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Risks & Responsibilities: The Ethics of eDiscovery

Risk and Responsibilities: The Ethics of eDiscovery

Do you understand your legal duty in preserving information? Are you investigating whether social media posts are implicated in your matters? Join us for our webinar about the ethics of eDiscovery and get the insight and guidance you need to implement and manage your eDiscovery process defensibly – and ethically.

In the Risks & Responsibilities: The Ethics of eDiscovery webinar, you will learn about:

  • What the Federal Rules of Civil Procedure and ABA Model Rules have to say about eDiscovery, including legal holds and Meet and Confers
  • A brief history of eDiscovery and why we’re doing some of the things we do today
  • Steps to ensure successful legal holds
  • Cooperation with the opposing party
  • Case law regarding eDiscovery and what actions or inactions have resulted in sanctions
  • New ESI resources to consider, such as social media and text messages
  • GDPR, CCPA, and other privacy rules
  • Using advanced analytics and machine learning platforms
  • …and more

Webinar Speakers

Watch the Webinar

Webinar Q&A Session

As a lawyer, can I tell my client to make their social media posts private?

The short answer is: Yes, you can tell your client to make their account information private.

What you cannot do is advise your client to delete or change existing information. In fact, lawyers have been sanctioned and their parties have lost entire suits because the lawyer told the client to “clean up” their Facebook page.

Whether social media posts are public or private does not impact their discoverability. Private posts remain discoverable. Advising a client to flip the switch from public to private may be in the best interest of the client from a public perspective, but the client should be clearly instructed through a litigation hold that all information related to the matter still must be preserved and is discoverable regardless.

The bar exam has been postponed; what are the rules about supervising junior attorneys or vendor non-attorneys?

ABA Model Rules 5.1 states that partners, managers and supervisory attorneys have an ethical obligation to monitor junior attorneys and other legal staff. We talk about this rule specifically in our Ethics of Legal Holds webinar.

Opposing counsel keeps sending productions as PDF, costing us time, money and missing metadata; is this ethical?

No, it is not ethical, whether due to incompetence or bad intent. ABA Rule 1.1 covers general competence, including competence in eDiscovery matters. ABA Model Rule 3.4 requires attorneys to act fairly, professionally and diligently with respect to discovery, and obstructive tactics in eDiscovery would clearly violate that standard.

If you can prove intent and blatant gamesmanship, sanctions will likely follow. Whether it’s discovery or any other part of litigation, courts don’t like games—and this would clearly fall into that category.

The Federal Rules (and similar state provisions) also clearly require that data must be produced in a usable format. What’s more, the expectations on production formats are pretty settled almost universally, which include routine metadata and searchable text be provided.

The best practice is to address document production formats in an early “meet and confer” conference and agree upon a written ESI Production Protocol. Without that, opposing counsel can produce in the format of their choosing, within industry-standard practices, and burden arguments are harder to make after the fact.

Am I ethically obligated to disclose that I used TAR to review and produce ESI?

Generally, no. That is, unless the parties have specifically agreed to do so (at least that’s the current expectation in most courts).

If the parties addressed TAR in their ESI protocol, then of course, whatever is in that agreement governs that particular matter. If the parties did not discuss TAR ahead of time, then as long as you’re getting the documents reviewed and produced in an appropriate manner and the production is complete from a topical perspective (responding to the various requests for production of data and so forth), then there’s no compulsory ethical obligation to disclose how that was completed.

That said, FRCP Rule 26(g) does require the attorney of record to certify to the completeness of discovery responses. So, to present that attestation, counsel must be fully aware of the methods employed, and thus, should be prepared to address that topic if asked.

When TAR first came out there were many questions back and forth about how to do it and how to disclose it. But now, a lot of courts have embraced the old school approach: forget about the technology, look at what actually happened, and if the receiving party can prove that documents were missed or things were missed, then start examining how things were selected and how they were produced. But without that proof, courts are more and more reluctant to dive into the issue.

Can intent to deprive be shown circumstantially?

The short answer is yes, particularly if you have documents in your client’s possession that should have been produced by your opposing party but then were not. You may have a one-off outbound email to your client, but all the background internal discussions from the sender prior to or subsequent to sending of that particular document are missing, which gives pause to ask why those internal communications were not produced. There is a very current order in the WERIDE CORP., et al., v KUN HUANG, et al in Case No. 5:18-cv-07233-EJD issued on April 16, 2020 that issued “terminating sanctions” because of the “intent to deprive”.

Why do I need a clawback agreement?

Clawback agreements have the effect of “codifying” one’s ethical obligation to inform opposing counsel when an inadvertent disclosure is discovered. Such agreements clearly oblige opposing counsel to return or destroy the inadvertent disclosure, often laying out a specific process that must be followed. Courts will generally act more quickly in the event of non-compliance with such written agreements and follow the process to which the parties consented, as opposed to a longer consideration of common law and procedural practices where the outcome often is far from certain.

With the surge of remote workers across the globe, what legal road barriers can we expect for legal holds and data preservation on international virtual cloud servers—and what sayeth GDPR?

With respect to legal holds and data preservation, the biggest issue a corporation will face with remote workers is that, to the extent, it wasn’t prepared for this and left employees to their own devices to figure out how to access corporate data, there now may be all sorts of corporate data on personal computers, tablets, etc.— and some of it may never get saved on or moved to the corporate’s networks. There’s no doubt it will become common to ask custodians or 30(b)(6) witnesses: “What did you do during the COVID-19 lockdown? How did you access, save and share corporate information?”

It’s a complicated issue, so you should be considering now how those questions will be answered and even look to take corrective steps when and as you can to “repatriate” that data to corporate systems as and when feasible.

With respect to cloud-based servers and solutions, the terms of service and data preservation and collection capabilities of those sources must be fully understood (if that hasn’t already been evaluated – ideally you would have already considered such concerns prior to the adoption of the solution, but if not, act quickly to do so once preservation obligations are triggered). Typically, cloud data can be collected using special tools, special admin accounts and/or the custodian’s own credentials.

With respect to international data and applicable data privacy laws, you must determine the applicable laws of the jurisdiction in which the data resides. We highly recommend retaining an attorney with expertise in the given jurisdictions’ privacy laws. Some jurisdictions, like the EU, have already made some exceptions based on the COVID-19 Pandemic too, like allowing for certain medical data to be moved out of the EU for purposes of fighting or curing the disease.

Webinar Transcript

Mike: Hello everyone, and welcome to the webinar channel of the Association of Certified eDiscovery Specialists. My name is Mike Quartararo, and I am the president of ACEDS. Today we are joined by BIA, our partner for our webinar entitled “Ethics in eDiscovery.” BIA is a pioneer in forensics in eDiscovery to provide solutions across the eDiscovery spectrum. And one of the really noteworthy things about BIA is their entire project management team is CED certified. And so we’re proud of that, and I know they are too. So kudos to them for that. So let’s get into it. Before we get started, however, let me just say that we love questions. We’re always happy to take your questions, and you could submit your questions at the bottom of the screen in the widget. Also, if you’d like a copy of the slide deck from today, you can download that from the resource widget, also at the bottom of your screen. 

