eDiscoveryDaily

By Rick Clark

Spending the past 20+ years in forensics, eDiscovery, and investigations has kept me in a legal conference circuit lane, but this week I stepped into a new and interesting adjacent world: information technology leadership in public service. This conference is formally called the California Public Sector CIO Academy and its organizer, e.republic, hosted over 800 attendees from all over the state.

When preparing to attend the conference, I reviewed the agenda, speakers and keynotes and was pleasantly surprised that most of the curriculum was focused on personal and professional development, leadership upskilling, and public speaking advice. At first, I wondered why there wouldn’t be deep dives into generative artificial intelligence, or the latest in IT strategies and technology, but rather the focus was dominantly professional development with themes like making a difference, skilling up in career and communication in today’s CIO role and mastering executive presence to name a few.

My highlights could easily end up being a long form article after taking pages and pages of notes, but my favorites are the following standouts that all hover around personal and professional development.

The keynote, Guy Kawasaki, formerly of Apple, a Silicon Valley venture capitalist and Chief Evangelist of Canva and Author of “Think Remarkable” enthusiastically set the tone for the conference with some incredible insights in how we can best make a difference in our career and personal lives.

His list of 10 keys to making a difference were all gold, but what especially stood out to me were:

• Work backwards when building a platform, service, or process. Start with what you know the customers want. The process allows a customer-centric focus from the beginning. This process can be even as simple as trying to address change management in deploying a new process or platform or can be a new public facing experience like what the California Department of Motor Vehicles completed with their website. This takeaway mirrored a similar example discussed throughout the conference with Amazon writing the press release of the platform they are beginning to build.
• Go See; Go Be. As a creator of a new process or platform, continue to have the team go through the customer/user journey. Be the customer and work through the same experience the end-user will be journeying.
• Get Unique and Valuable. The best position to be in is when your product or service is both unique and valuable. For example, if you are rolling out a new platform and it is just unique, but has no value, it will be near impossible to get off the ground.

The breakout session that I attended first was titled “The Expanding Realm of Today’s CIO,” with Maisha Dottery, the CIO of the Department of Community Services and Development with the State of California moderating. Speakers included state-level representatives Thomas Boon, CIO, Governor’s Office of Business and Economic Development (GO-Biz); Don Foley, Chief Information Officer, Deputy Director, Office of Environmental Information Management, Department of Toxic Substances; Quentin Wright, CIO, Chief Information Officer, Department of Technology; Calvin McGee II, CIO Chief Information Officer, Department of Real Estate; plus Michael Rockstein, Director, Consulting Services, CGI and Shaw-chin Chiu, IBM, Managing Client Partner.

The lively discussion had an engaging flow. Panelists first covered practical approaches to understanding the evolution of technology in the past 10 years before transitioning to the evaluation of emerging technology to homing in on the strategic or tactical aspects of department growth.

Boon stated that IT doesn’t hang on to technology like they used to 10 years ago, as now they must keep asking “what’s next” to ensure they are keeping up to date. He even went further to say that he blocks out Wednesdays as “vendor day” to ensure that he is up to date with the evolving technology offerings.

McGee echoed a similar sentiment by saying that it used to be about “the building,” but in today’s remote work lifestyles that people and technology are no longer just in the building, with many platforms moving to the cloud.

The question was then posed as to how remote work has impacted staff and departments. Don Foley emphatically stated that communication must be more intentional as in-office interactions are more available, whereas remote workers may not seem as accessible.

Lastly, the question was posed: is a strategic or tactical focus necessary for proper departmental growth? The response from McGee was that there needs to be focus on both, but individually. This is done by selecting those team members who will focus on strategic growth and direction while others are tactically getting the tasks done to get the organization there.

The breakout session discussion on “Mastering Executive Presence” danced between personal, interpersonal, and professional development. This session was moderated by Mike Driessen, VP at Government Technology and state-level panelists Christine Blake, Product Manager, Health and Human Services Agency, Center for Data insights and Innovation; Michael Muth with the same agency and Sam Silva, CIO, Office of Technology Services, Department of Pesticides Regulation.

The panel relayed points of success that began with Muth discussing how public-facing projects always have a human-centered design in mind. If IT can see how effective it is in the field, it can translate that effectiveness to the screen when developing web-based solutions. Blake emphasized the importance of IT leadership pulling together the programmers to develop a positive end-user experience that builds trust with the public. Silva offered to ask the end-users to share their stories, so that they can understand the challenges that need to be solved.

