e-discovery 2.0

As we approach LegalTech New York next week, oft referred to as the Super Bowl of legal technology events, there are any number of helpful blogs and articles telling new attendees what to expect, where to go, what to say, what to do. Undoubtedly, there’s some utility to this approach, but since we’ll be in New York, I think it’s appropriate to take a more skeptical approach and proffer a list of what *NOT* to do at LTNY.

1. DON’T get caught up in Buzzword Bingo. There are already dozens of sources attempting to prognosticate what the most popular buzzwords will be at this year’s show.  Leading candidates include “predictive coding,” “technology assisted review,” “information governance,” “big data” and even the pedestrian sounding “sampling.” And, while these terms will undoubtedly be on booths and broadcast repeatedly from the Hilton elevator, it doesn’t mean an attendee should merely parrot these without a deeper dive.  Here, the key is go behind the green curtain to see what vendors, panelists and tweet-ers actually mean by these buzzwords, since it’s often surprising to see how the devil really is in the details.
2. DON’T get a coffee at the Hilton Starbucks. Yes, we all love our morning coffee, but there’s no need to wait in the Justin Bieber-esque line queue at the in-hotel Starbucks. There are approximately 49 locations in a ½ mile radius, including one right across the street. There’s also the vendor giving out free coffee on the second floor, so save yourself 30 minutes of needless line waiting.
3. DON’T ride the Hilton elevator. For those staying or taking meetings at the Hilton, the elevator lines can be excessively long.  Once you finally get on, you’ll wish they’d been even longer as you then find yourself subjected to the brainwashing of vendor announcements while you make multiple stops on your way to your desired floor. Either take the stairs or, if that’s not possible, try to minimize the trips to keep your sanity. Or, plan B – bring your iPod.
4. DON’T talk to booth models. It’s tempting to gravitate to the most attractive person at a given vendor’s booth, but they’re often hired professionals designed to get you in for the all-important “badge scan.” Instead, focus on  the person who looks like they’ve been in the same company-branded oxford for 48 hours, because they probably have. While perhaps less aesthetically pleasing, they’ll certainly know more about the product and that’s why you’re there after all, isn’t it?
5. DON’T pass out your resume on the show floor. While certainly a great networking opportunity, LTNY isn’t the place to blatantly tout your professional wares, at least if you want to keep your nascent job search on the down low. And, if you want to have more private meetings, you’ll need to do better than “hiding out” at the Warwick across the street. For more clandestine purposes, think about the Bronx.
6. DON’T take tchotchkes without hearing the spiel. There are certain tchotchke hounds out there who roam around LTNY collecting “gifts” for the kids back at home. While I won’t frown on this behavior per se, it’s only courteous to actually listen to the pitch (as a quid pro quo) before you ask for the swag. Anything less is uncivilized.
7. DON’T get over-served at the B-Discovery Party. After a long day on the show floor you’re probably ready to let loose with some of the eDiscovery practitioners you haven’t seen in a year.  But, in this era of flip cams and instant tweeting, letting your hair down too much can be career limiting. If you haven’t done Jägermeister shots since college, LTNY probably isn’t a good time to resume that dubious practice.
8. DON’T forget to take your badge off (please!). Yes, it’s cool to let everyone know you’re attending the premier legal technology event of the year, but once you leave the show floor random New Yorkers will heckle you for sporting your badge after hours – particularly the baristas at Starbucks. Plus, if you’ve broken any of the other admonitions above, at least you’ll be more anonymous.
9. DON’T forget to bring a heavy coat, mittens and scarf. Last year there was the infamous ice storm that stranded folks for days (me included). Even if the weather isn’t that severe this year, anyone from warmer climates will need to bundle up, particularly because it’s easy to unintentionally get caught outside for extended amounts of time – waiting for a cab in the Hilton queue, eating at Symantec’s free food cart, walking to a meeting at a “nearby” hotel that’s “just a block or so away.” Keep in mind those cross town blocks are longer than they appear on a map.
10. DON’T forget to learn something. Without hyperbole, LTNY has the world’s greatest collection of legal/technology minds in one place for 3 days.  Most folks, even the vaunted panelists, judges and industry luminaries are actually quite accessible. So, at a minimum, attend sessions, ask questions and interact with your peers. Try to ignore the bright lights and signs on the floor and make sure to take some useful information back to your firm, company or governmental agency. You’ll undoubtedly have fun (and maybe a Jagermeister shot, too) along the way.

It’s no surprise that the first industry to be heavily regulated regarding social media use was the financial services industry. The predominant factor that drove regulators to address the viral qualities of social media was the fiduciary nature of investing that accompanies securities, coupled with the potential detrimental financial impact these offerings could have on investors.

