Industry News & Trends

Keeping in Step with eDiscovery

Like many people, I am obsessed with my fitness tracker.

Not only do I participate in weekly challenges with friends and strangers alike to see who takes the most steps per day, but I also rely on the heart rate monitor to initiate breathing exercises in order to alleviate stressful situations (hello airplane turbulence!). And, while my collection of non-smart watches gathers dust in the dresser, I’ve added classier bands to accessorize my tracker. Through a smartphone app I can generate a report on how many miles I’ve walked, stairs I’ve climbed, calories I’ve burned and when I’m active or inactive. And for those who haven’t hopped on the fitness band-wagon, the handy iPhone can often collect all the same data as a wearable.

smart watch

The Gartner research company forecasted earlier this year that “8.4 billion connected things will be in use worldwide in 2017, up 31 percent from 2016, and will reach 20.4 billion by 2020.”  That’s a lot of information!

So what’s the takeaway from this story? Evidence.

Since the advent of email, litigators have been required to think literally out of the box for discoverable evidence. And, as technology advances, attorneys are increasingly expected to be “sufficiently versed in matters relating to their clients’ technological systems to discuss competently all issues relating to electronic discovery.” Gone are the days when a simple forensic collection of email and loose files from the company network were sufficient.

In 2014 a Canadian law firm set a legal precedent in a personal injury case by using data from a Fitbit fitness tracker to prove that their client suffered detrimental effects from an accident that resulted in decreased physical activity. In that case, the key data came from a Fitbit, but the same principles can apply to data from apps, social media accounts and more. Already criminal law practitioners are looking to use data from pacemakers, key fobs, interactive smart speakers and electronic personal assistants such as Amazon’s Alexa or Apple’s Siri. Connectivity is the new norm, and as a result lawyers have an ever-expanding pool of potentially relevant information to sift through.

Having an acute awareness of these new potential sources of electronically stored information (ESI) is only the first step in staying on top of your eDiscovery game. Amendments to Rule 902 of the Federal Rules of Evidence, set to take effect December 1, 2017, give preferential treatment to ESI “collected in a forensically sound manner,” which preserves the audit history and maintains a strict chain of custody. So resist the urge to have your client self-collect.

Going into the holiday season, amid the flood of advertisements for the latest gadgets and gizmos, keep in mind those very same devices could hold critical evidence for a future case!

###

RVM Recognized Amongst The “20 Most Promising Legal Technology Solution Providers 2017” by CIO Review

CIO Review Magazine released their Legal Technology special edition and have recognized RVM Enterprises, Inc. in an elite group of the 20 Most Promising Legal Technology Solution Providers 2017.

RVM’s Chief Technology Officer, Geoffrey Sherman, was interviewed in honor of the recognition and spoke about RVM, our products, and the eDiscovery landscape. As CTO, Geoffrey is committed to innovating the architecture, security, progression and maintenance of RVM’s corporate infrastructure. He leads a team of engineers and support administrators that serve RVM’s staff and clients.

“The eDiscovery ecosystem is transforming like never before. Technology-enabled eDiscovery solutions and tools are simplifying litigation processes and minimizing errors. However, with the profliferation of data, organizations are struggling to identify, collect and manage electronically stored information, impeding their ability to make informed decisions,” says Geoffrey Sherman.

Read more here.

RVM is proud to be recognized for our services and is committed to excellence for our customers.

 

 

A Review of the Latest FRCP Amendments

In December 2006, the Federal Rules of Civil Procedure (FRCP) were amended. Practical changes were made to the discovery rules, introducing the management of electronically stored information (ESI). eDiscovery was defined in Federal Rule 34 (a) (1) (A) as “any designated documents or electronically stored information—including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations—stored in any medium from which information can be obtained … directly.”

Gavel and justiceSince that time, ESI continues to be the hot topic of discovery requests. Lawyers have been struggling with the lingo and technical requirements, shying away from a foreign universe overtaken by savvy litigators and eDiscovery professionals, and various government agencies that are extremely aggressive in taking control of discussions pertaining to the preservation, collection, review and production of ESI.

eDiscovery isn’t going away. The December 1, 2015 amendments to the FRCP reaffirm this certainty. The changes, which sprouted from a process spearheaded by leading judges, lawyers and academics, are aimed at making the courts more accessible by monitoring escalating costs and delays driven by eDiscovery in litigation and government investigations. As the volume of ESI keeps growing exponentially, so have the costs of storing, organizing, searching and sharing that information. Concerns were raised that this problem undermined meaningful access to the courts. Therefore, the changes to the Rules reinforced the concept of proportionality, balancing the costs of sharing information with the objective of speedy and affordable disposition of legal actions.

