April 10, 2017

Legal Ethics in the Digital Age

I just attended an excellent and timely program on Legal Ethics in the Digital Age. The program was sponsored by the Commercial and Federal Litigation Section, the LPM Committee and the Committee on CLE, with members of the eDiscovery Committee and Social Media Committee playing prominent roles. This program was organized by its two Co-Chairs:  Maura Grossman, Esq. of Maura Grossman Law and Ron Hedges, Esq. of Dentons. These 2 distinguished attorneys organized a fantastic program.

At the outset, Mark Berman, the Chair of the Commercial and Federal Litigation Section, made some introductory comments. His advice to the attendees and webinar audience was geared to competence, as he explained the legal requirement was for lawyers to be "competent" in the technological aspects of practicing law, including eDiscovery, social media and managing records.

The first panel discussed competence in the eDiscovery context. Moderating was Maura Grossman and serving on the panel were Shawndra Jones, Esq. of Axinn Veltrop, Ron Hedges. Esq. of Dentons and Hon. Victoria Graffeo of Harris Beach. The panel discussed that both the ABA and NYSBA have standards requiring attorneys to be competent, as both these associations have stated in comments to their respective rules that competence includes "keeping abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology."  As for ensuring such competence in the eDiscovery area, it was suggested that attorneys do the following: talk to your clients about their data policies and sources of electronically-stored information (ESI); think beyond email, such as all forms of social media; and understand the obligation to preserve ESI. 

The second panel addressed protecting privilege and work product in ESI.  Moderating was Ron Hedges and serving on the panel were Hon. Graffeo, Scott Malouf, Esq. and Marcy Einhorn, Esq. The panel discussed a new Rule (effective 1/1/17) requiring "attorneys to make reasonable efforts to prevent the inadvertent or unauthorized disclosure or use of, or inauthorized access to, [confidential] information."  This rule obviously puts attorneys at risk to the extent they are hacked and did not take "reasonable efforts" to prevent this.  The panel also discussed the effect of inadvertent disclosure, with the panel noting that should an attorney receive an inadvertent disclosure of privileged information, the only requirement under NY law is to provide notice of said receipt, not to return the relevant documents or ESI.

The third panel was moderated by Michael Fox, Adjunct Professor at Mt. St. Mary College, with the panelists being Ignatius Grande, Esq. of Hughes Hubbard, Maura Grossman, Esq. and Scott Malouf, Esq.  This panel discussed the "Rules of the Road" for attorneys' use of social media.  The over-riding theme was that social media doesn't change the basic principles, as it's only a new medium to apply the same "old" rules.  Take attorney advertising, for example.  If it's attorney advertising, a disclaimer is needed, whether it's advertising on an email or a tweet. But in the social media context, the panel provided some particular guidance: make sure endorsements of your expertise are truthful and not misleading; don't respond to an on-line negative review with a substantive response, as that can be violative of your obligation to your former or current client; it's proper to advise clients to make their social media public settings private; and attorneys in NY can make "friend" requests of witnesses if they're not represented by counsel.

The final panel was moderated by Ignatius Grande, Esq., with panelists Shawndra Jones, Esq., Michael Fox, Esq. and Marcy Einhorn, Esq. Their topic was related to managing records in the cloud. The panel discussed that a "reasonable care standard" applies. In meeting this standard, the panelists suggested not just blindly outsourcing this to a vendor, but first learning all the relevant facts and making a reasoned decision.  In so doing, the panel suggested asking questions of the vendor, such as:  how many servers will you be using;  where are they located; have you ever been breached; if so, what happened and how did you fix the problem; can you provide the same care required of an attorney; what's your protocol for changing passwords; and can you and will you retrieve the documents in the proper form if need be.

All in all, this was an excellent program on a hot button topic. My understanding is that the program will continue on an ongoing basis, which is a great service to practitioners who must practice law in this "digital age." 

This entry was made by Craig Brown, the author/editor of this blog and member of the State Bar's eDiscovery & Social Media Committees. Craig is the CEO & Managing Principal of Bridgeline Solutions LLC (a Lateral Link company), which specializes in placing contract attorneys in document review, eDiscovery and high-level positions in all practice areas.  Prior to pioneering the legal staffing industry, Craig was an Antitrust & Litigation Associate with Kaye Scholer and Litigation & Sports Law Partner with McLaughlin & Stern.  

March 21, 2017

LegalTech 2017

My head is still spinning from LegalTech 2017.  My quick takeaway is that the emphasis on TAR (technologically assisted review) continues and that eDiscovery companies are attempting to morph into cybersecurity companies, given how hot that area is.  Unfortunately, my time at the conference was limited, so I asked Scott Malouf, a dutiful attendee and colleague on the State Bar's eDiscovery Committee and Social Media Committee, for his impressions.  They are set forth below, in Scott's own words:

Most readers will recall that ALM hosts a huge legal technology show in New York City each year. The show - rebranded as Legalweek, The Experience - saw major changes this year and the future may hold more. Below, I describe some of the changes and some interesting vendors from the show.