Without further delay, let me introduce our presenters today. Brian Schrader is the co-founder of BIA. He’s got 25 years plus experience in technology and law. And he is a pioneer of computer forensics. I’ve known Brian for many many years. And we’re also joined today by Barry Schwartz. Barry oversees BIA’s advisory division. He’s got 35 plus years of legal technology consulting, and he specializes in electronic discovery. Alright, without further delay, let me handoff to Brian. Take it away, Brian. 

Brian: Thank you very much, Mike, and thank you, everybody, for joining us today. We’ve got quite a large group attending so; hopefully, we’ll get some interesting questions. You can submit them online. We’ll be answering them towards the end. We’ll also I think we’ll be putting up a blog post about it as well to the extent we get some questions at the end. 

So today’s presentation is kind of very at a high level across the entire EDRM spectrum. So from the very first kind of triggering event, through legal holds and collecting data, identifying, and even how you review that information and produce it. I’m gonna touch on each one of those things as we go through and show how ethics plays into each one of those steps across the board. But what it all comes down to really is this model rule that has been adopted by a number of states. And really this is probably the most cited rule when you see courts talk about ethics in the contents of eDiscovery. And it’s this idea that lawyers need to be competent or need to competently represent their clients. And it requires the right not only legal knowledge and skill but making sure that you understand all of the issues. And when it comes to eDiscovery that includes the technology. And as you can see here, the state of California, there’s a specific rule that’s been cited an awful lot that the California Bar came out with. Depending on factual circumstances, a lack of technological knowledge in handling eDiscovery may render an attorney ethically incompetent to handle certain litigation matters involving eDiscovery, absent curative assistance. And there have been quite a number of individual states that have come out with similar rules and requirements saying that the extent you practice in an area that involves eDiscovery, you have to be competent in representing your clients, you have to be competent in that technology, or at least understand it. 

And there’s kind of three ways that the authorities have put out to meet this. And of course, the first of that is having the sufficient skill and knowledge and obtaining the right learning to fully understand what the technology implications are to the particular case you’re working with. Again, whether that involves identifying data or how you handle that data or even how you issue legal holds. So the first thing, of course, is just being able to know it yourself and handle that. The second is to associate with – just like if you go into a case, you’re going to hire an expert to testify on damages, or you may hire experts to testify on any kind of technical aspect of a case. You know, just the same here, you can associate yourself with a consultant or technical person who has that level of competence you could oversee. You know and trust and vetted, and you can rely on that. And the third, of course, which is the one nobody wants to use, is you can decline to represent that client. So those are kind of the three things that the various court rulings have put out. You either know it yourself, you find somebody who can help you understand it and is competent, and you trust, or you can just not take the work. Obviously, the third one is not something any of us want to do, but you’ll see as we go through this that the ABA rules kind of go through and touch a lot. And one of the things actually goes beyond that. Louisiana has taken the same thing and applied it to how lawyers use social media. So, Barry, you’ve dealt a lot with this. Why don’t you tell us a little bit about how that plays into that particular portion? 

Barry: Absolutely, thanks, Brian. Welcome, everyone as well. With most states, as Brian mentioned, have adopted a version of the ABA rule 1.1. And they all have a little bit different flavor in some regards. And as Brian pointed out, Louisiana has addressed the issues of social media in a couple of ways. Obviously, the first one is regarding self-promotion, and how an attorney might respond on social media. And they have to be careful to not be rendering legal advice in social media. But the other side of it is, as the second bullet point says, I will stay informed about the changes in the law, which means that attorneys need to be aware of technological changes as they happen. And in this day and age, there are rapid evolutions of social media applications, not just the regular Facebook accounts but the ephemeral apps like WhatsApp, and how those are addressed, how those are collected, and how those are reviewed. Slack and Teams are two of the popular chat apps that are used in enterprise situations primarily, and they each have their unique characteristics. And the attorneys need to be aware of how those function, how those need to be collected, and how those can be reviewed. So I think we can move onto the next slide here. 

Just a couple of tidbits of history with respect to eDiscovery. You know I was doing a little research here, I was kind of surprised that back in 280BC that Great Library of Alexandria started tagging their scrolls to identify author, title, and subject – which sounds awfully familiar today because we need that information when we’re doing eDiscovery. And it’s particularly important when we’re scanning hard copy documents because at least those three points are the minimum metadata plus the title, which are critical to know when doing eDiscovery review. And then, further on, MIT first references the need to have a language to track metadata. They call it the metalanguage. And that was back in 1967. So what’s relevant is eDiscovery today has the need for awareness of what the various technological aspects are to be able to capture that metadata. And you need to also know what that significance is in your various cases. So I’ll turn this back to Brian. 

Brian: Yeah. So it’s interesting. I mean you know one of the things I like about that one slide, it’s just that it’s kind of an interesting tangent. The thing I like about it, by the way, is just the fact that it shows that these issues aren’t new. Metadata isn’t new. Technology isn’t new. One of the things we always tell our clients, and I’ve had a lot of success when we’re testifying in front of courts, is the technology may be new, storage may be new, but the actual basic rules of litigation, the rules of discovery. You know way back in the day I did testify about getting to data that was archived in systems that were very difficult. And one of the cases we relied on was a case from the 1970s that talked about how the company was arguing it was too difficult to get their paper documents that they had stored in a warehouse in South America somewhere. And we use that to show that look, the same basic idea where the court said you’re the one who decided to put your data there, we’re going to expect you to go get it, we’re going to believe that when you decided to put your paper documents in a warehouse in Brazil, I think it was, you’re accepting that is going to be a difficult thing for you to get, and that was a risk you took. And we use the same thing to say about the kind of archive systems. When you chose those archive systems, it was the same thing. So the point being here is that when you look at some of these issues, don’t let the technology get in your way. You need to be able to understand the technology, but a lot of times, the most successful to handle a lot of it is to figure out how you can relate to non-technology people. Whether it’s jury, or judge, or magistrate, or an arbitrator, explain these things in ways that don’t necessarily focus on the technology that much. And I think showing the metadata goes back to 2000+ years. It shows that none of this stuff is new. And in fact, even technology assisted review uses, at its core, a lot of it uses mathematical algorithms that go back thousands or hundreds of years as well. So it’s just an interesting thing. Don’t let that technology scare you. And I think to the extent you can bring in an expert to help you understand, force them to help you understand that technology in the context of not letting the technology stand in your way. So anyway, so the eDiscovery process. 

