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The “A” in AI Needs a Makeover

By Jeanne Somma, Director, Analytics and Managed Review

When I first joined RVM, I had a meeting with a law firm client that was supposed to focus on how RVM could use technology to cut costs for the firm and ultimately their client’s. What it turned into, though, was a frank conversation about the firm’s reluctance to rely on technology without something more to back it up. The client put a name to that “something more,” calling it “legal legs.” His frustration was that technology companies are selling tech to lawyers, and that these things don’t have the proper legal legs to warrant complete adoption.

At the time I found that to be an interesting and frustrating stance. There is case law, metrics, and a whole host of other things that I believed to be the legal legs necessary to back up the use of technology. I left that meeting with a sticky note that simply read “tech needs legal legs” and fear that I wouldn’t be able to bridge the gap between what is possible when using technology and what is acceptable to the lawyers that use it.

It’s no surprise that many of the conversations and presentations at this year’s Legalweek centered on arguably the most polarizing technology, Artificial Intelligence (AI). The use of the term in the legal sector has grown exponentially, and at Legalweek that talk seems to reach a fever pitch. But even as session after session describes the amazing things that AI can do for the legal community, I wonder if the mass adoption promised by presenters is reasonable in the current environment. Put another way, we need to focus on evolving the conversation, rather than just evolving the technology.

One of the sessions that I was excited to attend was The AI Bootcamp. There the conversation was more of the same, with unfailing optimism that not only could the technology solve the problems of the legal sector, but that the sector would soon embrace it for those reasons. The feeling in the room was that there was a wide agreement that AI would be adopted and permeate the legal sector. That is, until the questions started.

The questions from the audience dissected the great divide between the technology’s capabilities and an attorney’s faith in the result being the same or better than if they had used the processes they are used to. With each comment from the practicing attorneys in the room, I was reminded more and more of that sticky note in my office – “legal legs.” The technology is ready, but it seems the lawyers may not be.

As I listened to the dialogue between the adopters and the more reticent participants, the real difference of opinion boiled down to defensibility. Some attorneys were finding it hard to rely on a system that made decisions using algorithms that were not easily articulated. These attorneys wanted to be able to tell a judge or opposing party that the results of an AI exercise would be the same or better than if they had done it without the technology. How can they do that when the machine is doing the thinking?

Looking at my notes and seeing the word “artificial,” I realized that that was my stumbling block. It’s the implication that the results are being driven by a machine, which is not accurate. The type of technology that we use across the legal sector – whether in contract analysis, legal research, or predictive coding — is meant to take human understanding and amplify those results in order to provide the user with an efficient way to get to their result. The process is the same – a human with the required intelligence on the subject must train the machine on their thought process and desired results. The machine then simply takes that knowledge and applies it across large data sets faster than the human could. The machine isn’t deciding anything that it wasn’t already told by the human. What it does do is amplify the human’s intelligence. In other words, people are still driving the results, but with the assistance from the technology.

Termed as amplification rather than artificial we take the mystique out of the process. We bring the real definition to light – a process that leverages human intellect in order to train a machine to do the resulting work quicker. The result is the same because the human’s intelligence and input at the outset is the same. Also the ability to check the work is the same. The only thing that’s changed is the speed with which the process can be completed.

We need to change the conversation as technology and legal service providers. We need to focus on the amplification power of AI solutions and the defensibility of relying on the human subject matter expert. Until we can show the legal community that AI is not artificial at all, we will continue to have this battle between capabilities and adoption.

I for one want to solve this problem – if only so I can finally throw out that sticky note.

Q&A with Jeanne Somma About Legalweek

On January 29, legal and IT professionals from all over the country will be heading to Legalweek, hosted by ALM.

Legalweek LogoFor us at RVM, attendance at Legalweek is a must. Where else can you network, exchange ideas, and leverage the expertise of representatives from a large swath of the legal profession including corporate counsel, law firms, corporate IT, or any of the myriad professions that work together to provide eDiscovery services? We pride ourselves on delivering products and services that meet or exceed our customers’ expectations, so it is critical that we maintain our up-to-the-minute understanding of the landscape, which we can do at Legalweek.