A few key points of the FRCP revisions are:

  • Rules 4 and 16 accelerate the issuing of scheduling orders down from 120 days to 90 days, and once the defendant has appeared, the timeframe goes to 60 days. The scheduling conference must also happen in person, dropping the criteria “telephone, mail or other means”. The faster timelines require the ability to quickly identify ESI sources, so that the parties can take control of the scheduling conference, and discuss proportionality and the scope of discovery;
  • Rule 26 emphasizes proportionality: for information to be discoverable, it must be both relevant to a party’s claim or defense and proportional to the needs of the case;
  • Rule 34 introduces production timing, which, along with Rule 16, will force parties to address eDiscovery early in the process, and result in speedier case timelines;
  • Rule 37 specifies that the parties take reasonable steps to preserve ESI, and curative measures will be unavailable where ESI was lost or destroyed outside a party’s control. Efforts to restore lost ESI should be proportional to the importance of the ESI to the claims or defenses, which clearly removes the burden of over-preservation of ESI on the parties.

As new methods of digital communication are developed, the universe of potentially discoverable ESI will continue to expand. The added emphasis on proportionality warrants that resource-constrained parties have an equal access to the courts. Leading law firm members and eDiscovery providers have agreed that the FRCP amendments were necessary, but the success of the revisions depends, as previously noted by the Sedona Conference Cooperation Proclamation, on the cooperation of the parties, in conjunction with the courts’ willingness to play a vital role in making the rules work. Metropolitan Corporate Counsel recently published a special section, “Perspectives on Procedure: A Civil Rules Roundtable,” discussing changes to the Rules. RVM’s Managing Director, Sal Manusco discussed the impact of Rules 4 and 16 in his thought piece entitled “Early and Often.”

Since the goal of the rules is to achieve a “just, speedy and inexpensive determination of every action,” the continued commitment to the spirit of the rules changes in the day-to-day practice will ensure fairness, time and cost-efficiency.

Year-End Countdown: The Best of eDiscovery (Part 4/4)

RVM’s Managing Director of Professional Services Laura Kibbe shares her thoughts on the changes and challenges that have impacted the eDiscovery industry this year, and what we should expect from the fast approaching year 2016.

To read Part 1 of Laura’s interview, click here. To read Part 2, click here. To read Part 3, click here.

Info governance imageCould you talk to us about the potential legal conflicts created by the preservation and production of “international” information, and the power of domestic privacy laws over that information?

With the fall of safe harbor and certain local European DPAs suggesting that even model contracts or BCRs might not offer adequate protection, the global company needing to transfer personal data to the US for any reason could find itself in a very real conflict situation: meeting US regulatory or litigation requirements vs. non-compliance with data privacy requirements. While safe harbor in the past offered a practical way to appease these competing tensions, in light of the Schrems[1] decision, as of right now, there is no “safe” alternative. The reality is that every day companies are making that risk decision when they have to move data to do business globally.

Another challenge of the future is the reduction of eDiscovery costs. What should lawyers expect when they hear the words “information governance”?

Information governance is a buzzword that encompasses a lot of things. It could mean litigation readiness, litigation hold, data framework… In general, companies should consider information as an asset. They should create a budget to protect that asset. General Counsels shouldn’t be shocked if a judge asked “Why is your house not in order?” Service providers can certainly help determine which projects to undertake, and help execute these projects. Information governance is essential to be better prepared during litigation.

You mentioned the amended FRCP. Could you tell us more about how these revisions will improve e-Discovery?

I think the biggest thing to note about the rules is that in large part they are a codification of what many of us have been preaching as best practices for a number of years. Of course they are a compromise portion—which means both sides are not completely happy—but in general, they strike the position that if you are reasonable and proceed in good faith, if inadvertent mistake should happen, there should not be case altering draconian sanctions. And if you ask for something that is so disproportionate to the case at issue, you probably shouldn’t get it. That should give companies some solace that cases will be fought on the merits, and plaintiffs a cautionary warning that frivolous “gotcha” actions are a thing of the past. All in all, I believe they move the ball forward, maybe not as far as all would like it but certainly they help create a framework I am comfortable working with my clients within.

[1] On October 6, 2015, the Court of Justice of the European Union declared in a judgment in case C-362/14, Schrems v. Data Protection Commissioner, that safe harbor rules don’t automatically ensure an adequate level of protection of personal data transferred across state lines. Therefore, national supervisory authorities are allowed to examine levels of protection of personal data, and increase that protection if necessary.

