Ethics

This is the fifth of the 2017 Legaltech New York (LTNY) Thought Leader Interview series.  eDiscovery Daily interviewed several thought leaders at LTNY (aka Legalweek) this year to get their observations regarding trends at the show and generally within the eDiscovery industry.

Today’s thought leader is Jason R. Baron of Drinker Biddle & Reath LLP.  Jason is a member of Drinker Biddle’s Information Governance and eDiscovery practice and co-chair of the Information Governance Initiative.  An internationally recognized speaker and author on the preservation of electronic documents, Jason previously served as the first Director of Litigation for the U.S. National Archives and Records Administration, and as trial lawyer and senior counsel at the Department of Justice.  He also was a founding co-coordinator of the National Institute of Standards and Technology TREC Legal Track, a multi-year international information retrieval project devoted to evaluating search issues in a legal context.  He served as lead editor of the recently published ABA book, Perspectives on Predictive Coding and Other Advanced Search Methods for the Legal Practitioner.

Jason provided so much good information that we decided to publish his interview in two parts.  The first part of his interview was published on Friday and Craig Ball’s interview originally scheduled for today will be published on Wednesday and Thursday of next week (also in two parts).

Since you mentioned the recent trend we’ve seen toward an emphasis on technology competence for attorneys, I was going to also mention that we’re up to 26 states that have adopted some sort of technology competence requirement, with Florida being the first state that has required technology CLE for their attorneys.  Do you think the increased emphasis on technology competence will change the general lack of understanding of technology (and advanced search technologies) within the legal profession?

Doug, I’m happy to say that, in the 36+ years that I’ve practiced law, I’ve never had to meet a CLE requirement – the Massachusetts and the DC bars don’t require it!  (Call me lucky.  I’ve also vowed never to take another bar exam.)  But there is clearly a movement towards states’ adoption of the ABA professional rules, including the comment to Rule 1.1 mentioned above.  And in addition to California’s ethics opinion, there are any number of local courts where a great deal of e-discovery competency has been expected of counsel for some time.  (The Seventh Circuit Electronic Discovery Pilot Program, Judge Paul Grimm in Maryland, and state and federal courts in New York have all led the way on this.)   Anyone who practices eDiscovery in a large, complex case is going to have to confront this fact.   Technical competency is of course also needed in a larger percentage of smaller cases in state and federal court as well, given that the need to search Facebook and related apps, as well as GPS devices and other smart technologies, all will be increasingly useful for handling smaller cases involving personal injury, divorce or employment law.  You just can’t hide from the world that we are in – we are immersed in ESI and increasingly immersed in algorithms and analytics that affect all of our lives.

So, to be technically competent in e-discovery in 2017, you do need to know what you don’t know.  Like the California ethics opinion states, that means either knowing the technical points spelled out in the opinion, or knowing enough to know you need help by going to an expert within your firm or a consultant.  Or to step aside and get a co-counsel to help.  And, I think that will be a trend line that we will see.  I don’t think we are all required by these opinions to be Maura Grossman or Judge Peck, or that we need to get an advanced degree in information science or data analytics (although it might help!).   We just need to know enough to ask questions about what it takes to do a better job in eDiscovery.

The highest goal for the e-discovery bar will continue to be working in a way that is consistent with Rule 1, with a just, speedy and economical approach to litigation.  And, in the information governance arena, we can make ourselves valuable and competent as well, by knowing something about advanced search.   At Drinker Biddle, my colleague Bennett Borden is a partner and Chief Data Scientist of our firm – to my knowledge the only lawyer who holds those two titles at an AmLaw 100 firm.   Bennett has been on a “soapbox” as well, saying that we can apply what we have learned using analytics in eDiscovery to every field of practice at a law firm, whether it’s mergers and acquisitions or employment law or anything.  Our practice group routinely is called upon to advise and be part of an ongoing firm-wide discussion of how clients need insight into their large data sets.

We all know where these lines are going.  In terms of technology, at least, the world is not going backwards.  We’re not heading to a place where computers are getting less smart – just the opposite.  Whether you agree with me that the pace of change is itself accelerating,  or just think change is happening, we are in a world where (for the rest of our lives) we are going to be confronting new apps and new technologies.  And, as lawyers, we need to understand the implications across a range of engagements across all legal domains.

In addition to what we’ve already discussed, what are you working on that you’d like our readers to know about?

A few things come to mind: One is that the Information Governance Initiative celebrated its third anniversary during this year’s Legaltech.  Under Barclay Blair and Bennett Borden’s stewardship, the IGI has grown now to 25+ supporters from the legal tech community.  The IGI is widely recognized as a robust “think tank” providing thought leadership about IG topics.  Aside from white papers and benchmark studies, what we have focused on in the last couple of years is holding a Chief Information Governance Officer (CIGO) summit and, this year, that will take place on May 10 and 11 in Chicago.  As we have in the last two years, we will endeavor to gather 60 or 70 “card carrying” members of the IG profession – people who are in a leadership role within IG at their respective organizations.  Many of those who come are de facto Chief Information Governance Officers except that they have some other title on their business card.  This year we will again have a serious conversation about what it means to be a leader in IG.

