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

6/19/2019 Building Tomorrow’s Business: What does digital transformation mean for middle-market companies in 2019? – Please join Gary Bie of Stony Brook Medicine and Malcolm Cohron of BDO on 6/19 at noon ET for a webinar examining the results of BDO’s inaugural Digital Transformation Services survey.

6/20/201906/21/2019 Duke Law Bolch Judicial Institute proportionality conference – Please join us on 6/20 and 6/21 in Arlington, VA for the Duke Law Bolch Judicial Institute invitation-only Distinguished Lawyers conference on Evaluating the 2015 Rule 26 Discovery-Proportionality Amendments and Bolch-Duke Guidelines and Best Practices.

E-DISCOVERY

Office 365 video series – Tom O’Connor of the Gulf Legal Tech Center and Rachi Messing of Microsoft are putting on a video series on the e-discovery features in Office 365. Each episode is a little under ½ hour long. Episodes so far:

• Office 365 – Part 1 – eDiscovery Overview
• Office 365 – Part 2 – Information Governance
• Office 365 – Part 3 – Litigation Holds
• Office 365 – Part 4 – Collection and Processing
• Office 365 – Part 5 – Search
• Office 365 – Part 6 – Search Part 2
• Office 365 – Part 7 – Analytics

Bitcoin discovery – Jordan Bowne of Burns & Levinson offers thoughts on the discovery of cryptocurrency in a two-part series:

• Discovering Digital “Dollars” in Divorce, Part 1: offering a basic overview of virtual or “crypto” currencies
• Discovering Digital “Dollars” in Divorce, Part 2: looking at some of the discovery tools to use in a divorce proceeding to better understand a divorcing spouse’s virtual currency activity and portfolio

CYBERSECURITY & DATA PRIVACY

Congressional Research Service report – The non-partisan Congressional Research Service has published a 27-page report, Technological Convergence: Regulatory, Digital Privacy, and Data Security Issues, that described technological convergence and for three areas of convergence discusses issues and potential congressional policy options. The three areas are: regulatory (regulating converging technologies and evolving companies); digital privacy (current data protection laws, data privacy and data security, and data brokers); and data security.

More CCPA –

• Is the CCPA Too Burdensome … for Consumers?
  Scott Bloomberg (Foley Hoag) (June 3)
• California Measure Would Apply CCPA To Data Brokers
  Odia Kagan (Fox Rothschild) (June 4)
• Where Are We Now? – Taking Stock of CCPA Amendments After May 31 Legislative Deadline
  (Akin Gump) (June 4)
• Attempt to Expand CCPA Private Right of Action Fails, While Bills Exempting Employee Data and Otherwise Refining CCPA Advance
  Alan Friel, Niloufar Massachi, and Taylor Bloom (BakerHostetler) (June 5)
• California Consumer Privacy Act Update: Assembly Approves 12 Amendments
  Ashley Shively (Holland & Knight) (June 6)
• An Updated Deep Dive into Proposed Amendments to the CCPA
  David Stauss Husch Blackwell) (June 9)
• Top 10 Things to Do to Prove CCPA Compliance (7 Months to Go)
  (Womble Bond Dickinson) (June 10)

Nevada updated privacy law to take effect in October – Odia Kagan of Fox Rothschild reported that Nevada’s updated privacy law will go into effect on October 1.  Current law requires operators of Internet websites or online services which collection certain PII about consumers in Nevada to make available a notice. The updates revise the definition of “operator”, require operators to establish designated request addresses consumers may use to request covered information not be sold, defines “sale”, prohibits operators who have received requests from selling covered information, and authorized the Attorney General to seek injunctions or civil penalties for violations.

Nevada law offers new but still constrained right – Alan Friel and Shea Leitch of BakerHostetler wrote that Nevada Senate Bill 220, recently signed into law, updates Nevada Revised State 603A to provide consumers a new right to opt out of the sale of their data – the first law in the US granting consumers that right. They remark that the new Nevada right is far more circumscribed that similar rights set forth in the CCPA or the GDPR.

Texas consumer data privacy bills stall – Rachel Ehlers of Jackson Lewis noted that the two Texas proposed consumer data privacy bills have stalled.

Sedona Conference cross-border commentary – The Sedona Conference has published The Sedona Conference Commentary and Principles on Jurisdictional Conflicts over Transfers of Personal Data Across Borders, Public Comment Version. The comment period is open through Aug. 10.

LEGAL TECHNOLOGY & DIGITAL TRANSFORMATION

Wilson Sonsini in the CCPA app business – Roy Strom of Bloomberg law reported that Wilson Sonsini hopes to generate millions of dollars in revenue with a CCPA compliance app recently published by the firm’s SixFifty tech subsidiary, launched in February. The first week’s sales exceeded $100,000.

PwC Scale | LawTech cohort – According to Artificial Lawyer, the first PwC Scale | LawTech cohort is:

• AuditXPRT: AI solution for regulatory compliance and audit
• Capnovum: Cognitive compliance management for financial institutions
• Cognitiv+: Using AI to get legal insights from contracts, understanding your legal obligations
• Contract Mill: Easy to implement, powerful SaaS solution for document automation
• Lexical Labs: Intelligent contract review
• Lexsnap: AI powered legal Q&A platform
• Scrive: Premium eSign solutions for any business to modernise workflows, across all channels
• Thedocyard: End to end deal management platform to manage lifecycle of corporate or commercial transactions

Legal design – Charlotte Baker, a legal designed at Wavelength.law, has published a four-part series on “legal design”:

• Legal Design Explained: Part 1 – What is Legal Design?
• Legal Design Explained: Part 2 – Why do we do Legal Design?
• Legal Design Explained: Part 3 – How do we do legal design?
• Legal Design Explained: Part 4 – What does legal design look like?

Test data to be posted for legal AI startups – Artificial Lawyer reported that Singapore’s newly launched legal tech accelerator, GLIDE, will put in place ‘curated data’ provided by law firms.

E-DISCOVERY CASE LAW

Recent e-discovery decisions

4/12/2019 – U.S. District Court Judge John Coughenour denied plaintiff’s motion for sanctions. In response to plaintiff’s discovery demands, defendant initially produced some but not all of contents of a PST file – emails from 12/2014 to 3/24/2016. Plaintiff took issue with the production and defendant agreed to produce the remainder of the PST. Defendant gathered emails from various locations, deduplicated them, loaded them into Relativity, and from there produced the entire contents of the PST file. Plaintiff contended that defendant spoliated the email ESI by not producing the entire PST “in whole, untouched, pristine condition” as well as by producing only part of the contents initially and the rest later. The Court rejected these arguments, finding that ” bifurcation of the .PST file does not constitute destruction of the relevant evidence therein sufficient to support Plaintiff’s claim of spoliation” and that “Plaintiff has not established that Defendant acted with a culpable mind when it initially disclosed only part of the .PST file, as Defendant believed it had complied with Plaintiff’s discovery request by producing the relevant part of the .PST file.” Plaintiff also argued that defendant spoliated the PST because some files were still missing after defendant produced the complete PST. The Court rejected that claims on several bases, including that plaintiff had not met and conferred with defendant in this issue, had not established that the files could not be obtained through further discovery, and had not offered evidence that defendant acted with ill intent. Neely v. The Boeing Company, Case No. C16-1791-JCC (W.D. Wash. April 23, 2019).

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