We’re going to look at each one of these steps and go through this as we go through the next couple of slides. Everything like I said from the triggering events, legal holds, custodian questionnaires, data identification, meet and confers, the insight protocols, how you call data, document review, privilege review, and even document production. Every single one of these steps that pretty much goes across the whole EDRM has an ethical kind of component to it. So we’ll be talking about each one of these. The first, of course, is triggering events. And Barry, you’ve talked a lot about this. And just as a heads up to everybody, when you talk about triggering events and legal holds, there’s so much complexity to that when you really dig into some of the details on that and how to do it right and make sure you’re doing it right. We’ve actually done a webinar, I believe, at ACEDS before. We also have it on our website if you want to dig into an hour-long webinar that talks just about legal holds and triggering events. We made all of our resources on our website free, so you can go there and find that. It’s actually called the “Risk and Responsibilities of Legal Hold.” So we’re going to cover it now, and some of the highlights of it. But if it’s something you’re really interested in, there’s a whole other hour-long webinar just on that topic alone. Barry, you want to talk about triggering events here?

Barry: And I should say by the way on that topic, the supporting materials pushing a thousand pages. So it’s a well-researched and developed topic. With respect to triggering events, common law says you need to instruct your clients on the identification of triggering events. And we’ve got four cases listed here below. Kronisch, McIntosh, Silvestri, and the Alabama Aircraft case. And each one of those four cases identifies when the triggering event might happen. In the Kronisch case, in particular, when the litigation is filed, there is an obligation to preserve data. And in this case, the obligation to preserve evidence arises when the party has noticed that the evidence is relevant to the litigation, and most commonly when the suit has already been filed. And that’s a quote directly from the decision. In the McIntosh case, when there’s a summons issue that pretty much tips both sides off that there’s an obligation to preserve. In the Silvestri case, the plaintiff was contemplating hiring litigation experts. And again, if they’re thinking about it, then they probably ought to at least be preserving on their side for sure. In the Alabama Aircraft case, the duty to preserve relevant evidence must be viewed from the perspective of the party that controlled the evidence. And it is triggered not only when litigation is pending but also when it’s reasonably foreseeable to that party. And perhaps the poster child for a case, which isn’t mentioned on the slide, is the Apple versus Samsung series of litigation that just concluded last year where both sides were found to have been lacking in doing their duty to preserve. Apple, in the first instance, had notified Samsung that they were thinking about filing litigation for patent infringement. And when they were thinking about it, they had an early meeting with Samsung, and Apple failed to do their preservation. Likewise, Samsung also failed to preserve their information in anticipation of litigation. So the court found that both sides were faulty, and the case moved on, realizing that both sides had that obligation to preserve. 

And so we need to ask what triggers a legal hold? And if you’re in doubt, it’s always safe to issue that hold. And there is no specific federal rule on it, but the various rules regarding not depriving your opponent of information and so forth tangentially addresses the issues. So the types of triggering events that exist are product compliant. And it’s kind of obvious. You have a product failure, or you’ve had a product failure, and you’re no notice that those things have happened. And if it’s beyond just a simple breakdown of the product, but potential injury of some sort could be the triggering event. Harassment complaints and other HR issues lend themselves to prompt preservation of data, not only of the typical email events, but other devices – cell phones, text messaging, and so forth may today be implicated in having a triggering event that causes you to need to preserve your data and issue a hold. And the same as I mentioned in the Samsung and Apple case, IP infringement, obviously accidents and claim letters, give rise to the probable need to issue a legal hold, as do regulatory investigations receiving a CID tells you that you’d better preserve the data related to that CID. 

Brian: And Barry, one of the things we always say is that if your client comes to you and asks you, hey, do you think I should issue a legal hold? Then the answer is almost always yes. Like you said when in doubt, issue a legal hold. And we say the same to our clients. We have corporate clients who we sell legal hold software to. And one of the first questions when we’re walking them through the whole setup, and how to use it, and training them, they ask us about what kind of triggering things should we look for? And our answer always is anytime you hear of a client complaint; obviously, you get litigation. Somebody comes to you and says we’re going to sue you or sends you a letter or whatever, that’s obvious and easy. The more kind of harder things to do is to figure out how to make sure things get bubbled up. So it’s not just about training the legal department, it’s about, and this is something that as attorneys and consulting your corporate clients and giving them education on this perspective, right. Saying you know hey if you’re in a large corporation especially where you’ve got a lot of dispersed employees, you need to train your HR people, you need to train your managers, you need to train your product people, so they understand hey if you hear this kind of thing, make sure you bubble it up to legal or make sure you get with outside counsel or some other kind of centralized person. So it’s not just about understanding the process. There is an importance to make sure your client understands it. And courts have even faulted attorneys, we’ll talk about this in a little bit in a couple of more slides. But courts have faulted attorneys for not providing that advice to their clients. And they’re citing the ethical ABA model rules and the state versions of it, depending on the state as a way to say look, this is your responsibility. It’s a legal obligation, and you as counsel, if you didn’t make sure your client was educated on this or took the proper steps once they knew the trigger hold, and you didn’t make sure that they sent out a legal hold and did it correctly, they’re not only going to hold the client and the party themselves responsible for potential foliation that comes out of that, but we’ve even seen courts starting to sanction attorneys. Like I said, we’ll cover a couple of those things, couple of those decisions here in a sec. But you know once you have that triggering event happen, the next step is to actually then send a legal hold notice. 

I think everybody knows this but we just kind of put it out there. What exactly is a legal hold? It is a process by which the organization notifies potential custodians. Not just known custodians, but even potential custodians. You preserve information in electronic, paper, or other forms, in anticipation of litigation. And that could be done via email, it can be done in memos, there’s different ways it can get done. And we go into a lot of detail on that in that other detailed webinar. But the important thing is that it happens and that it’s overseen by a counsel. You can’t just tell your client, oh issue a legal hold. You need to go in, understand what they’re doing, understand how they’re doing it, and be part of that process. 

And one of the questions we often get is why such a focus on legal holds? It seems like a relatively small part. Judge Scheindlin’s two decisions in the, I’ll call it Zubulake, have been in discovery for 25 years. And one of these days, I’ll make sure I pronounce it right because I still hear people call it Zubulakey. But the Zubulake case started where she was one of the first big eDiscovery. Anybody who has been in the industry a long time knows these cases like the back of their hand because they kind of really set the bar early on in eDiscovery talking about identifying data, preserving data, taking steps to make sure you’ve suspended the destruction process and all sorts of other things. And that goes through the entire process as you’ll see. But Zubulake really kind of focused in more than anybody else did on how litigation holds affects how litigation holds effect eDiscovery and electronic data. Then you know several years later, what really touched it off, was her pension committee decision where she came out and said it’s black letter law, it’s sanctionable conduct if you don’t issue a legal hold, you’re going to have sanctions, you’re going to have problems. Now the Second Circuit came back and rejected that basically saying well what about the one person LLC or certain circumstances, you couldn’t make it just a clear black letter. But it sent ripple out. And people started again paying very much attention to legal holds to the extent today like I said, courts have started holding attorneys personally responsible for it as well. 