Year-End Countdown: The Best of eDiscovery (Part 3/4)

RVM’s Managing Director of Professional Services Laura Kibbe shares her thoughts on the changes and challenges that have impacted the eDiscovery industry this year, and what we should expect from the fast approaching year 2016.

To read Part 1 of Laura’s interview, click here. To read Part 2, click here.

European FlagRegarding the disappearance of safe harbor rules, could you tell us a bit more about how global information sharing impacts eDiscovery?

Almost every company today is global in some form. It simply makes sense to move information to meet business needs, and it is most efficient for information to be borderless. Because privacy laws directly impact the ability of that information, when it contains personal data, to make that onward transfer, creating a framework that allows movement while still respecting he privacy laws is a tricky proposition for many companies. Add to that that the regional laws (e.g., the EU Data Directive) are only floors above which any individual country (e.g., France) can feel free to increase required protections, and a company can be faced with an extremely difficult regulatory scheme to manage even something as simple as a global payroll.

How will the increase of regulations abroad affect legal proceedings in the United States?

Judges will say “I don’t care that the documents are protected by French law, you need to produce the information or you go to jail”. The amended FRCP Rule 37(e) introduces good faith, so companies can’t hide behind domestic privacy laws, but they won’t be penalized if they did everything in their power to obtain the relevant information. A demonstration of good faith is clearly a demonstration of competence. Lawyers must understand the technology, and if they don’t, they must associate themselves with experts who can assist them effectively. Service providers have that high level of competence, and can certainly help with strategy.

To be continued…

Year-End Countdown: The Best of eDiscovery (Part 2/4)

RVM’s Managing Director of Professional Services Laura Kibbe shares her thoughts on the changes and challenges that have impacted the eDiscovery industry this year, and what we should expect from the fast approaching year 2016.

To read Part 1 of Laura’s interview, click here.

world webDuring the conference, you moderated a panel on the future of eDiscovery. What does the future of eDiscovery look like?

Our keynote, Chris Surdak, was an incredible speaker and truth be told, scared all of us just a bit. The future of technology and how we interact with it in our everyday lives, from surveillance cameras to predictive analytics, not only changes the way we live as humans but drastically changes the practice of law. The message was clear: either you get with the program and evolve as a lawyer embracing this technology or using it to better serve your clients, or you will have no practice. eDiscovery will not be as much a specialty in the future as much as simply the way discovery is done. Lawyering will be more like a business process in many ways, and while the strategic thinking will always be unique and valued, certain tasks, like many included within eDiscovery, are business processes that the most efficient lawyers will get.

Since eDiscovery is becoming so prevalent, will paper discovery completely go away?

No. There will always be paper, just less of it. But now any printed piece of paper can become a significant piece of evidence during proceedings, so we have to pay attention to the paper we leave behind. To avoid any potential friction, it will be common practice to request an agreement from opposing counsel clearly stating that no paper discovery is necessary.

What other challenges does the industry face?

Big data will keep growing, but so will the technology to weed out junk data. Wearables and the internet pose some interesting challenges because of the privacy and other implications incident to the technology. And there’s definitely the issue of the disappearance of safe harbor rules and the future of privacy. How eDiscovery will be impacted is still unclear.

To be continued…

Year-End Countdown: The Best of eDiscovery (Part 1/4)

RVM’s Managing Director of Professional Services Laura Kibbe shares her thoughts on the changes and challenges that have impacted the eDiscovery industry this year, and what we should expect from the fast approaching year 2016.

year 2015-2016 smallHi Laura, thank you for taking the time to jump on a quick interview for us. You’ve been working in the eDiscovery industry for twenty-five years. In your opinion, what is the biggest challenge of eDiscovery today, compared to ten years ago?

Thank you for having me! The biggest challenges are volume and globalization. Data volumes are growing exponentially and data is stored literally everywhere on the globe. Knowing what a client has and where it is can be one of the most significant challenges when facing a litigation or investigation. While technology is constantly evolving and new technologies are being introduced (e.g., new social media tools here today that weren’t here yesterday), the volume is still there, and finding relevant data challenges the day to day operations.

When it comes to eDiscovery, lawyers have traditionally been a bit resistant to becoming more tech savvy. The Georgetown Advanced eDiscovery Institute (AEDI) has been educating law professionals for years about the latest eDiscovery developments. Could you tell us a bit about the eDiscovery institute?

The Georgetown AEDI is a program put together by the Georgetown Law Continuing Legal Education Center. It is one of the oldest ediscovery CLE programs in the country, and is most well-known for its judges’ panel that attracts the most notable and influential judges in the area.

Do you feel today the barrier between the legal and tech fields is less unsurmountable, thanks to programs such as Georgetown Law’s CLEs at the AEDI?