To get a better understanding of Legalweek and why it’s so important to firms like RVM, we spoke with RVM Director of Analytics and Managed Review, Jeanne Somma.

Q: What makes Legal Week the “IT” place to be?
Legal Week is the perfect storm. It’s one of the biggest legal conferences in the U.S. and comes right at the perfect time. I know that I’m always focused on growing professionally and also finding ways to grow our business come January, and LegalTech really provides the right concentration of knowledge and technology to help me chart a course for the rest of the year. It’s also a conference that, if attended correctly, provides a way to tailor your experience to your needs. There are so many education programs, technology demonstrations, and chances to network that it’s like a live action choose-your-own-adventure eDiscovery style.
Q: What are you looking forward to seeing or hearing while you’re there?
Last June I joined RVM to head up the Analytics and Managed Review service lines. As part of that role I have been focused on the best use of all of the analytics tools and processes we have in house – especially as it comes to offering our clients what I think of as the next-generation managed review process meant to offer the most cost-effective and defensible experience in the market. That said, I am really looking forward to exploring what new analytics tools are out there, or how analytics technology has grown from last year in order to keep providing the most forward thinking services to our clients. As data volumes grow and technology quickens its pace, we can’t afford to accept that we are good enough. We need to keep ourselves at the forefront, and having all this access to knowledge during the conference will really help to achieve that.
Q: What do you see as RVM’s role at Legalweek?
RVM’s focus has always been on building relationships and providing outstanding customer service. We are excited to discuss the innovations RVM is rolling out in 2018 and really want to focus on having those discussions on a personal level. Our goal is always to give our customers an individualized and personal experience. So, while my colleagues and I are at the event we’ll be working on our connections – making time for existing relationships and making new ones – as well as improving our understanding of the issues in the market that affect our customers so we can provide more effective consultations. On the 29th (the first day of Legalweek) RVM will be hosting a private dinner with our leading corporate counsel and law firm eDiscovery clients to discuss the current state of eDiscovery and what we see happening in 2018.

Look for Jeanne and other members of the RVM team who will be on the ground at Legalweek to get their take on the show and on what 2018 holds in store for eDiscovery.

 

Key Considerations Before Migrating to Office 365

Companies of all sizes are preparing for their transition to the cloud. Office 365 (O365) will likely be a foundational part of that transition, particularly for small- and medium-sized businesses.  The transition is certain: it’s no longer a question of if, but a matter of when businesses will do it.

For small- to medium-sized business, there are a number of things that must be considered, from internal processes to compliance. While the benefits of migrating to the cloud may be clear: lower operational costs, simplicity, scalability, redundancy, and easy mobile access – the risks are easily overlooked.  We’ve compiled a list of things to consider before making the big move to the cloud.