And not only when it comes to this kind of stuff are we talking about the model rule. But also the Federal civil procedures has some of this kind of ethical responsibility tied into it as well. Barry, you want to talk about the Federal Rules 36E? 

Barry: Sure. As we know, rule 36E was amended rather significantly in 2017 like 2016. And before it said well if by operation of a system you didn’t preserve data, that was probably okay. But the rule is now more focused on the fact that if you can’t locate that information within a custodian for whatever reason, but you can find it elsewhere, that’s not a free pass, but it is a pass to allow you to produce data that may otherwise not be accessible. And the key point is whether counsel, the client, had the intent to deprive another party of that information. And we have a case here, the Snider versus Danfoss case, and it stepped through the notion of intent to deprive, and whether or not the party, in this case, did indeed intend to deprive the other party of the data. And in this case, Danfoss had a policy to delete emails 90 days after an employee left employment, and did so. And six months after a particular employee departed, a litigation was filed, and of course, they didn’t have the email for the specific custodian because it had been deleted. However, the defendant offered to and did produce emails relevant to that particular departed employee that were mined from other custodians, other employees within the organization. And the plaintiff said well, you didn’t give us the information from that particular custodian, so we’re filing for sanctions. And the court determined that there wasn’t any attempt to deprive, and hence there were not sanctions. Though the judge, in that case, did say well the examples that you used in the in-camera session discussing the fact that you didn’t intend to deprive can’t be used in a summary judgment, so there was a slight limitation there. But regardless the notion is, and we see this in cases that we deal with with our clients today where the custodian is gone, there’s been a loss of data, there’s been for whatever reason technological issues or what have you, but the information was able to be gleaned from other places in the organization. Whether it was a file share or other custodians that goes to address the issue of not intending to deprive the other party, and conversely, if somebody did, then sanctions will follow. 

And we have several cases here regarding the risks of not issuing a legal hold and then targeting the counsel for failure to do what they should have done. In the first case, the judge ordered the law firm to face malpractice claims for the failure to advise the client to issue a litigation hold. Each of these first three cases has a common thing that the counsel has a duty to advise their clients. And not only that to advise the clients, but to ensure that they properly supervise and monitor the holds because it’s not just one thing to issue to the hold. Once the hold is issued, there are ongoing responsibilities and obligations of those custodians to maintain records and documents as they existed, but also as they’re being created along the way regarding a particular claim or matter. And so each of these three cases, the Industrial Quick Search one, the Palmeroni case, and the Suarez case, are all very important. In the Palmeroni case, the court specifically faulted the outside counsel for not properly overseeing the discovery effort and the legal hold. And the reason for that was outside counsel had relied upon, the corporation had relied upon, a non-attorney to manage this. And that non-attorney did not have the forethought and the gravitas to follow up and supervise the hold. In the Suarez case, this is a situation where the US attorney was faulted for not issuing a litigation hold to the FBI until seven months after the case was underway. And then lastly –

Brian: I think that would be interesting, Barry. Just because it shows how serious courts are. If the US attorney’s office has to tell the FBI to retain data, or they’re subject to a litigation hold. You’d almost assume that’s a given. But I just think that’s a really interesting thing to show how seriously courts have taken it. And the Hayleysville case is really interesting. It’s kind of the opposite. But I’ll let you talk about that one. 

Barry: Yeah. In Harleysville, this is a situation where the plaintiff had inadvertently placed privileged documents on an unsecured server. And opposing counsel for the defendant said well; oh, I see that. And not only did he see it, but he shared that information with other co-counsels in the matter. So that goes to the ethical responsibility that if you see information that should not have been released out into the wild, you have an obligation to let your opposing counsel know that that happened. And then you’re also precluded from using that information in support of your side of the matter. And as a result, obviously, counsel was sanctioned as there was that ethical duty to play fair, inform counsel of the issue, and not use what had been seen.

Brian: And so the next kind of step we have here, the next step in the process of course once you’ve issued those legal holds is then identifying and collecting the actual information that is subject to those legal holds. And so we talked about legal data preservation, collection, kind of bridges the gap between both of those steps. And so of course obviously the thing we talked about is that first step – notifying people of the need to hold. That’s the whole legal data side. But then also going and making sure that that data is actually being maintained. Part of that is like Barry mentioned before, there’s all these issues of automatic deletions, and older data being purged out of systems. It’s important that you look when you first get involved in a case to talk to the client, talk to IT, bring in experts to help you do this. Again, if you’re not comfortable doing it yourself to find out what kind of policies they have like that, do they have an email deletion policy that they need to suspend? A lot of legal hold systems that corporations have like Office 365, for example, which is very prevalent in corporate America today, you can put people on legal hold inside that system. And actually, a lot of legal hold software will integrate with Office 365 as well, so when you issue a legal hold, it will automatically put people on legal hold with that Office 365. And what that does inside of Office 365 is make sure that any kind of deletion policies you have to get suspended for those individuals, as well as making sure that anything they delete intentionally or unintentionally doesn’t actually go anywhere. It goes into what used to be called a legal dumpster. Essentially, the individual might not see it, but you can still as a corporate client gets in – and the corporate owner of that profile – get in and search for data and still discover it because it’s on legal hold. It’s important that you talk to the corporate corporation, but specifically IT. Don’t just talk to the CFO, for example. To use the example of that other case, get to the people who really know and run these systems, and find out what kind of automated deletions do they have? What kind of data purging do they have? Then figure out whether or not that needs to get stopped. Obviously, if you’re talking about a product liability case and they’ve got some deletion policy that has nothing to do with it in some other system, then you know it doesn’t necessarily mean they have to stop everything. But you do need to figure out what’s there and make sure you spend that. 

And part of that goes with this kind of third step here, system and data identification. The only way you can be sure that you’re preserving everything is that you spend time as early as you can to figure out what all the systems are. And we’re not talking about just email; email is easy. There’s a lot more areas to consider. There’s a case that we cite in the bigger legal hold presentation, the Tellermate case I think it’s called, where counsel was faulted because they claimed oh hey all this information, it was a commissions and sales performance wrongful termination case I think of a salesperson, and that salesperson says hey all my history is in Salesforce. And the attorney came back and said well that’s Salesforce, we can’t control that. And the opposing counsel came back and said, well, read your contract. Your contract with Salesforce says that you do control that information; it is your information. The corporate client at least had complete control over it. And because the attorney didn’t take any steps and the corporate client didn’t’ take any steps, the data that was in Salesforce got written over because of the way they used Salesforce, and they got sanctioned for doing that. So it’s important –

Barry: Brian? Let me add a point on that. And that’s the terms of service for a lot of these cloud resources, social media sites, and so forth, the terms of service govern where the data is, who owns the data, and so forth. And it’s incumbent upon counsel when they’re involved with those types of platforms to know what the terms of service are and what the expectations are. And the Tellermate cases is what I would consider the poster child for delving into the terms of service and knowing what the obligations might be. 