I have written a recent article in Ethical Boardroom (a magazine out of the UK that may not be very well known in the US, but has really good content regarding corporate governance issues), that I would like to be a theme for 2017 and going forward: how to involve the boards of directors in companies in participating in oversight of information governance issues, to essentially deputize them as fiduciaries of IG in some sense.  Through Sarbanes-Oxley and through the efforts of many companies, board members have developed expertise on cybersecurity issues, and there have been many articles about how you can get involved in that.  But, I think there’s a broader conversation than just data breach issues which encompasses IG – and I have written an article on that.  I’ve also been interested in data ethics issues including moderating a panel at the last annual ACC meeting in San Francisco, so I’ll also be talking about algorithmic bias this year as well.

The last thing that I’ll bring up which is very close to my heart is that, since 2007, I’ve been asked to lead a workshop with my fellow organizers, called the DESI (Discovery of ESI) VII workshop series at the International Conference of AI and Law (ICAIL).  The format of the workshop is that people come and present work that they’ve done, either research papers or even just position papers of 4 or 5 pages.  So, it’s a very easy lift to be part of a very smart community of PhDs and lawyers talking about sophisticated topics.

This year, the workshop will be held on June 12 at King’s College in London.  In prior years we’ve had workshops in Barcelona, Rome, Beijing, Pittsburgh, San Diego, Palo Alto, as well as once before in London itself.   Now, we’re back in London, and I encourage all of your readers to attend and consider participating by putting in a paper.  Maura Grossman and Gordon Cormack graciously have agreed to be the opening keynote speakers at this year’s workshop, which will be especially focused on identifying and protecting sensitive information in large collections.  This is an eDiscovery problem in complex litigation involving privileged documents, but it’s also a problem for privacy related materials (like PII and PHI), and a problem that comes up in audits and internal investigations as to what is proprietary and what can be provided.

Filtering content is also a problem in terms of allowing public access to the vast digital archives of government.  In the case of White House email, we’ve been accumulating emails since the 1990s and there will soon be close to a billion emails that are in existence at the National Archives.  One cannot, however, walk into the National Archives and see any of those e-mails, at least any time soon.  One can walk in and see paper records — but the large and growing collections of e-mails and certain other forms of electronic documents remain off limits because of the sensitive nature of content scattered throughout the collections.  In fact, it may be many, many decades before the vast bulk of NARA’s e-mail collection is made available to the public.  So, that’s an issue that I’ve been writing and speaking on, and that I trust will be discussed at DESI VII.  I will also be speaking on this subject at CeDEM 2017, an upcoming e-Democracy conference being held outside of Vienna, Austria this coming May. 

Thanks, Jason, for participating in the interview!

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

Don’t forget our webcast tomorrow: Best Practices for Effective eDiscovery Searching at noon CST.  Click here to register!

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.

This is the third of the 2017 Legaltech New York (LTNY) Thought Leader Interview series.  eDiscovery Daily interviewed several thought leaders at LTNY (aka Legalweek) this year to get their observations regarding trends at the show and generally within the eDiscovery industry.

Today’s thought leader is Mary Mack of ACEDS.  Mary is the Executive Director of the Association of Certified eDiscovery Specialists (ACEDS).  E-discovery luminary and recipient of the Masters Conference Educator of the Year 2016, Mary provides ACEDS and its membership more than a decade of strong credibility and sound leadership within the e-discovery community. Mary is the author of A Process of Illumination: The Practical Guide to Electronic Discovery, considered by many to be the first popular book on e-discovery. She is the co-editor of the Thomson Reuters West treatise, eDiscovery for Corporate Counsel.

What are your expectations of LTNY this year?

{Interviewed Mary the first morning when the conference had really just started}

My biggest expectation is that I’m going to see people and that I’m going to renew relationships.  For example, I just bumped into Hampton Coley, whom I worked with maybe seven years ago and haven’t seen since we worked together.  Legaltech is the place where that’s possible.  But, some of the people that I would normally expect to be here, like Tom O’Connor, aren’t here this year.

From an educational standpoint, unfortunately most of the action is off the floor and away from the sessions, but I was looking at some of those sessions and they’re stellar.  There are some great educational sessions lined up at the show this year.  So, if I am fortunate enough to have an appointment drop out, I’m going to jump into a session or two.

How many years have you been coming to LTNY and how do you think the show has evolved over that time?

I’ve been coming to the show over ten years.  I think there was a time, maybe 2006 or 2007, where it was like everybody and their brother became an eDiscovery company.  Even the copy people had a sign for eDiscovery at their booths.  Now, I think LTNY has evolved to where it’s about an 80% eDiscovery show with 20% around the edges and I think the part that’s around the edges is really interesting.  I’m always looking for things that are going to impact eDiscovery that aren’t quite eDiscovery yet and we saw some of that in years past with Information Governance and with privacy, and now we’re seeing it with cybersecurity.