Although there is no explicit language in FINRA’s Regulatory Notices 10-06 (January 2010) or 11-30 (August 2011) requiring archival, the record keeping component of the notices necessitate social media archiving in most cases due to the sheer volume of data produced on social media sites. Melanie Kalemba, Vice President of Business Development at SocialWare in Austin, Texas states:

“Our clients in the financial industry have led the way, they have paved the road for other industries, making social media usage less daunting. Best practices for monitoring third-party content, record keeping responsibilities, and compliance programs are available and developed for other industries to learn from. The template is made.”

eDiscovery and Privacy Implications. Privacy laws are an important aspect of social media use that impact discoverability. Discovery and privacy represent layers of the Rubik’s cube in the ever-changing and complex social media environment. No longer are social media cases only personal injury suits or HR incidents, although those are plentiful. For example, in Largent v. Reed the court ruled that information posted by a party on their personal Facebook page was discoverable and ordered the plaintiff to provide user name and password to enable the production of the information. In granting the motion to compel the Defendant’s login credentials, Judge Walsh acknowledged that Facebook has privacy settings, and that users must take “affirmative steps” to keep their information private. However, his ruling determined that no social media privacy privilege exists: “No court has recognized such a privilege, and neither will we.” He further reiterated his ruling by adding, “[o]nly the uninitiated or foolish could believe that Facebook is an online lockbox of secrets.”

Then there are the new cases emerging over social media account ownership which affect privacy and discoverability. In the recently filed Phonedog v. Kravitz, 11-03474 (N.D. Cal.; Nov. 8, 2011), the lines between the “professional” versus the “private” user are becoming increasingly blurred. This case also raises questions about proprietary client lists, valuations on followers, and trade secrets  – all of which are further complicated when there is no social media policy in place. The financial services industry has been successful in implementing effective social media policies along with technology to comply with agency mandates – not only because they were forced to by regulation, but because they have developed best practices that essentially incorporate social media into their document retention policies and information governance infrastructures.

Regulatory Framework. Adding another Rubik’s layer are the multitude of regulatory and compliance issues that many industries face. The most active and vocal regulators for guidance in the US on social media have been FINRA, the SEC and the FTC. FINRA initiated guidance to the financial services industry, and earlier this month the SEC issued their alert. The SEC’s exam alert to registered investment advisers issued on January 4, 2012 was not meant to be a comprehensive summary for compliance related to the use of social media. Instead, it lays out staff observations of three major categories: third party content, record keeping and compliance – expounding on FINRA’s notice.

Last year the FTC issued an extremely well done Preliminary FTC Staff Report on Protecting Consumer Privacy in an Era of Rapid Change: A Proposed Framework for Businesses and Policymakers.  Three main components are central to the report. The first is a call for all companies to build privacy and security mechanisms into new products – considering the possible negative ramifications at the outset, avoiding social media and privacy issues as an afterthought. The FTC has cleverly coined the notion, “Privacy by Design.” Second, “Just-In-Time” is a concept about notice and encourages companies to communicate with the public in a simple way that prompts them to make informed decisions about their data in terms that are clear and that require an affirmative action (i.e., checking a box). Finally, the FTC calls for greater transparency around data collection, use and retention. The FTC asserts that consumers have a right to know what kind of data companies collect, and should have access to the sensitivity and intended use of that data. The FTC’s report is intended to inform policymakers, including Congress, as they legislate on privacy – and to motivate companies to self-regulate and develop best practices. 

David Shonka, Principal Deputy General Counsel at the FTC in Washington, D.C., warns, “There is a real tension between the situations where a company needs to collect data about a transaction versus the liabilities associated with keeping unneeded data due to privacy concerns. Generally, archiving everything is a mistake.” Shonka arguably reinforces the case for instituting an intelligent archive, whether a company is regulated or not;  an archive that is selective about what it ingests based on content, and that has an appropriate deletion cycle applied to defined data types/content according to a policy. This will ensure expiry of private consumer information in a timely manner, but retains the benefits of retrieval for a defined period if necessary.

The Non-Regulated Use Case­. When will comprehensive social media policies, retention and monitoring become more prevalent in the non-regulated sectors? In the case of FINRA and the SEC, regulations were issued to the financial industry. In the case of the FTC, guidance had been given to companies regarding how to avoid false advertisement and protect consumer privacy. The two are not dissimilar in effect. Both require a social media policy, monitoring, auditing, technology, and training. While there is no clear mandate to archive social media if you are in a non-regulated industry, this can’t be too far away. This is evidenced by companies that have already implemented social media monitoring systems for reasons like brand promotion/protection, or healthcare companies that deal with highly sensitive information. If social media is replacing email, and social media is essentially another form of electronic evidence, why would social media not be part of the integral document retention/expiry procedures within an organization?

Content-based monitoring and archiving is possible with technology available today, as the financial sector has demonstrated. Debbi Corej, who is a compliance expert for the financial sector and has successfully implemented an intensive social media program, says it perfectly: “How do you get to yes? Yes you can use social media, but in a compliant way.” The answer can be found at LegalTech New York – January 30 @ 2:00pm.