Brian: Absolutely. And then, of course, the last step is once you’ve identified all that stuff and preserved it is actually gathering and collecting it, then processing and analysis and review. One of the best ways, by the way, is to involve custodians in this. And everybody is familiar with the custodian questionnaires, the classics we’ll talk about on the next slide. But I can’t stress this enough, is forget about where the dead bodies are buried, the custodians, the individual employees, they know where their data is. And it’s more important than ever because data doesn’t just live in computers and servers and email systems and things like that. It could live in everything from Slack to Teams to Salesforce to all sorts of social media accounts, whatever, depending on the nature of your case. One of the biggest, fastest-growing areas of our business today is social media collections because people are realizing that there’s an awful lot of information, not just for personal injury or med mal or whatever, but there’s an awful lot of information on social media that people just put out there into the world. We’ve seen a couple of thousand dollars’ worth of investigation on a social media and a multi-million dollar personal injury case or med mal case or you know employment labor claim. 

So you really, really, need to talk to the custodians and find out – what do they use every day? What platforms? How do they talk to their coworkers? How do they talk to their customers? Where do they store their data? Do they keep to-do lists of their own on some other application? The custodian questionnaires have never been more important. Involving those custodians have never been more important. Plus, when you do it, it’s also like a stop question. Here stop questions is kind of a technical term. The idea is you start out asking a custodian what their level of involvement is. And if you find out from that custodian questionnaire talking to the custodian that they didn’t really have any involvement, you can move them at least to kind of a secondary status, if not eliminated as a custodian all together and release them from legal hold. So you can use those to find out whether they’re even the right people to talk to. Interestingly enough, people were like well yeah, but who’s going to reply to this? Our experience has been that custodians will do the right thing, and they’ll take this stuff seriously. They get this legal notice, they know there’s a litigation, we’re all kind of immune to it from being in the legal industry, but your average employee who’s not involved in legal on a regular basis is going to take this stuff very seriously. And again, as counsel, if you see somebody who’s not, you can reach out to them and handle that on an individual basis. But really, it’s the custodians, who are one of the most important things. 

And when it comes to ethics, again, this goes to that level of basic competency. The last thing you want to do is be in front of a judge and explain why you didn’t involve custodians, why you didn’t go out and ask. They’re going to expect that you understand that you have to do that. And there’s a little quote here on the bottom right of this slide from a court where the judge said, “there needs to be a lawyer who goes out and makes sure that the collection is done properly.” In other words, you can’t just leave it. It’s your responsibility as an attorney and again gets into ethics about that. So the custodian questionnaires, one of the most important things about custodian questionnaires is – especially in this time of remote workers and people being all over the place – a good survey engine will allow you to send out a custodian questionnaire to find out where all this data exists, find out what kinds of things that will inform how you work with your client to make sure things are preserved, and make sure IT processes are suspended. But also, one of the things you can use custodian questionnaires for just as a side note is especially now; you can ask them facts. Were you in this board meeting? Were you involved in the development of this product? Were you involved in the marketing pitch on this product? Whatever information about your actual case. Don’t just think of custodian questionnaires saying – if you’re sending a custodian questionnaire and all they say are what do you use, where do you store your personal data, that kind of stuff. You’re missing an opportunity to really leverage these things to the fullest extent. They’re privileged. Custodian questionnaires are absolutely privileged, absent some massively, extraordinarily strange circumstances. They’re communications between counsel and the client, or the client’s employees. So you don’t have to worry about asking them questions that might be factual, and you might be concerned about privilege. So plus, if you use custodian questionnaires right, you can really focus in and figure out who your key custodians are so you can really get to the heart of the matter that much faster as well. So certain questionnaires not only help you meet your ethical obligations, but they can especially in this remote working world we’re all in today. They can be an excellent tool to help you still communicate and gather the facts you need to regardless of where your custodians are. 

And then some of the last things I mentioned, don’t forget to ask about social media, about texting. Do they use cloud storage? What kind of devices do they use? What kind of applications do they use? Are they using something like a Signal or one of these other communication apps on their own to discuss work? Whether it’s sanctioned or not by the company doesn’t matter. If you have an employee who’s using Signal, for example, to communicate with their fellow workers – Signal is one of those chat apps that you can actually set to delete messages pretty quickly or not at all, it’s up to you. If they’re using that, even if it’s not company-sanctioned, it still falls under the duty of identifying and preserving that information. Just because the company said hey you shouldn’t use this, if the employees did and there’s information there that may be relevant to the case, guess what, it’s still relevant. So when you issue those custodian questionnaires, or you talk to employees and do your interviews, and you’re looking at these systems, you have to think about all these broad – places, where you can store data today, are just unlimited. I mean, we even have cases where we’ve talked about collecting from somebody’s Xbox because they were using chats in Xbox to talk back and forth, thinking that nobody would find it. And so this is another place to really bring in an expert to make sure that you’re covering all your bases. Because the last thing you want to do is have to go to a court and explain why not. 

So our next topic is the meet and confers, and how the ethics kind of come into that. And Barry, you talked a lot about the meet and confer, so why don’t you talk about this topic? 

Barry: Thanks, Brian. There is an obligation under rule 26F3 that directs the parties to discuss the form or forms in which electronically stored information might be produced. And we at BIA get involved with helping our clients draft meaningful ESI protocols that govern may be the number of custodians. The locations where a custodian questionnaire is identified that data might exist so that those points need to be addressed in the ESI order so that nothing is left unturned and undiscovered that should be. And so when the parties are meeting early in the case, it’s incumbent upon counsel to discuss the methods and means of production. What is going to happen, how long it’s going to take, the form of production, the information that’s going to be disclosed in the production, the various – as we mentioned in the history slide – the various meta points, the metadata points in the data that are meaningful. It’s often important to know what the organization is that custodian maintains their email. How many email folders do they have? Where do those emails come from from their organized Outlook folder? And also, what the original file paths were for that data? That is very meaningful because it may lead to ask the question – well did you get everything from that location when you’re looking at the data that’s been produced? And so there is this obligation and it flows through from the ABA rules as well to make these meet and confer conferences very meaningful. And one of the things that should be also discussed, and it’s an ethical oversight, and as Judge Peck has discussed over the years, he considers it malpractice to not have a claw back order so that if you inadvertently produce privileged information, you have the right to request it back. And the other side has the obligation to return it or destroy it depending on how your request is put forth. 