Full disclosure, as a writer for the Buffalo Law Journal, I received a complementary Legalweek pass. I also give a deeper show rundown in my Buffalo Law Journal article that is coming out shortly.

What's New
First, the educational offerings were more focused. Besides general programming (such as artificial intelligence and the law, Erwin Chemerinsky's Supreme Court discussion, and judicial panels) educational tracks addressed specific audiences such as small firms, chief information officers, women in law, legal marketers, and legal knowledge professionals.

Second, and possibly for the first time, ALM charged a fee to enter the exhibit halls. If you take away anything from this blog post it is this: check for "early bird" pricing of any shows you might attend.  For example, the Legalweek exhibit hall fee was $15.00 if purchased before December 31st, but increased as the show neared.

Third, the show was more international. There were vendors and attendees from Japan, Switzerland, the UK, South America, and beyond. This suggests US lawyers may need to keep an eye on international tech trends and companies to find the best solutions.

Fourth, small innovation abounded. For instance, even though there was no dedicated space for startups, I encountered more company founders this year - folks who created a useful tool and now seek more users. I enjoy chatting with these innovators because their excitement is palpable - and you get a heck of a demo. I also noticed more vendors collaborating, either with each other or clients, to produce streamlined processes. Cross-vendor collaborations may be another area worth your attention.

Vendors & A Takeaway
My free press pass to the show included the exhibit halls. As I wandered, these vendors stuck with me (check their websites for full details):

·         Several vendors focused specifically on law firm IT. NYC-based BITbyBIT focuses on full IT solutions for law firms while Legalworkspace offers cloud-based IT optimized for legal needs and software.

·         My Broadcast Studio provides remote business video. They create a studio in your office, handle the production aspects and help you with your content and skills.

·         Swiss company Forexus demonstrated Chat eDiscovery 2.6, a tool to make chat transcripts (e.g. Bloomberg, Skype, and others) easier to review in discovery.

·         Artificial intelligence (AI) was the topic of Andrew McAfee's opening Keynote, and Japan-based AOS Legal Technologies demonstrated AI Legal Bot, an automated chat engine that analyzes and identifies key data in matters.   

I was struck by the speed of small innovations this year. Presenters, vendors, attendees, and even the show itself were trying something new. How about you?

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Craig Brown is a member of the eDiscovery Committee and author of this blog.  Mr. Brown is a practicing attorney specializing in eDiscovery  and one of the pioneers of the contract attorney industry.  Prior to founding and building companies in that industry, Mr. Brown was a Litigation & Antitrust Associate with Kaye Scholer and Litigation Partner with McLaughlin & Stern.

Scott Malouf is a social media attorney. He helps litigators turn social media into court-ready evidence, reduce the cost of social media discovery and develop legal strategies and theories based upon social media use by parties. He also helps organizations use social media to meet key goals while minimizing legal risks. He can be contacted via his website (www.scottmalouf.com), LinkedIn or Twitter (@ScottMalouf).

 


October 26, 2016

Cybersecurity

All attorneys involved with eDiscovery need to be concerned about cybersecurity, as confidential electronically stored information, which is subject to discovery, is at risk to criminal hackers. Realizing this connection between eDiscovery and cybersecurity,  Dino Medina, General Counsel to an eDiscovery company, Complete Discovery Source, authored an article, http://nysbar.com/blogs/EDiscovery/2016/10/26/Dino%20NYSBA%20Cybersecurity%20Article--May2016.pdf,  on Defensible Cybersecurity.  

In his timely and pithy article, Mr. Medina sets forth the following:  the elements used to assess an organization's cybersecurity program;  a set of best practices to guide the development of said program;  various cybersecurity accreditations (SSAE-16 SOC 1, SOC 2, ISO-27001 2013 Standard, PCI Standard and FedRAMP);  and how incorporating applicable legal standards at each stage of a cybersecurity program results in the most effective program.

This entry was made by Craig Brown, a member of the eDiscovery Committee and author of this blog.  Mr. Brown is a practicing attorney specializing in eDiscovery  and one of the pioneers of the contract attorney industry.  Prior to founding and building companies in that industry, Mr. Brown was a Litigation & Antitrust Associate with Kaye Scholer and Litigation Partner with McLaughlin & Stern.

March 14, 2016

Legal Tech 2016


The whirlwind of Legal Tech has come and gone. But what was learned? What were the hot topics and trends? What do some eDiscovery gurus say about Legal Tech 2016? Joe Bartolo, a Regional Manager of Kiersted, one of the vendors there, answered these and other questions in his article, linked here, published in Law Technology Today. Full disclosure: My company, OmniVere, acquired Kiersted, just days before Legal Tech 2016.