    1. Data Protection
      Office 365 ChecklistCompanies with highly sensitive data naturally have heightened security needs and would be wise to consider how comfortable they are with having all of their data stored on a public cloud server. While O365 is very secure – it maintains high standards for backup and encryption procedures – migrating entirely to the cloud is effectively entrusting your data to a third party. A solution partner like RVM can help your organization adopt best practices such as minimizing the identity information copied to the cloud, providing policy to block unauthorized access, and employing multifactor authentication and integrated device management. Industry standard security parameters are available and can be customized to fit your organization’s requirements. Depending on the complexity or simplicity of your environment, it may be recommended to look for a hybrid solution where some mailboxes remain on premises as others move to the cloud. This allows you to test as you migrate.
    2. Compliance
      Many businesses today are bound by compliance. While this may have prevented businesses from adopting the cloud in years past, it’s less of a hindrance now that the Financial Conduct Authority has approved cloud usage (including public cloud providers). That said, understanding your company’s compliance responsibilities should still be a consideration before migration.  These may affect your company’s use of document retention and  data export settings, should you need to demonstrate documentation in response to a subpoena or compliance investigation.  Your licensing package, volume of data, and software expertise impact how efficient or inefficient this endeavor can be.
    3. Litigation Readiness
      Often companies overlook the business need to be litigation ready. They look at solutions like O365 as a means to reduce their operational costs related to IT and forget that there may be an impact down the road, like when faced with an SEC subpoena or a civil litigation.  When implementing O365, companies need to  conduct analysis beyond email, and consider additional impacts such as email archive solutions, integration with other business systems, and how to functionally use it to accomplish data exports or other recovery tasks.  Companies often realize their inability to accomplish these things too late, when they are faced with subpoenas and document requests, and end of paying a lot of money to quickly fix what they already spent a lot of money to implement.
    4. Managing Accounts
      For small- or medium-sized businesses, finding a solution to automate the cumbersome process of setting up accounts across cloud apps is crucial to success. Tools that enable provisioning of users for all services can be difficult — especially if you have custom or legacy apps that require complex configuration – but often pay off, as provisioning is typically the easiest way to add new users into the Active Directory. There are a number of options for managing synchronization between Active Directory and O365, supporting third party applications and single sign-on, and providing multiple accounts for multiple applications.
    5. Licensing
      O365 licensing includes many options. Many users will require different levels of access, based on use case. A valuable asset of O365 is the ability to avail the right toolsets to the right users. The platform also enables administrators to track license consumption and availability, reducing costs and simplifying true-ups.
    6. Hands off – Patch Management & Control
      Moving to O365 means giving up control over elements such as the patch management process, software upgrades, and other administrative tasks that could previously be performed on premises. Many organizations use third party utilities to manage their internal servers (Microsoft Exchange, Lync/Skype and SharePoint), but utilities designed to be installed directly on a server won’t work with O365 – as the management is done through O365’s portal. One benefit of remote management is that Microsoft pushes out environment updates regularly, meaning that users will always be running the most recent tools.

Above all, there is no one right answer for all organizations. Each should take the time to consider all the factors mentioned above (and any others that are relevant to the company or industry) and weigh the pros and cons. Should your company elect to migrate to O365, it is critical that you do so strategically, and with consideration for the safety and security of your data. Hiring a company like RVM to oversee the migration can ensure a proper setup protecting your company from threats now and in the future.

Leading Technology Through Strategy

As 2017 comes to a close we at RVM are taking stock of the changes we’ve seen this year and honing our strategies to remain on the forefront of analytics and technology application in eDiscovery in 2018. eDiscovery has undergone immense change as technology has evolved to tackle growing data sources and foster the needs of the attorneys wading through them. While that evolution has resulted in improved workflows adoption of these workflows has thus far been slow.

Technology Options

There are myriad technology options – a seemingly unending list of interesting tools that promise to push our industry into the future. It would be easy to race right to artificial intelligence (AI) and push ourselves into the sphere of the futurists. However, as we discussed in our recent webinar “Demystifying Analytics, Automation, and Predictive Coding in eDiscovery” there is no one-size-fits-all solution for the best application of technology and analytics, and the focus should be on the project process and goals – not the technology.

The webinar was designed to make attorneys comfortable with the many ways analytics can be used to accomplish your matter’s goals in the most efficient and — more importantly — defensible way. We also wanted to highlight that the courts are quickly adapting to these changes and embracing counsel’s use of technology up to and including predictive coding. The most pertinent decisions are summarized in our webinar materials. Full versions of those cases can be found in the Sedona Conference TAR Case Law Primer.

Those thoughts were echoed in a recent article for LegalTech News entitled “eDiscovery Leaders Look to Methodology, Not AI, to Update Toolkits.”

Applying the Technology

The article recognizes industry experts who agree that parties have become more comfortable with the technical aspects of eDiscovery and seem more willing to utilize technology to accomplish their goals. They see increased adoption of technology-assisted review (TAR) and predictive coding on the rise, and the courts support this evolution. The continued and thoughtful use of technology will make for better case outcomes, but the process needs to match the goals. The article’s author, Ralph Losey, points out that “Software improvement by vendors should be a constant process, but that is usually beyond the direct control of lawyers. What we can control is the methodology.” We agree with this sentiment.

Our aim for 2018 is to continue to be on the cutting edge of technology application for our clients, by coupling it with strategic consulting in order to leverage the right technology and process to meet a client’s goals. Without the process, the technology will not succeed on its own.

It Pays to Use Formal Discovery

Preparing for litigation comes with a mountain of expenses and challenges —much of which are attributable to discovery. And, as data volumes grow, so too, do those discovery costs. Unfortunately, eDiscovery is often misunderstood by clients and rationalized to be more complicated than it needs to be.