And we’ll come back to the ESI protocol in a few minutes, but now I want to move on to discussing some of the more current technologies that we deal with when we’re talking about reviewing the documents and getting them ready for production. And that’s the advanced analytics and technology assisted review. And it used to be that you needed to have a data collection that was significantly large enough to be able to afford to use these advanced tools. Today it’s pretty much a commodity. It’s not very expensive, and it’s typically used, from BIA’s perspective, in every matter that we touch. And we recommend it to our clients because of the advantages associated with it. And advanced analytics is most often used when the collection of data is email or tech-heavy. It’s used significantly to facilitate privileged review so that you can identify similar content in other documents that you may have missed by using these tools. It’s also in that it allows your privilege log to be consistent, and the claims to be appropriately stated in the log so that contesting of the log is minimized. Further, with opposing party and third party productions, it helps facilitate your review because you can then identify documents that you’ve already seen because you had them, but you can also identify new materials, and you can also identify concepts that should have been presented by the opposing party and were not. And you may have a spoliation claim or a claim for them to go back and identify and produce additional documents. 

And further, using these advanced analytical tools allows you to increase not only your accuracy but your efficiency in getting through the documents. And so some of the tools on the right-hand side that we use are email threading, which is commonplace today so that when you’re reviewing, you’re only reviewing the most inclusive set of emails in the chain. And obviously, with email threading, if there’s a branch off where I send a document to Brian that wasn’t in the regular email chain, that particular document would also be seen. It allows for near and exact text deduplication so that you can group similar documents together, which is also clustering so that you can review much more efficiently, and have consistent coding across the groups of documents that are very near in content to each other. And we also use advanced technology assisted review methodology. I’ll talk about that in a second. And it’s also important now that we are dealing with a lot of global companies that the concept of foreign language is popping into many of our reviews today. And these tools can assist in identifying foreign language, and that is important because you may need to retain foreign language speaking reviewers to get through the documents. Brian? 

Brian: Yeah, and so there’s – not only could this stuff help make sure things like that, especially things like privileged reviews, right. Making sure that anything you mark as privileged, you can use this technology to make sure you don’t miss anything else. Or anything that gets redacted, you don’t miss anything else. I remember as a young lawyer back in the 90s when, before a lot of this stuff even was a thought in anybody’s head. Whenever we’d get a production that had something redacted, the first thing we do is look for other documents that had similar content, and a lot of times, those similar documents wouldn’t be redacted. And you could look at that as an ethical failure or an obligation failure. You’re not protecting your client, and in those circumstances, it had more to do with well somebody was reviewing this one, and somebody else was reviewing that one, and they had two different, actual two humans had different opinions. And they may both add value or validity to it. But those kinds of things and courts are starting to recognize this; they’re starting to say look you need to use this technology that’s out there to make sure these mistakes don’t happen. Before, it might have been excusable, but now there’s this technology there to make sure that it doesn’t happen. And courts are starting, yeah, I haven’t seen a court that has sanctioned an attorney specifically for not using this stuff, but I have seen courts that have gone about as close to that line as they can get. Not only is it just to ensure accuracy and completeness, and making sure you’re taking advantage of this artificial intelligence to not only protect your client but to make sure that everything that should be disclosed is being disclosed. But just as importantly, to save your client money. Courts will look at it and say, isn’t there some obligation here to use the best technology you can not only to make sure you have consistency in your obligations but also to make sure your clients aren’t wasting money. And especially when you talk about technology assisted review and some of the advanced analytics and most inclusive email threading and stuff like that, you can see if they get amounts of money. And courts have started to kind of put this thought out there that lawyers should at least be thinking about that when they’re deciding on what technology to use in some of their cases. And so those are out of the ethics side of things. 

Barry: Absolutely. And it’s important to vet your resources, and you be assured that they know what they’re doing. Many of the advanced tools, I’m not going to mention any by name here, but the more popular ones all have certification programs. And you should be confident that if you’re retaining a vendor, that the vendor has certification and quality assurance based upon the tools that they’re using. 

Brian: Yeah, that’s a very good point. One of the things we always talk about in the technology assisted review is the idea of garbage in, garbage out. A lot of your results and the quality of what you’re getting depends on the knowledge of the people you’re using. And so embedding that is very important. And again, you don’t necessarily need to know the technology to be able to talk to somebody and realize whether they know what they’re talking about or not. So kind of cause of review considerations – go ahead, Barry.  

Barry: Yeah, I’ll run through this fairly quickly. It’s important to have a well-written review protocol so that the team that’s doing the review and the team that’s managing that review team knows what the expectations are, what’s responsive, what’s not responsive, what the key issues are, and so forth. Establish your review priorities. Know which custodians need to be reviewed first, which issues need to be focused in on. Have knowledge of the review platforms. We were just saying if you have vendors that have certified managers of review team platforms. You’ll get a better result because they can fine-tune and make the review platform hum the way it needs to hum for that particular matter. And again, know what analytical tools and uses are there on the given platforms. Not every platform is equal. And make sure you have clarity regarding what the confidentiality and privilege issues are in any given matter. It goes without saying that there are nuances with privilege, depending on what your case is, and there are nuances with respect to confidentiality. In IP cases, there are many times where there are attorney’s eyes only designations for certain documents. And then make sure that there’s a way to have questions that bubble up from the review team up to counsel and to the client. And there should be a defined process that is usable, so nothing gets left unturned if there’s a question. 

And one example of technology assisted review. We’ll give you this quick example of a matter that we recently had. There were post keyword searches, 500,000 documents. We had a timeline of 30 days. And using technology assisted review, we only were required to review 65,000 of those documents. And you can see the precision-recall results are 92% recall, 85% precision. And we ended up producing 220,000 documents, and the cost advantages are significant. It was a 50% savings in cost in terms of time and efficiency.

Brian: And by the way, that also gets into some of your discussions that you may have with a judge about burden, right? We see more and more judges saying well if you use the right technology, you wouldn’t have the burden that you’re arguing about. And so that’s just – that example we gave you just to give you a real-world example of how that translates into real money. And courts are going to say, if you go to them and say we have to review 220,000 documents and it’s going to cost $375,000, the court is going to come back and say oh it would be a lot cheaper and a lot less burden if you use this if you use technology with that. So that gives you a real-world example of how that argument then plays out, and what you should be prepared to discuss if you’re trying to make a burden argument around review. You’re going to have to at least address the technology assisted review side of it as part of that burden argument. And you’re either going to need to know enough about it yourself to have that conversation or be able to bring in somebody who does. 

