the CCPA and the GDPR.

New data breach laws – Keisha M. McClellan, Melissa K. Ventrone of Clark Hill put together a list of seven data breach updates for 2020:

• California: 1/1/2020 CCPA went into effect
• Illinois: 1/1/2020 SB 1624 began requiring businesses to notify state AG of breaches involving more than 500 people
• Oregon: 1/1/2020 SB 684, the Oregon Consumer Information Protection Act, expanded scope of data breach notification rules for vendors
• Texas: 1/1/2020 HB 4390 required notice of breach to all affected parties within 60 days of determining a breach has occurred and for incidents involving 250 Texas residents or more requiring notice to state AG
• Washington: 3/1/2020 HB 1071 will expand definition of personal information and reduce notification window
• New York: 3/21/2020 SHIELD Act data security requirements will take effect
• Maine: 7/1/2020 LD 946, An Act to Protect the Privacy of Online Customer Information, will become enforceable

LEGAL TECHNOLOGY & DIGITAL TRANSFORMATION

Law department operations survey results – The results of the 2019 E-Discovery Sanctions Case Law Update are available.

E-DISCOVERY CASE LAW

Recent e-discovery decisions

1/8/2020 – Special Master Dennis Cavanaugh (U.S.D.J., Ret.) issued an order and opinion stating that he would not compel defendants to use technology assisted review, and instead adopted the search term protocol as modified by the special master. Plaintiffs proposed that defendants use TAR to identify responsive documents. Defendants disagreed, arguing there is no authority for imposing TAR on an objecting party and asserting that because the case presents a number of “unique” issues TAR would not be appropriate. Instead, defendants contended, they should be allowed to use their preferred custodian and search term method. The special master agreed regarding the lack of authority and agreed, as well, that responding parties are best situated to determine the procedures, methods, and techniques appropriate for them to use. At the same time, the special master stated that he would not look favorably on any arguments from defendants as to burden of discovery requests. In re Mercedes-Benz Emissions Litigation, Case No.: 2:16-cv-881 (S. N.J. Jan. 8, 2020).

ANNOUNCEMENTS

ADDITIONAL ARTICLES

UPCOMING EVENTS

Conferences, webinars, and the like can provide insight into where e-discovery, information governance cybersecurity, and digital transformation are heading

1/30/2020-3/6/2020 EVENTS