In an effort to contain the rising tide of costs and perceived complexity, some litigants are undertaking “informal discovery” — a process that on its face seems like a cost-effective and ideal option. It allows for the exchange of key documents without the burden of production format, custodian tracking or consideration for defensibility. In a common scenario the client will comb through their own inbox and send the relevant emails to counsel.

Sounds like a good deal, right?

“Clients don’t like the idea of paying money for things that they believe they can do themselves,” says Greg Cancilla, Director of Forensics at RVM Enterprises. “Collecting data can seem more like a job for an intern than an eDiscovery and legal forensics firm.”

Although it might seem like a cost-effective approach, parties that engage this way may be in for trouble.

The Trouble with Informal Discovery

Common Missteps in Informal Discovery
Self-selection of relevant documents
Self-collection of ESI
Emailing documents to counsel as attachments
Copying and pasting files to external media or an FTP site
Producing ESI by a) printing to hard copy or b) converting the files to .pdf
Bates numbering documents individually

A major concern with informal discovery is the risk exposure regarding authentication of evidence and the potential extra time and costs one might incur to correct the collection of data.  While eDiscovery providers have developed systems and technologies that enable them to work quickly and efficiently in an appropriate review environment, an informal approach does not offer those advantages. eDiscovery providers take the appropriate time and use the correct processes to collect data so that it can be done once, efficiently, and defensibly. With informal discovery, if further searches are warranted, the entire process may need to be repeated, adding undesirable costs and time.

Another issue is the likelihood of altering metadata. By using the “copy and paste” — or “foldering” —approach to data collection, you run the risk of modifying key dates such as last opened, last modified, etc. This can make authentication problematic, and makes it harder to sort and de-dupe files that have been modified, again adding to cost.

The most important shortcoming of the informal method is the unnecessary risk of misstating the scope of the production of electronically stored information (ESI). (Applied Underwriters, Inc. v. American Employer Group). In some circumstances, courts have held that self-identification and collection may not even be defensible.

According to Cancilla, “Self-collection puts all the responsibility on the custodian to determine what ESI is relevant. Foldering in particular can be troubling, as even well-intentioned clients may simply not realize that certain sources, a sent mail box for example, need to be included in the folder to be produced.”  In today’s age of electronic information, it is important to note that relevant information is not just the substance of the document, but also the metadata — or surrounding information — of the document.  FRCP Rule 34(b)(2)(E) advises that a party must produce documents “as they are kept in the usual course of business” or must “organize and label them to correspond to the categories in the request.”  “Informal Discovery” adversely impacts that instruction.

Changes on the Horizon

Two proposed amendments to Federal Rule of Evidence 902 are set to take effect on December 1, 2017 that will significantly affect the collection of ESI and its admissibility. In addition to providing a structure for standardizing ESI collection, these amendments, 902(13) and 902(14) demand a stricter, more organized method of collection that is outside the scope of informal eDiscovery. Where the current version of Rule 902 allows for self-authentication of certain types of documents, the new additions allow for authentication of electronic evidence by an affidavit of a “qualified person” who can certify in writing that the document was obtained with the requirements of Rule 902(11) and (12).

“The new rules are changing everything,” continues Cancilla. “It doesn’t make any attempt to disincentivize self-collecting, but by making ESI gained through formal discovery ‘self-authenticating,’ the advantages are well worth any cost to work with the professionals.”

The new rules cover records that can be authenticated using a document’s hash values, which are assumed to be unique. For purposes of authentication, hash values are the backbone of the proof that Rule 902 requires, but not the only allowable method. As the Advisory Committee on Evidence notes, “[t]he rule is flexible enough to allow certifications through processes other than comparison of hash value, including by other reliable means of identification provided by future technology.”

As December draws closer, parties must consider the implications of these rule changes and how they may affect authentication in upcoming trials. If they wish to take advantage of the new rules they must be prepared to track digital fingerprints on any new collection. If they don’t, they stand to spend more time and money authenticating their documents, including having their own in-house IT and network administration staff called to testify.