Barry: Yes, and moving on to some other considerations that you need to be aware of today and be ethically bound to examine. Particularly, GDPR, which is cross-border discovery. It impacts cross-border discovery in the US when we’re dealing with EU based organizations. And fortunately, unfortunately, many other countries have adopted similar laws and regulations similar to the GDPR – Israel, that is some of the far eastern countries as well have almost identical requirements. There’s a recent Supreme Court case – Intel versus Advanced Micro that set out a four-factor test for whether cross-border discovery is appropriate. And before I give those four steps, with GDPR and those types of laws, if you’re not certain, and most of us are not – what the impacts are, what the nuances of those regulations and laws contain – it’s incumbent upon you to retain local privacy counsel to who can guide you on the rules of the game when you’re in the EU or in some other country that has a similar set of requirements. With cross-border eDiscovery, back to the Intel versus Advanced Micro, the tests for whether or not that’s appropriate is producing party participant in the proceeding. What’s the nature of the foreign tribunal and the proceeding? Is the request there to circumvent foreign or US law? And is the request unduly burdensome? Many of the issues in eDiscovery go back to burden. And that’s something to be mindful of. 

And then we have other issues with respect to data that may come into play. Your personal cell phones, bring your own device to work considerations, the internet of things devices, data in the cloud, chat, instant messaging, text messaging, and as we mentioned a couple of times earlier, the ephemeral apps like WhatsApp and Signal and things of that sort. How do those all play into your discovery needs? So if you’re in doubt, it’s important to seek the appropriate technical resources so that you can cover all those bases. And you’ll identify the bring your own device issues, the internet of things, the cloud, chat message, and so forth when you’re interviewing your custodians through a well thought out custodian questionnaire and in-person interviews. 

Brian: Two last slides we’re going to cover really quick because they’re pretty self-explanatory, and we want to leave a couple of minutes here for questions at the end. But the last thing after you’ve done all this, you’ve done all your review, is production. And people say well – how does ethics get into production? And really it comes down to not only what you’re doing as an attorney to produce documents. And gone are the days largely where people are having really deep arguments about what metadata to produce and things like that. And instead, there’s kind of an expectation of what’s going to get produced. And if you don’t do that, if you don’t produce kind of standard metadata with your production, unless there’s an agreement of the parties, then courts are going to come back and say look this isn’t it. You have an expectation to produce documents in their completeness, in their entirety, including their metadata, and we’re not going to let you screw around with that. We’ve even seen some companies come close to getting some counsel getting sanctioned because they tried to game that system because they thought maybe their adversary wasn’t smart enough to figure it out. We had one case, this is a couple years ago, where somebody was like oh we want to just produce in a non-text embedded, image-only PDF. And we went back to the corporate client and said this is going to be a problem. And the attorney in that case basically took the position that look, they didn’t ask for it, the attorney, the plaintiffs, in that case, had no idea what they were doing when it came to discovery, they didn’t ask for this stuff, so we’re not going to give it to them. We’re just going to give them, not even text, or a searchable text of any kind. They just gave them clear images with nothing else. And we went to the corporate client and said look because we had worked with them on a lot of cases, we’re like look this is not what you’ve done in either one of your cases, and you’re gonna end up spending a lot more money, and you’re gonna end up going through litigation. That was an MDL, so at some point, there’s going to be another law firm that comes along who does understand it, and guess what? It’s exactly what happened. And everything had to be redone and done with the regular type of production. So there are ethical considerations that come into that as far as just being a fair and reasonable person when it comes to that. 

But one of the most important things you can do when it comes to production to make sure you don’t have any issues like that is to do a full-on protocol. It covers everything from custodian notifications and clawbacks, to if you’re going to use technology or analytics in the review – what you’re going to do, and what the parties agree to that – to what exactly is going to be in your production, to how the form and format – what’s going to be TIFF or PDF, and what’s going to be native, what metadata fields are going to be included. If you have all that stuff written down and everybody agrees to it, we’ve seen cases where parties have agreed to a protocol, and then one party comes back and says, well wait, we want all the data done natively. And the court said sorry, you have assigned a stipulated protocol that didn’t say that it specified TIFF productions, we’re going to hold you to it. So the best way to protect yourself against any of that kind of stuff, any claims of whether you’re gaming it or you’re not doing something, or worse, you didn’t know what to ask the other side for and that prejudices your own client. The best way to do that is to have one of these protocols and to bring in an expert as well if you don’t know all the details yourself. Again, bring in that expert who can give you the advice on how to make sure you’re covering all the bases. 

And the last thing is, of course, the ethics and certifying your discovery. This is something that it hasn’t got a whole lot of attention, but rule 26 says that you have an ethical obligation to make sure that you’re fulfilling the duty of disclosure in a case. You have this obligation under the federal rules to sign off and talk and verify and certify the completeness of discovery. And if you haven’t done all this along the way, you can’t do that. If you can’t do that, or if you try to do it without knowing what you didn’t do, then again, it gets into ethics. Barry, do you have any last points? Because I want to leave at least a couple of minutes for us to answer questions. We’ll go over the time if we’re able to, to answer some questions. 

Barry: No, I think we’re good here. And we should jump into the questions. 

Brian: Alright, so first question I see. Mike, I’ve got em, if you want to read them out, I can read them out, it’s up to you. 

Mike: Totally your call, Brian. 

Brian: I’ll just go through, and the little system gives it to us here. So the first question was – is there any ethical obligation to disclose to an opposing party or the court that you have used TAR to review and produce ESI? Barry, that’s probably more for you? I think the easy answer is no. But again, this is something that a lot of people will put into their protocols now. 

Mike: Barry, do you want to? 

Barry: I agree with you, Brian. The easy answer is no unless the parties have agreed to it otherwise and to call out what was done, how it was done, what tools were used, what your precision or recall might have been. And if the parties didn’t discuss ahead of time, then it’s sort of fair game to produce as appropriately. And the last slide that we just discussed is the ethical obligation to sign off on the production that it’s as complete as it can be, and that you’ve done it appropriately, and that it withheld information that shouldn’t have been withheld. And in the old days in document review, we say there is no bad document exception. And so the smoking guns do need to be produced. And so going back to the specific question, if the parties have discussed it in the ESI protocol, then that is the governing rule of that particular matter. But if not, as long as you’re getting the documents reviewed and produced in an appropriate manner, and the production is complete from a topical perspective, responding to the various requests for the production of data and so forth, then that’s how it can be. 

Brian: Yeah. When technology assisted review first came out, there was an awful lot of questions about how do you do this, and how do you disclose it. And originally, there was a lot of back and forth. I think more and more courts have just embraced back to the old school, forget about the technology, and look at this, look at what actually happened. And have said, look if you can prove as the receiving party that you think documents were missed or things weren’t, then you can dive into how things were selected and how they were produced, just like you could with any other section of it. So you might have to answer questions on how you use technology assisted review if there’s a reasonable, clear showing that data was missed by the other side. Then they’ll dive into it. But without that, courts are more reluctant to say look, whether you’re using individual attorneys, you’re using outsourced, using technology, whatever process you’re doing, your ethical obligation as the producing party is the same. Period. End of story. And so if there’s a question on that, then they’ll get in and start letting the opposing party ask questions about it. But if the other side can’t prove that there was some question, then it isn’t going to be an issue that they’ll really dive into as much as they did in the beginning. 