I’ve been doing this long enough that predictions about the future (for good or ill) seem to be a useful convention to talk about emerging trends in the electronic discovery space.  My recent post about the top 5 trends for the upcoming year received way more attention than I would’ve imagined.  So, in attempt to replicate that and do my best Carnac impersonation, here are a few predictions about ALM’s 2011 Legaltech New York:

• “All in one” e-discovery will be the vendor message de jure, even if the beginning phase is first pass review and the last phase is granular review.  The mantra “don’t let the truth get in the way of a good story” (not surprisingly) holds more water at LTNY than in most places.
• For the first time, it will actually take longer to get to your room in the Hilton (never mind the annoying ads) than it would at another hotel across the street.
• At least one person will have an Inception moment and think that they’re having a dream (or perhaps a dream within a dream – if they’re really sedated) about being on the Legaltech show floor, while they’re really still in their hotel room, waiting for their Starbucks Trenta (a whopping 30 ounces) to kick in.
• The b-discovery group will hold a massive all chapter party without any official affiliation with the LTNY conference, showing again that the off-the-floor meetings, parties, sessions, interviews and the like are continuing to eclipse the officially sanctioned events.  As another prime example, check out these stellar Supersessions.
• Members of the European Cockpit Association (yes there really is one) will accidentally show up for day one of the conference, after getting a pamphlet at LaGuardia airport advertising free wine and cheese with a discussion of ECA.
• DTI will announce that it’s stepping up and acquiring FTI (since the acronyms are pretty similar) after a torrent of other purchases in the space, including Unlimited Discovery and Daticon/EED.
• Given his prominence in NYC, I think it’s likely that Donald Trump makes an appearance (probably to look for a lit support professional as an all new Apprentice: the e-discovery edition).

If you have been to LegalTech before, you know that – by the end of the day – you could use a nice stiff drink to recover. So why not do it with some company? We (Aaref, Dean, Kurt, and Will) will be at the Bridges Bar at the Hilton at 7pm, and we are happy to buy drinks for the first 50 E-Discovery 2.0 readers who join us (we will have a big E-Discovery 2.0 sign on our table, so feel free to just stop by and introduce yourself). It’s a great way to meet us, suggest ideas for what we should cover on the blog, and get warmed up before going to the B-Discovery event later that evening.

Come early though. We mentioned the idea to Brandon, who runs the E-Discovery 2.0 group on LinkedIn, and he invited his group to arrive shortly after, so the seats (and the drinks!) may go fast.

It’s a new year in legal technology, and the visions of sugarplums dancing in our heads quickly give way to visions of LegalTech 2009. After all, who can help but dream about another opportunity to brave the icy streets of New York City in February? Fond memories of attempting to wolf down a stale croissant and cold cup of coffee while jostling for an uptown cab outside the New York Hilton can set even the most jaded litigation support manager’s heart aflutter.

The weather and the Manhattan traffic may remain the same, but, as we’re all painfully aware, this year’s show takes place in the context of a dramatic global recession that is having a huge impact on the legal industry’s use of technology, particularly electronic discovery. It’s in challenging times that innovation often thrives the most, so this year’s LegalTech may actually yield a surprising number of new ideas and technologies.

Innovation aside, this year’s LegalTech will likely have a bit of a different “look and feel” from last year:

Some things, of course, never change. Fortunately, the team at Incisive Media has been working overtime to put together a stellar lineup of practitioners, legal experts, and judges to provide insight into some of the key issues of legal technology. While electronic discovery is top-of-mind for many, there’s a lot of more than that on tap. Key sessions include:

• Patrick Oot, Director of Electronic Discovery and senior litigation Counsel at Verizon will lead the first-ever LegalTech Town Hall meeting, to be featured on YouTube. The Town Hall will be an interactive discussion where participants will be able to submit questions in real-time to a panel of experts for immediate feedback and insight on the topics that are of top concern.
• John W. Woods, a partner at Hunton and Williams, will deliver a keynote on “How eDiscovery is Changing the Relationship Between Law Firms and their Corporate Clients”. Clearly there’s a sea change going on here, which seems to be being accelerating by the economy, and it will be very interesting to hear what John has to say.
• Finally, LegalTech would not be complete without a contribution from a leading light of the bench. And this year, none other than United States Magistrate Judge John M. Facciola of Peskoff v. Faber and United States v. O’Keefe will be presiding. Ralph Losey said he’s “just about my favorite judge of all time” and it’s sure to be a fantastic session to get up to speed on the cutting edge of electronic discovery law.

The fantastic speaker lineup, of course, just scratches the surface. LegalTech is also an incredible networking opportunity to meet with fellow practitioners and vendors. However, it can be a little overwhelming, particularly to first-time attendees. So, we thought we’d close with a video that Monica Bay put together last year that provides a quick “how-to” guide for making the most of your time at LegalTech.

As a final note, I’ll be attending the E-Discovery 2.0 LinkedIn Happy Hour before B-Discovery’s LegalTech event.  It’s at the Hilton’s Bridges Bar from 8:00 – 9:00pm on Monday February 2^nd.  Come by and say hello.  If you are not a member of the E-Discovery 2.0 LinkedIn group, sign up here.  See you at the show!