After the practical discussion on product and project management, the conversation moved to soft-skill development and laid out practical ways to improve your communication skills and interpersonal relationships, including the following points:

• Christine Blake:
  • Be an active listener (not waiting for your turn to talk) and that will help you build trust and accomplish goals with that relationship
  • When speaking with executives, communicate at a high level only. Getting into the details will almost guarantee a loss of interest
  • Leverage your emotional intelligence and pay attention to non-verbal communications by how people are responding to you and your message. If they are looking away or at their phone, find a way to get them to engage
  • Being vulnerable shows strength rather than weakness because it is difficult to do, and people will respect this
• Michael Muth:
  • Speak in a way that your audience will understand…don’t speak above or below your specific audience whether it is one person or a group.
  • Working virtually has allowed most of us to multitask during meetings and will take some learning to not do so when getting back in person.
• Sam Silva:
  • Continually ask for feedback so you can grow personally. Have a growth mindset
  • Be intentional (with your interactions) and don’t multitask. Doing so can show your respect for the person who is talking
  • Bring joy to the people around you regardless of position, education, or any other factor

Many more insights were shared on day 2 on effective leadership in the technology space, which we will include in a future blog.

If you work in city, county or state government and are interested in learning more about how CloudNine can help speed your response to public records requests, contact us today to learn more.

About the Authors

Rick Clark is VP, Strategic Partnerships at CloudNine and has 20+ years of experience in forensics and eDiscovery. Focused on innovation and education, he co-founded ESI Analyst, now CloudNine Analyst, as well as Wave Software and the Master’s Conference.

Since the inception of legal processes in ancient societies, documents have been pivotal in evidence and discovery. In recent years, with the rise of email and electronically stored information (ESI), technology companies have standardized review and production processes around these data, converting them into the standard source of discovery: documents. This process has been functional and the data quite usable, until the advent of short messaging in business and personal communications.

Starting with the end in mind, the format we seek to produce for the requesting party is still a document. This format makes the most sense, as it can display short messages as a fluid document showing the conversation, with redactions of confidential messages, alongside all other relevant data. However, the processing and review process for short messages often follows the same document conversion and review process, even though it is the least efficient way to review this data.

But why is the processing and review process subject to the same document conversion and review process when it is the least efficient way to review these data?

Issues with document review of short messages are:

• Context of cross-channel conversations – Many people will start conversations in one channel like email, switch to a corporate chat application like Slack or MS Teams and may end in a 30-minute phone conversation. When the data is in a linear document review workflow it is extremely difficult to stitch those conversations together.
• High costs in document review – Whether the message is converted to individual documents or conversations are converted to 24-hour conversations or any variation, reviewing document by document and redacting within those documents is tedious and costly as the time to do so is significant.
• Data volumes impact hosting costs – The conversion of short message metadata into documents creates a high data footprint that is expensive with “cost per gigabyte” hosting models. This is good for service and software providers, but not for the end client.

Given the growing volumes and diverse types of data dominating investigations and discovery processes, it is crucial to explore more efficient strategies for analysis and review. These strategies should provide better contextual understanding while mitigating costs. It is evident that short message communications differ significantly from emails and e-files, requiring a different approach in the processing and review phases of the EDRM.

The most efficient and effective approach to short message discovery is to render conversations in a “near-native” view for analysis and review where the conversation looks like a document, but the underlying data is the metadata and all media as a part of the conversations.

Example of a Near-Native conversation segment

Benefits of a near-native review of short messages are:

• Easy import of data to a review platform: Rather than processing and loading documents, short message collections can be directly imported into the review platform.
• Tag items at the message level: This allows for more granular tagging and categorization of messages.
• Produce only relevant messages: By reviewing messages at the message level, only relevant messages need to be produced, reducing unnecessary data production.
• Automatic redactions: The review platform can automatically redact confidential or privileged messages, reducing the manual effort required.
• Display all media inline: Videos, GIFs, and audio files can be displayed in line with messages, providing a more comprehensive view of the communication.
• Export options: The review platform should offer export options that accommodate all document and load file types, ensuring compatibility with various systems and processes.

Here’s what this can look like with the right technology solution:

Visual of conversation using CloudNine

If you want to learn more about handling short message data efficiently and effectively in eDiscovery, set up time to learn more about CloudNine Analyst here.

This was not the same old Legalweek, or “LegalTech New York,” as the conference was referred to in years past.