That was the topic of the event that we had last night – the state of the industry as it relates to eDiscovery and cybersecurity.  I think this year won’t quite be the breakout year for cybersecurity, but it will be the “seed planting” year for cybersecurity, with a look at how cybersecurity informs eDiscovery and how eDiscovery informs cybersecurity.  Because it’s not enough just to keep people out of your network, you need to prosecute, you need evidence and you need that evidence to be authentic.

As for the event we had last night, it was really fantastic.  Jared Cosegilia of Tru Staffing Partners did a good job of organizing the presentation and even had us rehearsing the transitions and breaks.  We were able to put our survey data out for people who are really interested in both security and privacy in our community.  We had some surprising things in our survey, like the fact that over half of the people participating are more than ten years tenured in the industry.  But, what I heard afterward is that government agencies in particular are looking for the younger eDiscovery professionals and they’re having a hard time finding them.  Most eDiscovery professionals are considerably tenured, but the agencies are looking for people that can come in at an entry level salary expectation that’s much different than what we have now.

I think the reason for that is that there really are no schools, other than Bryan University perhaps, with a degree for eDiscovery.  We have courses at UC Irvine and we’re looking at other law schools to teach eDiscovery.  Some law schools have a full course on eDiscovery; in other schools, it’s just one credit now.  But, there’s not an educational feeding ground for the young talent where that young talent has to come in and “earn their stripes”.  The ones who do come in are maybe paralegals, maybe legal assistants or maybe they’re an existing person in a corporation and that’s how they get in.  They’re just not coming fresh out of school.

With that in mind, we’ve seen a recent trend toward an emphasis on technology competence for attorneys and we’re up to 26 states that have adopted some sort of technology competence requirement, with Florida being the first state that has required technology CLE for their attorneys.  What impact do you think those developments will have on attorneys becoming more educated about technology?

I think the technology CLE requirement in Florida is very exciting.  From what I understand, they expected it to be controversial and it wasn’t – it was actually embraced.  So, I think that with those requirements, attorneys will embrace the opportunities to learn more about eDiscovery and I think Florida will see a nice “bump” there in attorney knowledge, like California did when they addressed knowledge of eDiscovery specifically in their formal opinion.  I think it will permeate outside of the “bubble” because the evidence is primarily electronic these days.  Sure, sometimes you have your signed papers and handwritten notes, but most evidence is originating in the digital world and it needs to be admitted and produced in the digital world.  I think that once that attorneys understand the technology and it becomes demystified and the fear goes away, I think that we’ll see them adopt and even embrace it.

Last year, ACEDS presented a handful of webinars and conference sessions related to automation and Technology Assisted Review and, as you’ll recall, there was lively discussion about TAR during those presentations, and even more lively discussions about TAR after those presentations.  Where do you feel we are today with regard to the acceptance of Technology Assisted Review?

It’s clearly being more and more accepted.  The Supreme Court of Victoria just explicitly approved it in the Rules for Australia.  Judge Peck, once again, wrote an opinion and highlighted how it is a process – it’s not just about the Technology Assisted Review, it’s also about how you perform the Technology Assisted Review.  At the conferences that I attend, when you ask audiences for a show of hands of those who have used TAR, you used to get maybe one or two hands raised.  Now, about half to three quarters of the audience raises their hands to the question of whether they’ve used TAR before.  So, I think the acceptance is there and it will take a different kind of lawyer to manage the reviews.  It’s not going to be your typical contract review attorney, it’s going to be more of a subject matter expert attorney that gets involved.  For the contract review attorneys, it’s an opportunity (and also a challenge) to “up-level” themselves to stay competitive and marketable.

What are you working on that you’d like our readers to know about?

We’ve got a couple of big things happening: one that’s stealth and one that’s not stealth.  I’ll tell you first about the “not stealth” one: we received approval to provide pro bono scholarships for any organization working on Access to Justice.  Regardless whether it’s a corporate or law firm pro bono program, a law school clinic, an advocacy organization, the public defender’s victims’ rights organizations, any of these types of programs can sponsor a scholarship.  The only requirement that we have is that they perform eight hours of pro bono work in order to apply and then they can put whatever other requirements on it that they want.

Organizations who qualify can just pick somebody or hold a contest or whatever they want to do and we will enroll them in eDiscovery essentials, which is a $600 course that will give them an understanding of the functional landscape of eDiscovery, from soup to nuts, with a certificate to reflect completion of that course.  And, that will put them on the path to eDiscovery.  With what I was saying earlier about how government agencies can’t find those entry level people that they seek, part of the reason for that is that they can’t afford to get themselves educated.  So, this is a way for ACEDS to contribute to Access to Justice while also helping young people get that education.

The “stealth” item to mention is that we’re going to provide some cyber training.  We’re in beta and don’t have a press release or anything yet, but we’re working with Roy Zur, who gave a wonderful cybersecurity presentation at our national conference last year, on a project called “Cybint”.  He has put together an assessment and training program, with “bite size” training segments of around ten minutes each.  Once you take the assessment, you’ll know what training you need and you can focus on those specific ten minute training sessions to “up-level” your skills and start to bridge the gap between eDiscovery and cybersecurity.

Thanks, Mary, for participating in the interview!

Thank you, Doug, for your consistent and excellent reporting and blogging.

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

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.