Definitely. What the AEDI has done is bring technologists, information scientists, lawyers and judges together in a forum to discuss all the current issues and challenges, and work through them hearing from all voices. It is a forum where there are no wrong or right answers but a place to raise all sides of the argument. When the attendees go back to the real world, they can better understand the facets of the different issues they will face as they litigate/handle an investigation, etc.

You serve as an advisory board member for the AEDI. How long have you been involved and what are your responsibilities?

I’ve been with the AEDI since its inception. I am a member of the Advisory Board which meets 1-2 times a year to help influence program content and speakers. I have also been part of the planning committee for specific programs on several occasions and am privileged to be Co-Chair for the 2015 and 2016 programs.

The AEDI organized a program this past November 19-20 which you co-chaired. Could you tell us a little more about your experience at the conference?

As co-chair this year, I was admittedly a little crazed trying to assist the top notch Georgetown staff in assuring everything went off without a hitch, and making sure all speakers had materials, and judges had what they needed, etc. This year was the first time the conference moved back to DC proper since leaving the law school grounds. The conference started at the law school and quickly gained in popularity such that we had to move to larger venues outside the city. We moved back this year to the JW Marriot with a record breaking attendance and the most breakout sessions we have ever had. We had multiple breakout racks so that attendees could take deeper dives into any number of subject areas after getting higher level overviews at the plenaries.

To be continued…

Wearable Technology: Hot Holiday Gift or eDiscovery Challenge?

woman with apple watchWill you buy a smartwatch this holiday season?

Wearable technology is the new black, and every player in the market is vying for top honors to be the next gadget for which customers will fight. While Santa will be placing a smartwatch under a lot of trees, eDiscovery professionals will be looking to see what new challenges will arise.

There are still some limitations in the abilities that these wearable devices have and will have, although they already present a challenge in eDiscovery. When information is shared among multiple items, such as a watch, a smartphone and a cloud, issues of preservation, privacy, and security arise. And what wearable technology can do now is enough to be used in a lawsuit. Fitbits, which track health related information, are being used as “witnesses” of an individual physical activity. A Fitbit has been used in a personal injury claim. The plaintiff was injured four years ago when she was a personal trainer, and her lawyers used her Fitbit data to show that her activity levels were lower than the baseline for someone of her age and profession to prove she deserved compensation. In another rape case, the Fitbit contradicted the statements of the victim by showing that at the time of the crime, she was awake and walking around, when she claimed she had been attacked while asleep.

All the metadata created by a wearable device is discoverable, and if it’s relevant to the matter at hand, then it’s evidence. And consumers might not be aware of this fact when they purchase a device. Wearable technology opens yet another door into a world that will slowly provide answers and best practices, case by case. Lawyers will have to be well-versed in the technology, and get assistance from eDiscovery experts if necessary. After all, smartwatches have been designed to provide much more than the time.

Are you ready for it?

RVM Addresses the Latest FRCP Amendments

RVM Enterprises, Inc. was selected to participate in Metropolitan Corporate Counsel’s (“MCC”) roundtable on the recent changes to the Federal Rules of Civil Procedure. Prior to the amendments which took effect on December 1, 2016, the FRCP were notably amended in December 2006, and practical changes were made to discovery rules, introducing the management of electronic records, or eDiscovery.

MCC FRCP article

These latest changes, which sprouted from a process spearheaded by leading judges, lawyers and academics, are aimed at making courts more accessible by monitoring escalating costs and delays driven by eDiscovery in litigation, and government investigations. The MCC’s roundtable gathered contributions from members of world’s leading law firms and eDiscovery experts. Salvatore Mancuso, Managing Director at RVM Enterprises, Inc., was selected to participate.

“The spirit of the changes to the FRCP in 2006 echoed a movement of acting early and often. The recent changes continue to reflect this idea,” said Mr. Mancuso. “The amended rules 4 and 16 seek to increase awareness of ESI issues, invite parties to get involved in the discussion of these ESI issues sooner rather than later, and empower the bench to play a more active role in the resolution of the matter at hand.”

Sal Mancuso, an industry expert with more than 25 years of experience providing litigation and practice support services from both the law firm and the service provider side of the industry, maintains and strengthens client relationships through establishing protocols based on best practices. Sal has achieved tremendous success creating and restructuring litigation support departments at Am Law 100 firms.

“It’s an honor to be a part of “Perspectives on Procedure: A Civil Rules Roundtable”,” added Mr. Mancuso. “It is important that the Courts and eDiscovery industry experts continue to work together to increase awareness and collaboration between the parties.”