With over 6,000 registered attendees and 37% being first timers, the high level of excitement generated by participants about being in person with peers was palpable in the sessions and events held. There was also a greater embracing of new ways of getting legal done, with can’t-be-ignored tech like GenAI, data management and handling the ever-growing modern data in discovery cracking open the remaining closed doors to innovation for law firms, government and corporate teams alike. The once taboo topic of sexual harassment in our industry also came roaring to the surface.

We narrowed down our many Legalweek 2024 learnings to six key takeaways.

1. Drive change (and get what you want) with a “how can I help” attitude

Actor Bryan Cranston, famous for his role in the AMC series Breaking Bad and previously played a lawyer on Matlock and the Andy Griffith Show, spoke on breaking boundaries. In addition to talking about the importance of perseverance to be successful in any endeavor, he also advised to approach something you want with the perspective of how you can help. To get what you want from an audition, a job interview or, in the case of many legal industry changemakers, implementing change. “…present yourself as a gift…and put into energy solving someone’s problem,” he said.

2. Take advantage of how technology is levelling the playing field

Technology has broken barriers and created greater access to opportunities in other fields for years: education, healthcare, etc. At this year’s State of the Industry report overview delivered by ALM’s Heather Nevitt and Patrick Fuller, this concept was brought up on how tech is helping mid-sized law firms compete with bigger firms. “Size used to matter”, said Nevitt, but now, with technology including AI, “…it will no longer be that the big that eat the small, but the fast that eat the slow.”

This notion of technology helping individuals and organizations get ahead played out in other sessions, including one on the Future State of the industry. Marcy Cohen, Chief Legal Officer of ING Americas, said that she would consider using a mid-sized firm. “A nimbler (tech forward) firm can jump in that does not have an army of associates, as long as they have subject matter expertise,” she explained.

When it comes to advancing careers, technology also plays a part. In the same session, panelists discussed how technology allows teams to bring work in-house and for senior lawyers to focus on impactful work instead of reviewing NDAs. On the topic of women and law, the concept of using technology plus having data on results being a career accelerator was discussed. Rachel Zahorsky, VP of Client Engagement at Harbor Global, explained that her ability to show numbers behind a tech implementation and having someone advocate for her helped her to get her current job. “Two men who were mentors and who knew what I could do said my name in the room when I wasn’t there.” She encouraged especially the men in the room to do the same: “When we’re not there, say our names. And we will support you. And we will rise together.”

3. Have a plan for dealing with modern data in discovery

In a thought leadership session hosted by CloudNine and our managed review partner, Integreon, the growing challenge of dealing with “modern data” like texts, chat and social media data was covered by a panel of eDiscovery experts, including Manfred Gabriel, Partner and Senior Counsel of eDiscovery at Holland & Knight, Kevin Bannon, Head of CMS Evidence, and Matt Rasmussen, Founder and CEO, ModeOne. Clare Chalkley, VP of legal services at Integreon disclosed the stats from the 2024 State of the Industry report by eDiscovery Today/Doug Austin. Survey respondents stated that over 40%, most or all their cases involve discovery of data from mobile devices, with 38% of these cases involving collaboration data from apps like Slack, Teams, WhatsApp, etc.

Gabriel highlighted the importance of questioning custodians on all communications channels they use, since we all are using alternatives to email with greater frequency, with texting leading the list.

Other tips shared included:

• Even if someone says they deleted messages, they can be found. You just need to ask them to name all they communicated with and rebuild conversations from their devices
• If an organization is using Google docs, it will have a downstream impact on how you preserve and review data
• You need a solid ECA process in place to minimize the teams of data
• Determine your ESI protocol upfront regarding attachments, whether they are included in emails, or texts or chat app/social media data (there are several cases which tie to this learning, such as Noom v. Nichols in which the opposing party said they would not produce linked documents. The court endorsed this stance.)

Rick Clark, VP of Strategic Partnerships at CloudNine concluded the session by saying that there is now technology allowing you to deal with modern data content efficiently and treat it like data, not documents. If you are interested in learning more about our solution for handling modern data, CloudNine Analyst, which won for Best Emerging Technology in the Legalweek Leaders in Tech Law award program last week, book time with us for a brief demo.

4. Think business first when it comes to AI adoption

The many sessions on AI hit on the topics of accuracy, ability to explain outcomes, data security and change management. Another important subject was identifying business use cases. In a session on the practical implications of generative AI for law firms, panelists from Sheppard Mullin, DLA Piper and O’Melveny & Myers discussed the importance of finding business use cases that will be easy to implement and yield measurable time and cost savings results, such as any work involving summarization, translation, analysis, drafting or custom “ChatGPTs”.