Says Cancilla, “Using the informal method of discovery is like driving with too little insurance: you’ll save money for a while, but if anything bad happens, you could wind up paying for it. Companies should remember that a well-documented and formalized data collection process is a small investment relative to the overall eDiscovery spend, but can significantly affect accuracy and defensibility.”

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Greg Cancilla, EnCE, ACE is a Certified Computer Forensic Engineer and the Director of Forensics at RVM. He has performed countless digital forensics investigations since entering the field in 2003. Additionally, Greg has offered testimony in numerous cases, including presenting a key piece of evidence in Ronald Luri v. Republic Services, Inc., et al., which rendered the largest verdict in the State of Ohio’s history.

4 Questions About Media Preservation & Restoration

Last month RVM announced that it had acquired The Oliver Group – experts in collecting and preserving data stored on tape and other offline media.

Anyone involved in litigation discovery and collection understands the critical nature of electronic data. Long gone are the days of collecting paper from centralized file cabinets. Instead, companies are challenged with collecting data from multiple sources, such as email, hard drives, file shares, cell phones, social media, and older media including backup tapes. At times these backup tapes and offline media, often found tucked away in storage closets, can be the most burdensome and expensive to collect and process.

Unfortunately, with so much attention on cloud solutions (e.g., SAN and NAS storage, and other easy data storage options) there just aren’t as many companies capable of handling this kind of data properly. However, collection and authentication of offline files in a defensible manner is just as critical as for their digital brethren.

That’s where RVM and The Oliver Group come in. To learn more about the acquisition and why it’s such a game changer, we spoke to Chief Operations Officer, Sean King.

 

Sean KingWhat was the impetus for this acquisition?

RVM was interested in meeting its clients’ needs by becoming a one-stop shop for forensics, media restoration, and eDiscovery services. We saw The Oliver Group and the services they offer as a great partner that is very well-known and respected among clients and competition in the industry.

How will media preservation/restoration be folded into the work that RVM currently does?

Media preservation and restoration are a natural extension of RVM’s services. We’ve actually had a long working relationship with The Oliver Group, so we’re familiar with them and how they work. Our goal has always been to manage our clients’ eDiscovery needs – from data collection through document review and production – and this acquisition makes that possible in such a way that clients benefit with a streamlined process and lower costs.

With so many tech and media companies in the market what makes The Oliver Group’s work special?

The Oliver Group is one of the select few companies that understands media and its application to legal discovery requirements. RVM and The Oliver Group are both focused intently on the defensibility of the data that are collected – that means having policies that indicate compliance with a comprehensive audit trail and chain of custody. We have to be able to track the movement, access, and location of the data in question throughout the life of the evidence, and that is not something that a commercial media firm is equipped to do.

What do you see as the long-term future of media preservation/restoration?

There will always be a need for media preservation and restoration as companies respond to disaster recovery, compliance requirements, and litigation needs. Data management continues to evolve, and being able to support all storage mediums is a requirement for service providers looking to offer clients a cost-effective and defensible offering.

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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!

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RVM to Participate in the 2017 NAMWOLF Annual Meeting & Law Firm Expo in September

In alignment with our dual passions for education and diversity, RVM is pleased to be a sponsor and CLE presenter at the 2017 NAMWOLF Annual Meeting & Law Firm Expo September 17-20, 2017 in New York City.  The National Association of Minority & Women Owned Law Firms, founded in 2001, is committed to promoting diversity in the legal profession by fostering successful relationships among preeminent minority and women owned law firms and private/public entities.  The event is full of networking opportunities and continuing legal education sessions on provocative and poignant topics that face legal professionals today.

RVM’s Manager of Education & Development, Talia Page,  will be moderating an esteemed and diverse panel of attorneys from around the country on a topic entitled OMG, There’s Evidence in My Pocket!? How the Proliferation & Accessibility of Data Affects Discovery, & What You Need to Know about the New Federal Rules on Monday September 17th from 1:45pm-2:45pm.  In this session, we will address hot topics and trends in eDiscovery using recent case law to work through some of the challenging issues litigators face in the digital age in light of the new Federal Rules.  For more information on NAMWOLF and other CLE opportunities, visit www.namwolf.org.