Another question here – what obligation does a lawyer have to advise their client regarding social media posts? For example, after an accident. Can a lawyer tell the client to make their social media post private, thereby shielding the post from public view? 

That’s a very interesting question. We’ve been doing a lot of social media stuff. I think there are some articles on this if you want to dive in on our resources page. But the short answer is, you might be surprised, yes they can tell their client to make their entire thing private. What they cannot do is advise them to delete information, or to go back and change information that might be relevant. And in fact, lawyers have gotten sanctioned, and their parties have lost the entire suit because a lawyer has said go delete, go clean up your Facebook page. It’s kind of like Arthur Anderson telling their accountants to clean up their Enron files. You cannot do that. There’s nothing wrong with making it private because it’s still there, it’s still preserved, and the producer, the requesting party, can still say produce it and it’s there. It’s not a matter of public/private view, so it may be surprising that that’s the case. But the answer is, as long as it doesn’t destroy any of the data, then whether it’s public or private doesn’t matter, you still put it out in the world. And by the way, just because somebody marks something as private on social media doesn’t mean it’s not discoverable because it’s hidden somehow. 

Barry: Case law point. 

Brian: Yeah, case law point. I think we’ve got some articles on that as well—next question. There’s a lot of talk about supervising junior attorneys today because the bar exam is being postponed. Very interesting. What are a lawyer’s supervisory responsibilities when it comes to overseeing a new lawyer work or engaging a service provider who may not be a lawyer? 

Barry: I can address that. 

Brian: Yeah, this is a topic we address specifically in that legal hold thing about representing and responsibilities of junior and senior lawyers under the ethical rules.

Barry: There’s an ABA rule specifically on point that the supervising attorney or the senior attorney has the ethical obligation to look over the shoulder of their junior team members. 

Brian: And that goes along the entire process. One more, I think we’ve got here. Our law firm is in receipt of numerous productions from opposing counsel. They’re always in PDF format, and it causes us tons of issues and cost to get them into Relativity, and we’re always missing metadata. Is this ethical on their part? What can we do? We feel like they’re doing this on purpose. 

Like I said before, now again, this will come down to the court or the arbitrator or the mediator or whatever party you’re in front of. More and more judges, if you went to the judge and said, or even to the judge’s clerk or magistrate and said look, this is what is happening, it’s completely unusable. The rules are pretty clear; the doc data has to be produced in a usable format. You can go into the whole thing if it should be produced in the form in which it was kept. So yeah, if you have somebody who’s doing this and they’re doing it on purpose. Now you may have somebody who’s doing this who’s just doing it because they’re not competent to do it the right way, which is a different story. But if they’re doing it on purpose like the sample I talked about earlier, then yeah, that’s unethical clearly. They’re specifically doing it to hamper your access to that information. And courts not only are going to slap people on the wrist, but they’ll probably sanction the parties for doing it if you can prove it was intentional. And it’s absolutely unethical. At the end of the day, whether it’s the discovery or any other part of litigation, courts don’t like games. And that clearly would fall into that category. 

I think we’ve got one more here. Looking ahead on with the unprecedented search of remote workers in small, medium, midsize, and global organizations. What foreseen legal road barriers with the eDiscovery process and obtaining legal hold and preservation to US data on international virtual cloud servers – does GDPR address the steps? 

This is a topic we could spend an hour talking about, I think. The biggest thing that corporations are going to face with the remote workers is to the extent corporations weren’t prepared for this and kind of left employees to their own devices to figure out how to access their corporate data. And now you may have all sorts of corporate data on personal computers and tablets and whatever. It might no longer exist on the corporate network. Then yeah, it’s going to make it much more complicated, and something you’re going to have to talk about. It’s actually, that’s a good point. When you’re talking to IT, you can talk about okay, what did you do in COVID? Like how did your employees access and save their information? In our corporation, we’re very much in the cloud already with Azure and Office 365, and Microsoft Teams and all of that. So when we moved over, and all of our employees have encrypted laptops, so when we moved over to remote, it was all the same corporate-owned equipment, encrypted stuff, online systems. So we don’t have this issue because we were already there. But we do have clients who weren’t there at all and didn’t have computers. Their employees could go home, and now they’re using all their home computers. So it’s a really big question and something you need to be concerned about. And Barry, do you want to say anything about GDPR really quick?

Barry: Well, with Covid-19, the courts in judicial proceedings and EU haven’t figured out how to deal with the various privacy issues yet that are related to tracking and so forth of infections or contact points for individuals who have become infected with Covid-19. And so that information, once it’s being accumulated, has not been addressed with various tribunals in the EU yet as to how that information is protected under the GDPR rules, which are rather stringent. And I suspect that there will be some claw backs going forward. 

Brian: So that was the final question. We’ll probably put a little bit more detailed answers to some of these questions on our blog post as well. And just to give a little quick shout out, in about two weeks, tentatively scheduled for May 6th, everybody on this will get a notice and an invite to our next ACEDS sponsored presentation. We’re going to talk specifically about some of the impacts of Covid-19 and the lockdowns and everything else on specifically, not only how is that going to change some of the processes in eDiscovery and litigations and discovery in general, not just eDiscovery, but also very important is some clear at least seven steps, seven ways in which you can implement some of this technology and processes to help significantly reduce the cost of eDiscovery. Because like you saw the TAR example before, that’s just tip of the iceberg. Not only is everybody having cost pressures from the pandemic and having to reduce budgets and reduce. The last thing we want to do is see people spend money on eDiscovery and have to let employees go because they don’t have the money for it. So we’re going to be going through every step of the EDRM process and giving you hints and help. How do you control that budget? How do you bring it down? Because even after the pandemic is gone and we get back to work, the economic and potential recession impacts are going to last a while. So it’s a hot topic. We’re helping our clients identify it a lot. We’re putting it together, and hopefully, we’ll have you back for that. And with that, I think Mike; we’re done. 

Mike: Great. Thank you, Brian. Alright, everyone. Thank you so much for joining us on the ACEDS webinar channel today. Thank you to Brian and to Barry for a fantastic presentation, and of course, our partner BIA for a great presentation. You can visit BIA at biaprotect.com. And please visit aceds.org for a complete list of our coming webinars. Have a great day, everyone. 

Brian: Thank you, everyone. Have a great day. Stay safe and healthy. 

Barry: Bye, all.