In the Future State of the Industry discussion, Liz Lugones, COO of Uplevel Ops talked about how some corporate lawyers and General Counsels simply get a request from above to use AI. Her question when asked to help is “for what?” She goes back to the human factor and asks what they want AI to enable for their team, and what they want to enable to support their business, and then start from those use cases to identify how to apply AI.

5. Lead the charge against cyber data threats

Today, legal has the opportunity to take command of an organization’s efforts to combat cyber threats, rather than be the one called in after an incident to help deal with the aftermath. In a session called “Improving Your Security Posture and Reducing Cyber Risk”, the idea of attorneys working closely with a Chief Information Officer in protecting an organization against cyber theft was discussed. Dondi West, Assistant General Counsel at GSK, said he likes to be brought in at the start of a date security improvement program and wants to be collaborative with IT. Often it’s legal that is aware of security frameworks that are “whale tested,” and have a good sense of what works and what does not.

Having counsel involved early also makes sense when legal charges brought against companies who have a breach are considered, In the case of cyber incidents with Uber and Solar Winds, criminal charges were brought against the company and individual corporate leaders. It makes sense to have the team whose primary responsibility is to protect the company against reputational harm be working collaboratively with IT and information security leadership from the start.

Additional pointers shared by West and other panelists like Emily Garnett, Brownstein Hyatt Farber Schreck and Deb Bitzan, Senior Product Manager, Aware, include:

• Look at established security frameworks like SOC II to see what baseline actions are needed to protect against cyber theft
• Make sure your cyber insurance includes business interruption loss coverage
• The weakest link in an organization is those of computers. Put social engineering/phishing training in place for all employees; aim to get the collective “click” rate on planted phishing emails below 5%
• Make sure your third-party tech providers have the basics in place: for example, end point security and multifactor authentication
• When it comes to incident response planning, timing and context matter. Bring in an outside consultant to help you create a plan for all scenarios and actions, including what happens if your organization is attacked on a weekend or holiday

6. Stand united against sexual harassment

The wave of sexual harassment reports from conference attendees this year was shocking and disheartening. Sexual harassment is a problem that permeates every industry but for the most part, has not been discussed widely in legal technology public forums like LinkedIn and podcasts. The floodgates have opened, the stories are out and the unison of voices stating outrage and demanding action is deafening. We agree with Kassi Burns, who concluded her podcast created post conference with these words: “I hope this painful moment leads to progress.”

Now is the time to stand together to identify and put into action policies to prevent sexual harassment from occurring not only in conferences, but in workplaces too. At CloudNine, we are proud of our heritage and culture of professionalism and approaching others and each other with respect. Even so, we’re working this week on updating our policies to ensure we continue to hire the right people and provide guardrails for CloudNine employees attending social events and for their day-to-day interactions.

We also support the #Splash pledge started by Marla Crawford at Cimplifi this week, and will, as an organization and as individual members of the LegalTech community, work together to help all of LegalTech #BeBetter together.”

About the author:

Catherine Ostheimer is VP, Marketing at CloudNine and has been working in the legal technology industry for 9+ years.

By Rick Clark and Jacob Hesse

2023 was an eventful year in the world of legal technology, with new technology emerging to address both traditional and new challenges legal teams face when collecting, processing, and reviewing data for litigation, investigations, or public access requests.

What will 2024 hold, especially in the world of eDiscovery? We’ve captured the top trends for the year based on the conversations we’ve had in recent months with customers and industry experts. Here are six themes we predict will be most prevalent in the year ahead.

Early Case Assessment (ECA) Will Take Hold

ECA is certainly not new, but its use will accelerate significantly in the year ahead. Automation and advanced analytics, including machine learning, smart filtering, and integration with predictive coding technology will continue to grow. This integration will enable more precise identification of key documents and information, giving practitioners a clearer understanding of the case early on and influencing the speed to litigation, settlement, or other strategic decisions.

Efficiency and cost control are two of ECA’s leading values, with enhanced data volume management and fewer documents to review with human eyes. Advances in early case assessment technology are making it more accessible, with valuable insights into case details such as key issues, custodians, and document types.

Role of AI Will Rise

Generative artificial intelligence promises to transform the legal community by enabling more data interrogation during discovery. This may change the roles of legal professionals by automating certain tasks, such as drafting and summarizing documents.

