eDiscovery Daily Blog

• March 23, 2018

This is the fourth of the 2018 Legaltech New York (LTNY) Thought Leader Interview series.  eDiscovery Daily interviewed several thought leaders at LTNY this year (and some afterward) to get their observations regarding trends at the show and generally within the eDiscovery industry.

But first, this week’s eDiscovery Tech Tip of the Week is about The Importance of Metadata.  Metadata is key to the management, tracking and retrieval of documents within the discovery process.  Whether you wish to locate a document sent or received by a particular individual, filter a collection by a relevant date range or locate documents that have been marked as responsive or privileged, the ability to be able to search both the system metadata (that metadata that is extracted from the document when it is processed for review) and user metadata (that metadata used by legal professionals to categorize and track documents during the review and production steps in discovery) is key to being able to manage that document collection efficiently and effectively.  If you don’t think metadata is important to a case, here are 10.8 million reasons why it is.  :o)

To see an example of how Searching for Metadata is conducted using our CloudNine platform, click here (requires BrightTalk account, which is free).

Today’s thought leader is George Socha of BDO.  George is Managing Director at BDO.  Co-founder of EDRM and named an “E-Discovery Trailblazer” by The American Lawyer, George has nearly 30 years’ experience assisting a broad range of organizations with all facets of electronic discovery as well as information governance, domestically and globally. Prior to joining BDO, George spent 16 years as a litigation attorney in private practice and then 13 years running his own consulting firm. He received his law degree from Cornell Law School and his undergraduate degree from the University of Wisconsin-Madison.

What were your general observations about LTNY this year?

Although I have not had the chance to attend much of the show myself, I have been asking others what they think.  The responses have been completely contradictory.  Long-time attendees have said attendance is way down and, for some, the program seems somewhat flat.  Newer attendees find a lot to like, appreciating the programming and the opportunities to mingle.  For me, the conference provides an opportunity to meet in person with colleagues and clients.

With regards to the industry in general, what do you think are some of the hot topics people are talking about?  And, what do you think are some of the hot topics that people should be talking about?

I think that we continue to see a scenario where far too few attorneys have a solid understanding of what they could do and should do with respect to electronic discovery – and even fewer actually are moving forward on those fronts. Even after all these years, it seems the basics don’t get the attention they deserve.

While we spend a lot of time at conferences like this one talking about advanced (and worthy) topics such as predictive coding, those aren’t the commonplace topics of discussion when it comes to actual matters. I continue to encounter folks in law firms and corporate legal departments who are just now are beginning to grapple with electronic discovery; they have never had to deal with it before. I continue to encounter practicing lawyers who have heard the phrase electronic discovery but don’t appreciate what it signifies, aren’t familiar with even the best known players in our space and have never heard of e-discovery-focused organizations such as EDRM and The Sedona Conference.

By now, if you are a litigator, you should know about the EDRM diagram. You should know about the Sedona Principles. You should know about the two sets of FRCP changes in 2006 and 2015. That we encounter folks who aren’t familiar with any of those tells us something about the actual state of the industry.

There has been a lot of increased focus on data privacy this year with GDPR coming into effect.  Where do you think organizations stand with regards to getting compliant with GDPR?  Do you expect to see a lot of organizations scrambling?

From what I’ve seen, there is a lot of uncertainly about what constitutes compliance with GDPR. And, of course, if it’s unclear what constitutes compliance with GDPR, it’s rather hard to figure out how one becomes compliant. I would say that even at this late date, larger corporations are much more focused on GDPR than smaller organizations and law firms.

In larger law firms, there are people who have been spending a fair amount of time looking at GDPR, figuring out what compliance means, and developing and delivering services to help clients be ready for the regulation’s effective date. And there are certainly corporations – mostly larger ones – that also have been spending a fair amount of time and effort and money, taking on the same issues. But, when you look at the larger body of businesses and law firms, GDPR is not exactly front and center for them.

EDRM had a major focus on putting together a guide for technology assisted review last year. Where does that stand and what are you hoping will be the end result of that effort?

Work is underway and progressing well. The guide is divided up into several portions and we’ve got drafts of each portion. Those continue to be developed and reviewed. They are going to be distributed first to the larger EDRM membership for review, just as we’ve done in the past, then released for public comment.  {Editor’s Note: EDRM has since announced that the draft guidelines will be released for EDRM member review in March and a final draft will then be released for public review later this spring.}

I think ultimately we are looking at two sets of materials. The first one will be a nuts and bolts, “how do you do this stuff”, set of guidelines for the people who are in the trenches, mostly people in law firms and corporations. The second set of materials will focus on guidelines for the judiciary to help educate and guide judges through at least the major issues that we see will associated with predictive coding.

When you talk about the nuts and bolts, are we talking a preferred approach or are we just talking a general idea of the things you need to look for in conducting a predictive coding project?

We are talking a framework so that people have a construct to use and a context in which to place all of this. This won’t be so much about specific recommendations as there are too many and those are too tightly tied to specific tools, methodologies, and data seta; just consider the various approaches to predictive coding used today: TAR 1, TAR 2, systems with seed sets, systems with continuous active learning, and so on. We have to be careful to avoid putting out a set of guidelines that box people into the use of only one approach.

In addition, this is a rapidly changing area. We want something that will stand up over time rather than become obsolete as soon as the next big change happens.

And the tools are changing – rapidly. There are things we can now do with predictive coding that just weren’t viable options three years or even two years ago.

If you were “king of LTNY” for a year, what would you do in terms of structuring the curriculum to try to address some of the gaps in eDiscovery knowledge among the legal profession you mentioned?

Not surprisingly, I would look to focus on the practicalities of e-discovery: who can do what, how, and with what tools and techniques, to accomplish common and developing objectives. I would try to provide both basic, medium and advanced level content. To the extent practical and not too difficult, I also would try to do provide sessions that are more hands on.  Of course, this all is a pretty tall order, so I might also want to be a king with limitless time and resources.

I’d try to make the topics narrow enough so that people could get into depth on things and try to offer a wide range. By the way, I would not by any means focus only on electronic discovery, there’s a lot else out there.  Security is a major concern, and so is privacy. There should be a strong focus on that because law firms continue to be areas of risk.  Similarly, a focus on getting your electronic house in order through information governance is very important. And then, let’s see what other areas to cover as other issues emerge.  Again, a pretty tall order.

What would you like our readers to know about what you’re doing and what EDRM’s doing?

As we discussed earlier, EDRM is currently is working on the guidelines of technology assisted review/predictive coding as well as working on a GDPR project. These are the first two undertakings for the “new” EDRM – the EDRM under new management within Duke Law. We should look forward to some new initiatives in the coming year, a broadened scope of activities because EDRM is now part of Duke and, as a result, has a breadth of capabilities that weren’t there before.

Thanks, George, for participating in the interview!

Also, we’re getting ever closer to the University of Florida E-Discovery Conference, which will be held on Thursday, March 29.  As always, the conference will be conducted in Gainesville, FL on the University of Florida Levin College of Law campus (as well as being livestreamed), with CLE-accredited sessions all day from 8am to 5:30pm ET.  I (Doug) am on a panel discussion at 9am ET in a session titled Getting Critical Information From The Tough Locations – Cloud, IOT, Social Media, And Smartphones! with Craig Ball, Kelly Twigger, with Judge Amanda Arnold Sansone.  Click here to register for the conference – it’s only $199 for the entire day in person and only $99 for livestream attendance.  Don’t miss it!

As always, please share any comments you might have or if you’d like to know more about a particular topic!

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.