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

See past Weekly Trend Reports

EDRM Annual Workshop – Join us for the Duke/EDRM Annual Workshop to be held May 15-17 at Duke Law School in Durham, NC. The annual Duke/EDRM workshop brings together highly motivated judges, practitioners, consultants, service providers, and software vendors to work collaboratively on exciting and challenging ediscovery projects that impact the industry and the profession.   Members attend to pending projects, provide their collective wisdom and guidance on challenges, problems, and issues encountered in ongoing projects, and propose and discuss new projects.

4/15/2019 post – Exterro and Duke/EDRM Judges Survey 2019 Series: Part 2, Taking Affirmative Action to Address E-Discovery Problems

E-DISCOVERY

It’s all about the story – Jury research consultant Drury Sherrod argues in a recent ABA Journal article, When it comes to jury trials, should you tell a story or stick to the facts?, that the answer should be obvious: go with the story. Although he does discuss where to find those facts, the answer should be obvious as well: in the enormous volume, depth, and breadth of ESI available through discovery.

INFORMATION GOVERNANCE

Sedona IG commentary – The Sedona Conference has published The Sedona Conference Commentary on Information Governance, Second Edition. This is the final version of the document, published for comment on October 2018. Eighty-five pages long, it sets forth the 11 principles that comprise The Sedona Conference Principles of Information Governance and contains related commentary and appendices.

CYBERSECURITY & DATA PRIVACY

GDPR handbook – White & Case has published an on-line guide to the GDPR, Unlocking the EU General Data Protection Regulation: A practical handbook on the EU’s new data protection law. The handbook contains 19 chapters: Introduction; Complying with the GDPR; Subject matter and scope; Territorial application; Key definitions; Data Protection Principles; Lawful basis for processing; Consent; Rights of data subjects; Obligations of controllers; Obligations of processors; Impact Assessments, DPOs and Codes of Conduct; Cross-Border Data Transfers; Data Protection Authorities; Cooperation and consistency; Remedies and sanctions; Issues subject to national law; Relationships with other laws; and Glossary.

CCPA amendments –

• On April 10, Senate Bill 561 was approved by the California Senate’s Judiciary Committee. The bill would expand the CCPA’s private right of action to any violation of a consumer’s CCPA rights, remove the existing 30-day cure period, and eliminate businesses’ right to consult the AG’s office regarding compliance, according to a Hogan Lovells update by Mark Brennan, Britanie Hall, and Julian Flamant.
• On April 12, Assembly Bill 1760 was revised to remove a provision that would have expanded the CCPA’s private right of action to apply to any CCPA violation, according to the same Hogan Lovells update. Remaining in the bill are other changes such as requiring opt-in consent for businesses’ sharing of consumer data and expanding consumers’ right to delete data held by businesses.
• Also on April 12, Assembly Bill 25 That bill would narrow the CCPA definition of “consumer”, the implications of which are discussed by Deborah George of Robinson+Cole.

Other data privacy action at the state level – Other states continue to push data privacy initiatives. These include:

• Colorado, BD19-1289 Consumer Protection Act, under consideration.
• Massachusetts, S.120, An Act Relative to Consumer Data Privacy, referred to Joint Committee on Consumer Protection and Professional Licensure.

New biometric proposals – Robyn Feldstein and Melinda McLellan of BakerHostetler write that the new biometric data laws have been introduced. They include:

• France: Model employee biometric regulation from the French data protection authority, La Commission nationale de l’informatique et des libertés, published in March.
• US Federal: The Commercial Facial Recognition Privacy Act of 2019, introduced in March.
• Florida: The Florida Biometric Information Privacy Act, Senate (SB 1270) and House (HB 1153) versions, both introduced in March.
• New York City: A local law, Int 1170-2018, requiring businesses to notify customers of biometric identifier technology, introduced in October 2018.

LEGAL TECHNOLOGY & DIGITAL TRANSFORMATION

Tom Bruce, co-founder of Cornell Law School’s LII, retiring – In 1992 Tom Bruce and Peter Martin of Cornell Law School co-founded the Legal Information Institute, a truly ground-breaking initiative. Bob Ambrogi has more details in his End of an Era post.

Law firm AI roundtable – In the first installment of a two-part article, seven panelists discuss the directions they think laws firms will head with artificial intelligence, including adoption rates, the extent to which law firm leaders understand what firms can do with AI, and the impact made by implementing AI.

Legal tech not really designed for lawyers? – As reported by Legaltech News author Frank Ready, according to results of a recent survey by Intapp, although attorneys want legal technology that will help them in their practices they don’t feel what they get meets that need. In its press release, Intapp states that “46 percent of UK lawyers surveyed are using technology that does not meet their needs”.

E-DISCOVERY CASE LAW

Recent e-discovery decisions

3/27/2019 – U.S. District Judge Michael H. Simon denied as untimely plaintiff’s motion seeking sanctions for spoliation of ESI.  More than two years elapsed between when plaintiff learning about the destruction of the ESI and the date when plaintiff brought her motion. To arrive at this conclusion, the Court looked at five timeliness factors and found plaintiff wanting. The five factors are: (1) how long after close of discovery the spoliation motion is made; (2) the temporal proximity between the spoliation motion and any motions for summary judgment; (3) whether spoliation motions are made on the eve of trial (a bad thing from the POV of those seeking sanctions); (4) whether there were any deadlines in the Rule 16 scheduling order governing filing of spoliation motions; and (5) the merit of the filing party’s explanations for why it did not file earlier. Wakefield v. Visalus, Inc., No. 3:15-cv-1857-SI (D. Or. Mar. 27, 2019).

UPCOMING EVENTS

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

4/18/2018-5/10/2019 EVENTS

ANNOUNCEMENTS

ADDITIONAL ARTICLES