This entry was made by Craig Brown. Mr. Brown is President of the Legal Staffing Division of OmniVere LLC, an international eDiscovery company. He is a former Litigation and Antitrust Associate with Kaye Scholer and Litigation Partner with McLaughlin & Stern.

December 3, 2015

Georgetown eDiscovery Conference


My head is still spinning from the recent Georgetown eDiscovery conference held in DC. So many panels, so little time.

While impossible to summarize the entire conference, here are some highlights: Although I'm biased as a member of the State Bar's eDiscovery Committee, my colleagues on the Committee, not unexpectedly, led the way. Our esteemed Co-Chair, Steve Bennett, moderated a stellar panel on "eDiscovery Dispute Resolution," and, our prior esteemed Co-Chair, Adam Cohen, moderated an all-star panel on "eDiscovery and Data Breaches."

Regarding TAR, Committee Member Maura Grossman shared her vast knowledge in the field, as did David Cohen, of Reed Smith (the moderator). This was a not-to-be-missed session in this vital area.

Member Laura Kibbe moderated the inaugural panel on "eDiscovery 2020," during which the panelists discussed just how far eDiscovery has come and what to look forward to in the future. Offering great insight from this panel from the corporate client's perspective was Wayne Matus, a seasoned trial attorney who is Managing Director with UBS. And, Marc Teerlink, of IBM Watson, and Christopher Surdak (who also was the keynote speaker) explained (a) how privacy is a thing of the past, with our emails being analyzed already to sell us products, and (b) how data analysis in the future will focus not on the words themselves, but on their context and sentient analysis.

Another exceptional panel dealt with "Effective Project Management." Here, we heard about streamlining discovery from both a law firm's and corporation's perspective. Dawson Horn, AGC with AIG, offered great insight from the corporate client's side, whereas Karin Scholz Jenson and Lea Malani Bays gave the view from outside counsel.

Of course, many eDiscovery leaders who are members of the eDiscovery Committee attended this event, all of whom could well have been moderators or panelists themselves. I ran across our esteemed Co-Chair Sandra Rampersaud, of Cravath Swaine & Moore; Christopher Costello, of Winston and Strawn; Phil Cohen of Greenberg Traurig; Michael Parker, of Herrick Feinstein; and James Zucker, of Patterson Belknap. Sightings were also made of Jessica Perazzelli Ross of Deutche Bank; and James Sherer, of Baker & Hostetler.

All in all, an entertaining and substantive conference.







This entry was made by Craig Brown. Mr. Brown is President of the Legal Staffing Division of OmniVere LLC, an international eDiscovery company. He is a former Litigation and Antitrust Associate with Kaye Scholer and Litigation Partner with McLaughlin & Stern.

October 21, 2015

eDiscovery Recap and Suggested Improvements


Steven C. Bennett, a leading e-discovery practitioner (and co-chair of this Committee), examines, in his article (Linked Here)*, the history of eDiscovery and why problems persist in this "golden era" of eDiscovery. Mr. Bennett explains that, notwithstanding the efforts of attorneys, academics and the judiciary, the case-by-case variability of eDiscovery issues prevents a standard eDiscovery solution from being established. Nonetheless, Mr. Bennett suggests improvements in eDiscovery efficiency and processes.

This is a thought-provoking piece from an eDiscovery leader that is well worth reading.


* Originally published by LexisNexis: Bennett, E-Discovery: We still Haven't Found What We're Looking For, www.lexisnexis.com (Aug. 8, 2015)






This entry was made by Craig Brown and Yitzy Nissenbaum. Mr. Brown is President of the Legal Staffing Division of OmniVere LLC, an international eDiscovery company. He is a former Litigation and Antitrust Associate with Kaye Scholer and Litigation Partner with McLaughlin & Stern. Mr. Nissenbaum is currently a practicing attorney in NY. He was formerly Of Counsel with Kirkland & Ellis and an Associate with Kenyon & Kenyon.

September 17, 2015

Learn Tech By Attending a Tech Show


Attorneys often express that they want to learn how to use the latest technology, but claim that they are hindered from doing so because they are consumed by work. The question then is how busy lawyers can keep up with the latest technological innovations, which will only make their lives easier. In an instructive article from the NY Daily Record (Linked Here), Scott Malouf, a lawyer specializing in the use of technology, provides a few answers to this vexing problem. Scott particularly highlights how attending a Tech Show can enable attorneys to learn and adapt to new technology.