As AI becomes more prevalent, issues such as the misuse of AI (such as with “deep fake” images and video”) will be prominent. Generative AI will also be a challenge when verifying research and determining whether information created by AI is credible, or a “hallucination.”

Artificial intelligence may be a technological boost in support of access to justice and assisting legal aid providers looking for increased efficiency at low cost.

Data Privacy Restrictions Will Increase

With the growing awareness and importance of data privacy, governments and corporations will encounter more stringent regulations globally. The General Data Protection Regulation (GDPR) is an early example of this. Projects in eDiscovery will need to be ever more careful about the collection and handling of personal data. This may be especially true for data that crosses national borders.

Laws within nations are evolving as well. The California Consumer Privacy Act (CCPA) and others are emerging that will require the eDiscovery industry to adapt. Legal teams and eDiscovery experts will need to be aware of the region that data is collected from and ongoing changes in the legal landscape to maintain compliance.

Privacy concerns and the explosion of data volumes over time are influencing organizations to focus on data minimization. Companies are implementing strict data retention policies to reduce the risk of data breaches and ensure compliance with laws and consumer expectations.

SaaS and Cloud-based eDiscovery Solutions Will Become Mainstream

The argument for cloud-based solutions for eDiscovery has never been stronger. Cloud-based eDiscovery solutions offer lower upfront costs compared to solutions that are on-premise and often operate on a subscription model, which can be more economical than investing in extensive hardware and software. Since the cloud provider manages the IT infrastructure, there is a reduced burden on a customer’s IT department in terms of maintenance, security, and updates.

Cloud-based eDiscovery solutions also often offer customizable options that can be tailored to specific needs. Those with DIY options along with professional services can offer great flexibility and scalability. Professional services teams can accelerate a client’s access to important facts and data, without the client having to maintain full-time litigation technology support staff. Those customers who prefer to manage their own eDiscovery can still do so but can hand the work over to professional services team members if the size of the project becomes unwieldy.

SaaS solutions provide efficient data management and security capabilities that comply with legal and regulatory standards. Cloud providers usually offer advanced security technologies, processes, and certifications that might be too costly for individual organizations to adopt on their own.

Consensus on Handling Short Messages

By the end of 2024, we may see more consensus developing on how to collect and review short messages like Slack or Teams chats, text messages, and other mobile data. These modern data types are becoming increasingly important in legal disputes. Conversations no longer stay within one platform: they can meander from email to text messages to Teams, for example. The ability to thread messages between platforms will be an advantage for those seeking to derive an accurate and complete story from data.

Blockchain Use Will Expand in eDiscovery

Blockchain technology has the potential to revolutionize eDiscovery in terms of data integrity and automating compliance. However, there are challenges to navigate given its decentralized nature. Blockchains can span multiple legal jurisdictions, so applying local laws about eDiscovery may be challenging since the technology operates globally. Courts and legal professionals will need to develop a better understanding of the technology and how it can be incorporated into eDiscovery processes.

Business use of blockchain technology continues to rise. This makes it inevitable that eDiscovery will need to be applied to it more often. eDiscovery professionals will need expertise in tracing and analyzing blockchain transactions, including cryptocurrency transactions.

Blockchain technology can add security to data, but it will also raise privacy concerns. Once information is placed in a blockchain, it is difficult to change or delete. This will be challenging in the face of privacy laws like GDPR, which gives people the right to be “forgotten.”

Smart contracts and automated compliance are possible with technology like blockchain, where the terms of the contract can be written directly into computer code and help automate eDiscovery. Compliance with legal and regulatory requirements can be built into code so that data retention and deletion policies are automatically enforced. Blockchain’s primary feature is the ability to maintain a secure record of transactions. For eDiscovery, this means better evidence integrity and easier defense of the authenticity of digital records.

Do you have an emerging eDiscovery challenge that you portend will only continue to grow? Contact us today to see how we can support your eDiscovery needs in 2024 with our cloud-based review platform, CloudNine Review, CloudNine Analyst, only eDiscovery solution that renders hard-to- manage modern data types in near native format, with timelines, or through one of our other technologies or services.

About the Authors

Rick Clark is VP, Strategic Partnerships at CloudNine and has 20+ years of experience in forensics and eDiscovery. Focused on innovation and education, he co-founded ESI Analyst, now CloudNine Analyst, as well as Wave Software and the Master’s Conference.

Jacob Hesse is VP, Professional Services at CloudNine and has 20+ years of experience in eDiscovery in both law firm and service provider environments. He most enjoys building collaboration and synergies within and between teams to achieve goals together.