This entry was made by Craig Brown and Yitzy Nissenbaum. Mr. Brown is President of the legal staffing division of OmniVere LLC, an international eDiscovery company. He is a former Litigation and Antitrust Associate with Kaye Scholer and Litigation Partner with McLaughlin & Stern. Mr. Nissenbaum is currently a practicing attorney in NY. He was formerly Of Counsel with Kirkland & Ellis and an Associate with Kenyon & Kenyon.

June 2, 2015

Competence With Electronically Stored Information


As technology has continued to advance, it has become an integral part of the practice of law, specifically in the litigation context, where discovery is now "eDiscovery." It is now more than ever vital for a legal practitioner to be technologically competent, which is why the ABA revised its Model Rules of Professional Conduct to incorporate a comment on the need for technological competence. The critical question is what defines the contours of technological competence with respect to litigation. Ronald J. Hedges, a retired United States Magistrate Judge from the District of New Jersey, and Amy Walker Wagner, a partner at Stone & Magnanini LLP, address this exact question in the article Linked Here. In an exceptionally comprehensive fashion, they explain the scope of what technological competence entails for every stage and aspect involved in litigation. Any attorney involved in litigation should review this article to gain a better understanding of what an attorney's ethical obligations are with respect to technological competence.



Reproduced with permission from Digital Discovery & E-Evidence Report, 15 DDEE 134 (Apr. 2, 2015) Copyright 2015 by The Bureau of National Affairs, Inc. (800-372-1033)





This entry was made by Craig Brown and Yitzy Nissenbaum. Mr. Brown is President of B3 Legal, an international contract attorney and paralegal staffing firm. He is a former Litigation and Antitrust Associate with Kaye Scholer and Litigation Partner with McLaughlin & Stern. Mr. Nissenbaum is currently a practicing attorney in NY. He was formerly Of Counsel with Kirkland & Ellis and an Associate with Kenyon & Kenyon. He has served as Subcommittee Chair on eDiscovery with the New York County Lawyers' Association.

March 19, 2015

More LegalTech


See below for developments in the rapidly evolving law of eDiscovery. If you have any suggestions for content to be included in our updates, please email Craig Brown, the Chair of the Ediscovery Blog Subcommittee, at cbrown@b3legal.com.


Our last posting focused on our takeaways from the huge LegalTech show in NYC. Linked here is a substantive analysis of the show from fellow eDiscovery Committee member Scott Malouf. Analogizing to Jon Favreau's movie Chef, Scott opines that the growth of innovative eDiscovery companies should not negatively impact law firms, but rather that such companies "may actually present excellent opportunities for attorneys to provide more services." This was first published in the NY Daily Record.




This entry was made by Craig Brown and Yitzy Nissenbaum. Mr. Brown is President of B3 Legal, an international contract attorney and paralegal staffing firm. He is a former Litigation and Antitrust Associate with Kaye Scholer and Litigation Partner with McLaughlin & Stern. Mr. Nissenbaum is currently a practicing attorney in NY. He was formerly Of Counsel with Kirkland & Ellis and an Associate with Kenyon & Kenyon. He has served as Subcommittee Chair on eDiscovery with the New York County Lawyers' Association.

February 19, 2015

The Whirlwind of LegalTech


See below for developments in the rapidly evolving law of eDiscovery. If you have any suggestions for content to be included in our updates, please email Craig Brown, the Chair of the Ediscovery Blog Subcommittee, at cbrown@b3legal.com.


Our heads are still spinning from the recent LegalTech extravaganza in NYC. While LegalTech is a bit overwhelming, it provides an unsurpassed opportunity to learn about major developments in eDiscovery and legal technology. Hundreds of exhibitors provided a panoply of "must have" technological tools. Once you dare venture over to a booth to pick up that give-away you can't live without, you are serenaded with the virtues of the exhibitor's offering.


Beyond simply visiting the vendors, LegalTech provided us with ample opportunity to hear from industry leaders concerning how technology is shaping the legal landscape. The sessions covered a myriad of topics, including data privacy, Technology-Assisted Review, eDiscovery practice groups, legal ethics, social media, information governance, use of analytics, and cybersecurity. There was also an insightful judicial panel concerning impending changes to the Federal Rules of Civil Procedure.


Overall, LegalTech was a remarkable event, as always, giving all who attended the chance to further their knowledge of eDiscovery and the current technological tools. The opportunity to reconnect with old friends and crash a party or two was an added benefit to the jam-packed few days of LegalTech.





This entry was made by Craig Brown and Yitzy Nissenbaum. Mr. Brown is President of B3 Legal, an international contract attorney and paralegal staffing firm. He is a former Litigation and Antitrust Associate with Kaye Scholer and Litigation Partner with McLaughlin & Stern. Mr. Nissenbaum is currently a practicing attorney in NY. He was formerly Of Counsel with Kirkland & Ellis and an Associate with Kenyon & Kenyon. He has served as Subcommittee Chair on eDiscovery with the New York County Lawyers' Association.